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u cture services to the approved Units in
accordance with the agreement entered into by him with the entrepreneurs of such Units.
4. Establishment of Special Economic Zone and approval and authorisat ion to operate it to ,
Developer .(1) The Developer shall, a fter the grant of letter of approval under sub -section ( 10) of
section 3, submit the exact particulars of the identified area referred to in sub -sections ( 2) to ( 4) of that
section, to the Central Government and thereupon that Government may, after satisfy ing that the
requirements, under sub -section ( 8) of section 3 and other requirements, as may be prescribed, are
fulfilled, notify the specifically identified area in the State as a Special Economic Zone:
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Provided that an existing Special Economic Zone shal l be deemed to have been notified and
established in accordance with the provisions of this Act and the provisions of this Act shall, as far as
may be, apply to such Zone accordingly:
Provided further that the Central Government may, after notifying the Sp ecial Economic Zone, if it
considers appropriate, notify subsequently any additional area to be included as a part of that Special
Economic Zone.
(2) After the appointed day, the Board may, authorise the Developer to undertake in a Special
Economic Zone, s uch operations which the Central Government may authorise.
5. Guidelines for n otifying Special Economic Zone .The Central Government, while notifying
any area as a Special Economic Zone or an additional area to be included in the Special Economic Zone
and discharging its functions under this Act, shall be g uided by the following, namely:
(a) generation of additional economic activity;
(b) promotion of exports of goods and services;
(c) promotion of investment from domestic and foreign sources;
(d) creation of employment opportunities;
(e) development of infrastructure facilities; and
(f) maintenance of sovereignty and integrity of India, the security of the State and friendly
relations with foreign States.
6. Proce ssing and non -processing areas .The areas falling within the Special Economic Zones
may be demarcated by the Central Government or any authority specified by it as
(a) the processing area for setting up Units for activities, being the manufacture of goods, or
rendering services; or
(b) the area exclusively for trading or warehousing purposes; or
(c) the non -processing areas for activities other than those specified under clause ( a) or clause ( b).
7. Exempt ion from taxes, duties or cess .Any goods or services exported out of, or imported int o,
or procured fr om the Domestic Tariff Area by,
(i) a Unit in a Special Economic Zone; or
(ii) a Developer,
shall, subject to such terms, conditions and limitations, as may be prescribed, be exempt from the
payment of taxes, duties or cess under all enac tments specified in the First Schedule.
CHAPTER III
CONSTITUTION OF BOARD OF APPROVAL
8. Con stitution of Board of Approval .(1) The Central Government shall, within fifteen days of
the commencement of this Act, by notification, constitute, for the purposes of this Act, a Board to be
called the Board of Approval.
(2) The Board shall consist of
(a) an officer not below the rank of an Additional Secretary to the Government of India in the
Ministry or Department of the Central G overnment dealing with commerce Chairperson, ex officio ;
(b) two officers, not below the rank of a Joint Secretary to the Government of India, to be
nominated by the Central Government to represent the Ministry or Department of the Central
Government dealing with revenue Members, ex offi cio;
(c) one officer not below the rank of a Joint Secretary to the Government of India to be nominated
by the Central Government to represent the Ministry or Department of the Central Government
dealing with economi c affairs (financial services) Member, ex officio ;
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(d) such number of officers, not exceeding ten, not below the rank of the Joint Secretary to the
Government of India, to be nominated by the Central Government to represent the Ministries or
Departments of the Central Government dealing with co mmerce, industrial policy and promotion,
science and technology, small scale industries and agro and rural industries, home affairs, defence,
environment and forests, law, overseas India n affairs and urban development Members, ex officio ;
(e) a nominee of the State Government concerned Member, ex officio ;
(f) the Director General of Foreign Trade or his nominee Member, ex officio ;
(g) the Dev elopment Commissioner concerned Member, ex officio ;
(h) a Professor in the Indian Institute of Management, being a society registered under the
Societies Registration Act, 1860 (21 of 1860) or the Indian Institute of Foreign Trade, being a society
registered under the Societies Registration Act, 1860, as may be, nomi nated by the Central
Government Member, ex officio ;
(i) an officer not below the rank of Deputy Secretary to the Government of India dealing with the
Special Economic Zones in the Ministry or Department of the Central Government, dealing with
commerce to be nomi nated by the Central Government Member -Secretar y, ex officio :
Provided that the member, being the Joint Secretary, nominated under clauses ( b) to ( d) of this
sub-section may, if he is unable to attend the meeting of the Board, authorise any other officer to attend
the meeting of the Board on his behal f.
(3) The term of office of an ex officio Member shall come to an end as soon as he ceases to hold the
office by virtue of which he was so nominated.
(4) For the purposes of performing its functions, the Board may co -opt as members, such number of
persons as it deems fit, who have special knowledge of, and practical experience in, matters relating to, or
relevant to activity connected with the Special Economic Zones and any such person shall have the right
to take part in the discussions of the Board but s hall not be counted for the quorum and shall not be a
member for any other purpose and such person shall be entitled to receive such allowances or fees, as the
case may be, fixed by the Board.
(5) The Board shall meet at such times and places as may be app ointed by it and shall have the power
to regulate its own procedure.
(6) One -third of the total Members of the Board shall form a quorum, and all the acts of the Board
shall be decided by a general consensus of the Members present.
(7) No act or proceeding of the Board shall be called in question on the ground merely of existence of
any vacancy in, or any defect in the constitution of, the Board.
(8) All orders and decisions of the Board and all other instruments issued by it shall be authenticated
by the s ignature of the Member -Secretary, or any other Member as may be authorised by the Board in this
behalf.
9. Duties, powers and functions of Board .(1) Subject to the provisions of this Act, the Board
shall have the duty to promote and ensure orderly development of the Special Economic Zones.
(2) Without prejudice to the generality of the provisions contained in sub -section ( 1), the powers and
functions of the Board shall include
(a) granting of approval or rejecting proposal or modifying such proposa ls for establishment of
the Special Economic Zones;
(b) granting approval of authorised operations to be carried out in the Special Economic Zones by
the Developer;
(c) granting of approval to the Developers or Units (other than the Developers or the Units which
are exempt from obtaining approval under any law or by the Central Government) for foreign
collaborations and foreign direct investments (including investments by a person resident outside
India), in the Special Economic Zone for its development, op eration and maintenance;
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(d) granting of approval or rejecting of proposal for providing infrastructure facilities in a Special
Economic Zone or modifying such proposals;
(e) granting, notwithstanding anything contained in the Industries (Development and Regulation)
Act, 1951 (65 of 1951), a licence to an industrial undertaking referred to in clause ( d) of section 3 of
that Act, if such undertaking is established, as a whole or part thereof, or proposed to be established,
in a Special Economic Zone;
(f) suspension of the letter of approval granted to a Developer and appointment of an
Administrator under sub -section ( 1) of section 10;
(g) disposing of appeals preferred under sub -section ( 4) of section 15;
(h) disposing of appeals preferred under sub -section ( 4) of section 16;
(i) performing such other functions as may be assigned to it by the Central Government.
(3) The Board may, if so required for the purposes of this Act or any other law for the time being in
force relating to Special Economic Zones, by notification, decide as to whether a particular activity
constitutes manufacture as defined in clause ( r) of section 2 and such decision of the Bo ard shall be
binding on all Ministries and Departments of the Central Government.
(4) The Board may delegate such powers and functions as it may deem fit to one or more
Development Commissioners for effective and proper discharge of the functions of the Bo ard.
(5) Without prejudice to the foregoing provisions of this Act, the Board shall, in exercise of its
powers or the performance of its functions under this Act, be bound by such directions on questions of
policy as the Central Government may give in writ ing to it from time to time.
(6) The decision of the Central Government whether a question is one of policy or not shall be final.
10. Suspension of letter of approval and transfer of Special Economic Zone in certain cases .
(1) If, at any time, the Board i s of the opinion that a Devel oper
(a) is unable to discharge the functions or perform the duties imposed on him by or under the
provisions of this Act or rules made thereunder; or
(b) has persistently defaulted in complying with any direction given by the Board under this Act;
or
(c) has violated the terms and conditions of the letter of approval; or
(d) whose financial position is such that he is unable to fully and efficiently discharge the duties
and obligations imposed on him by the letter of approval, and
the circumstances exist which render it necessary for it in public interest so to do, the Board may, on
application, or with the consent of the Developer, or otherwise, for reasons t o be recorded in writing,
suspend the letter of approval, granted to the Developer for a whole or part of his area established as
Special Economic Zone, for a period not exceeding one year and appoint an Administrator to discharge
the functions of the Deve loper in accordance with the terms and conditions of the letter of approval and
manage the Special Economic Zone accordingly.
(2) Consequent upon appointment of an Administrator, the management of the Special Economic
Zone of the Developer referred to in s ub-section ( 1) shall vest in the Administrator.
(3) No letter of approval shall be suspended under sub -section ( 1) unless the Board has given to the
Developer not less than three months' notice, in writing, stating the grounds on which it proposes to
suspe nd the letter of approval, and has considered any cause shown by the Developer within the period of
that notice, against the proposed suspension.
(4) The Board may, instead of suspending the letter of approval under sub -section ( 1), permit it to
remain in force subject to such further terms and conditions as it thinks fit to impose, and any further
terms or conditions so imposed shall be binding upon and be complied with by the Developer and shall be
of like force and effect as if they were contained in the letter of approval.
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(5) In case the Board suspends a letter of approval under this section, it shall serve a notice of
suspension upon the Developer and fix a date on which the suspension shall take effect.
(6) Upon suspension of the letter of approval under sub -section ( 1), the Special Economic Zone of the
Developer referred to in sub -section ( 5) shall vest in the Administrator under sub -section ( 2) for a period
not exceeding one year or up to the date on which the letter of approval for such Special Ec onomic Zone
is transferred, whichever is earlier, in accordance with the provisions contained in sub -sections ( 7) and
(9), as the case may be.
(7) Where the Board has given notice for suspension of letter of approval under sub -section ( 5), the
Developer ma y, after prior approval of the Board, transfer his letter of approval to any person who is
found eligible by the Board for grant of such approval.
(8) If at any time, it appears to the Board that the purpose of the order appointing the Administrator
has be en fulfilled or that for any reason it is undesirable that the order of appointment should remain in
force, the Board may cancel the order and thereupon the Administrator shall be divested of the
management of the Special Economic Zone which shall, unless otherwise directed by the Board, again
vest in the person, being the Developer, in whom it was vested immediately prior to the date of
appointment of the Administrator.
(9) Where the Board suspends the letter of approval, under this section, in respect of any Developer,
the following provisions shall apply, namely:
(a) the Board shall invite applications for transferring the letter of approval of the Developer,
whose appro val has been suspended and select the person or persons, in accordance with the
procedure as may be prescribed, to whom the letter of approval of the Developer in the Special
Economic Zone may be transferred;
(b) upon selection of person or persons under s ub-clause ( a), the Board may, by notice in writing,
require the Developer to transfer his letter of approval in a Special Economic Zone to the person or
persons so selected and thereupon the Developer shall transfer his interests, rights and liabilities in the
Special Economic Zone to any of the persons (hereafter in this section referred to as the transferee )
who has been selected by the Board on such terms and conditions and consideration as may be agreed
upon between the Developer and the transferee;
(c) all the rights, duties, obligations and liabilities of the Developer, on and from the date of
suspension of letter of approval or on and from the date, if earlier, on which his letter of approval in
the Special Economic Zone of the Developer has been tr ansferred to the transferee, shall cease
absolutely except for any liabilities which have accrued prior to that date;
(d) the Board may make such interim arrangements in regard to the operation of the Special
Economic Zone as may be considered appropriate;
(e) the Administrator shall exercise such powers and discharge such functions as the Board may
direct.
(10) The Board may, in order to promote export or to protect the interest of Units or in the public
interest, issue such directions or formulate such sc heme as it may consider necessary for operation of the
Special Economic Zone.
CHAPTER IV
DEVELOPMENT COMMISSIONER
11. Development Commissioner .(1) The Central Government may appoint any of its officers not
below the rank of Deputy Secretary to the Government of India as the Development Commissioner of one
or more Special Economic Zones.
(2) The Central Government may appoint such officers and other employees as it considers necessary
to assist the Development Commissioner in the |
ones.
(2) The Central Government may appoint such officers and other employees as it considers necessary
to assist the Development Commissioner in the performance of his f unctions in the Special Economic
Zones established by a Developer (other than the Central Government) under this Act on such terms and
conditions as it deems fit.
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(3) Every Development Commissioner, officer and other employee shall be entitled to such sala ry and
allowances and subject to such terms and conditions of service in respect of leave, pension, provident
fund and other matters as may, from time to time, be specified by the Central Government.
12. Functions of Development Commissioner .(1) Every Dev elopment Commissioner shall take
all steps in order to discharge his functions under this Act to ensure speedy development of the Special
Economic Zone and promotion of exports therefrom.
(2) Without prejudice to the generality of the foregoing provisions, the Development Commissioner
shall
(a) guide the entrepreneurs for setting up of Units in the Special Economic Zone;
(b) ensure and take suitable steps for effective promotion of exports from the Special Economic
Zone;
(c) ensure proper co -ordination with the Central Government or State Government Departments
concerned or agencies with respect to, or for the purposes, of clauses ( a) and ( b);
(d) monitor the performance of the Developer and the Units in a Special Economic Zone;
(e) discharge such other functions as may be assigned to him by the Central Government under
this Act or any other law for the time being in force; and
(f) discharge such other functions as may be delegated to him by the Board.
(3) Every Development Commissioner shall be overall i n-charge of the Special Economic Zone and
shall exercise administrative control and supervision over the officers and employees appointed under
sub-section ( 2) of section 11 (including the officials deputed to such Special Economic Zone) to discharge
any o f the functions under this Act.
(4) Without prejudice to the provisions of sub -sections ( 1) to ( 3), every Development Commissioner
shall discharge such functions and exercise such powers as may be delegated to him by a general or
special order by the Centr al Government or the State Government concerned, as the case may be.
(5) Every Development Commissioner may call for such information from a Developer or Unit from
time to time as may be necessary to monitor the performance of the Developer or the Unit, as the case
may be.
(6) The Development Commissioner may delegate any or all of his powers or functions to any of the
officers employed under him.
CHAPTER V
SINGLE WINDOW CLEARANCE
13. Cons titution of Approval Committee .(1) The Ce ntral Government shall,
(a) in the case of existing Special Economic Zones, within six months from the date of
commencement of this Act;
(b) in case of other Special Economic Zones established after the commencement of this Act,
within six months from the date of establishment of s uch Special Economic Zone,
by notification, constitute a Committee for every Special Economic Zone, to be called the Approval
Committee to exercise the powers and perform the functions specified in section 14.
(2) Every Approval Com mittee shall consist of
(a) the Development Commissioner Chairperson, ex officio ;
(b) two officers of the Central Government to be nominated by that Government Members,
ex officio ;
(c) two officers of the Central Government to be nominated by that Government to represent the
Ministry or Department dealing with revenue Members, ex officio ;
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(d) one officer of the Central Government to be nominated by that Government to represent the
Ministry or Department dealing with econom ic affairs (financial services) Member, ex officio ;
(e) two officers of the State Government concerned to be nom inated by that State Government
Members, ex officio ;
(f) a representa tive of the Developer concerned Special invitee.
(3) For the purpose of exercising its powers and performing its functions, the App roval Committee
may invite to its meetings, such persons as the Committee deems fit, whose assistance or advice it may
consider necessary.
(4) Every Approval Committee shall meet at such times and places as it considers necessary and shall
have the power t o regulate its own procedure.
(5) One -half of the total Members of the Approval Committee shall form a quorum, and all the acts of
the Approval Committee shall be decided by a general consensus of the Members present:
Provided that in case the Approval Com mittee is unable to decide any matter by a general consensus,
such matter shall stand referred to the Boar d of Approval for its decision.
(6) No act of the Approval Committee shall be called in question on the ground merely of existence
of any vacancy in, or any defect in the constitution of, the Approval Committee.
(7) All orders and decisions of the Approval Committee and all other communications issued by it
shall be authenticated by the signature of the Chairperson or any other member as may be authoris ed by
the Approval Committee in this behalf.
(8) The term of office of an ex officio Member shall come to an end as soon as he ceases to hold
office by virtue of which he was so nominated.
14. Powers and f unctions of Approval Committee .(1) Every Approval Committee may discharge
the functions and exercise the powers in respect of the following matters, namely:
(a) approve the import or procurement of goods from the Domestic Tariff Area, in the Special
Economic Zone for carrying on the authorised operations by a Developer;
(b) approve the providing of services by a service provider, from outside India, or from the
Domestic Tariff Area, for carrying on the authorised operations by the Developer, in the Special
Economic Zone;
(c) monitor the utilisation of goo ds or services or warehousing or trading in the Special Economic
Zone;
(d) approve, modify or reject proposals for setting up Units for manufacturing or rendering
services or warehousing or trading in the Special Economic Zone [other than the grant of lice nce
under clause ( e) of sub -section ( 2) of section 9] in accordance with the provisions of sub -section ( 8)
of section 15:
Provided that where the Approval Committee is unable to decide whether a particular process
constitutes manufacture or not it shall re fer the same to the Board of Approval for decision;
(e) allow, on receipt of approval under clause ( c) of sub -section ( 2) of section 9, foreign
collaborations and foreign direct investments (including investments by a person outside India) for
setting up a Unit;
(f) monitor and supervise compliance of conditions subject to which the letter of approval or
permission, if any, has been granted to the Developer or entrepreneur; and
(g) perform such other functions as may be entrusted to it by the Central Government or the State
Government concerned, as the case may be.
(2) The Approval Committee shall not discharge such functions and exercise such powers referred to
in sub -section ( 1) in relation to a Developer, being the Central Government, as may be specified, by
notifica tion, by the Central Government :
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Provided that till such time, the Approval Committee is constituted, the concerned Development
Commissioner shall discharge all function s and exercise all powers of the Approval Committee.
15. Setting up of Un it.(1) Any person, who intends to set up a Unit for carrying on the authorised
operations in a Special Economic Zone, may submit a proposal to the Development Commissioner
concerned in such form and manner containing such particulars as may be prescribed:
Provided that an existing Unit shall be deemed to have been set up in accordance with the provisions
of this Act and such Units shall not r equire approval under this Act.
(2) On rece ipt of the proposal under sub -section ( 1), the Development Commissioner shall submit the
same to the Approval Committee for its approval.
(3) The Approval Committee may, either approve the proposal without modification, or approve the
proposal with modific ations subject to such terms and conditions as it may deem fit to impose, or reject
the proposal in accordance with the provisions of sub -section ( 8):
Provided that in case of modification or rejection of a proposal, the Approval Committee shall afford
a reasonable opportunity of being heard to the person concerned and after recording the reasons, either
modify or reject the proposal.
(4) Any person aggrieved by an order of the Approval Committee, made under sub -section ( 3), may
prefer an appeal to the Boa rd within such time as may be prescribed.
(5) No appeal shall be admitted if it is preferred after the expiry of the time prescribed therefor:
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the
appellant satis fies the Board that he had sufficient cause for not preferring the appeal within the
prescribed time.
(6) Every appeal made under sub -section ( 4) shall be in such form and shall be accompanied by a
copy of the order appealed against and by such fees as may be prescribed.
(7) The procedure for disposing of an appeal shall be such as may be prescribed:
Provided that before disposing of an appeal, the appellant shall be given a reasonable opportunity of
being heard.
(8) The Ce ntral Government may prescribe,
(a) the requirements (including the period for which a Unit may be set up) subject to which the
Approval Committee shall approve, modify or reject any proposal referred to in sub -section ( 3);
(b) the terms and conditions, subject to which the Unit shall und ertake the authorised operations
and it s obligations and entitlements.
(9) The Development Commissioner may, after approval of the proposal referred to in sub -section
(3), grant a letter of approval to the person concerned to set up a Unit and undertake su ch operations
which the Development Commissioner may authorise and every such operation so authorised shall be
mentioned in the letter of approval.
16. Cancellation of lett er of approval to entrepreneur .(1) The Approval Committee may, at any
time, if it has any reason or cause to believe that the entrepreneur has persistently contravened any of the
terms and conditions or its obligations subject to which the letter of approval was granted to the
entrepreneur, cancel the letter of approval:
Provided that n o such letter of approval shall be cancelled unless the entrepreneur has been afforded a
reasonable opportunity of being heard.
(2) Where the letter of approval has been cancelled under sub -section ( 1), the Unit shall not, from the
date of such cancellatio n, be entitled to any exemption, concession, benefit or deduction available to it,
being a Unit, under this Act.
(3) Without prejudice to the provisions of this Act, the entrepreneur whose letter of approval has been
cancelled under sub -section ( 1), shall remit, the exemption, concession, drawback and any other benefit
15
availed by him in respect of the capital goods, finished goods lying in stock and unutilised raw materials
relatable to his Unit, in such manner as may be prescribed.
(4) Any person aggrieved by an order of the Approval Committee made under sub -section ( 1), may
prefer an appeal to the Board within such time as may be prescribed.
(5) No appeal shall be admitted if it is preferred after the expiry of the time prescribed therefor:
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the
appellant satisfies the Board that he had sufficient cause for not preferring the appeal within the
prescribed time.
(6) Every appeal made under sub -section ( 4) shall be in such form and shall be accompanied by a
copy of the order appealed against and by such fees as may be prescribed.
(7) The procedure for disposing of an appeal shall be such as may be prescribed:
Provided that before disposing of an appeal, the appellant shall be given a reasonable opportunity of
being heard.
17. Setting up and operation of Offshore Banking Unit .(1) An application for setting up and
operation of an Offshore Banking Unit in a Special Economic Zone may be made to the Reserve Bank in
such form and manner as may be prescribed.
(2) On receipt of an application under sub -section ( 1), the Reserve Bank shall, if it is satisfied that the
applicant fulfils all the conditions specified under sub -section ( 3), grant permission to such applicant for
setting up and operation of an Offshore Banking Unit.
(3) The Reserve Bank may, by notification, specify the terms and conditions subject to which an
Offshore Banking Unit may be set up and operated in the Special Economic Zone.
18. Setting up of Internati onal Financial Services Centre .(1) The Central Government may
approve the setting up of an International Financial Services Centre in a Special Economic Zone and
prescribe the requirements for setting up and operation of such Centre:
Provided that the Cent ral Government shall approve only one International Financial Services Centre
in a Special Economic Zone.
(2) The Central Government may, subject to such guidelines as may be framed by the Reserve Bank,
the Securities and Exchange Board of India, the Insurance Regulatory and Development Authority and
such other concerned authorities, as it deems fit, prescribe the requirements for setting up and the terms
and conditions of the operation of Units in an International Financial Services Centre.
19. Single application form, return, etc .Notwithstanding anything contained in any other law for
the time being in force, the Centr al Government may, if required,
(a) prescribe a single application form for obtaining any licence, permission or registration or
approval by a Developer, or an entrepreneur under one or more Central Acts;
(b) authorise the Board, the Development Commissioner or Approval Committee, to exercise the
powers of the Central Government on matters relating to the development of a Special Econom ic
Zone or setting up and operation of Units;
(c) prescribe a single form for furnishing returns or information by a Developer or an
entrepreneur under one or more Central Acts.
20. Agency to inspect .Notwithstanding anything contained in any other law for the time being in
force, the Central Government may, by notification, specify any officer or agency to carry out surveys or
inspections for securing of compliance with the provisions of any Central Act by a Developer or an
entrepreneur, as the case may be , and such officer or agency shall submit verification and compliance
reports, in such manner and within such time as may be specified in the said notification.
21. Single enforcement officer o r agency for notified offences .(1) The Central Government may,
by notification, specify any act or omission made punishable under any Central Act, as notified offence
for th e purposes of this Act.
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(2) The Central Government may, by general or special order, authorise any officer or agency to be
the enforcement office r or agency in respect of any notified offence or offences committed in a Special
Economic Zone.
(3) Every officer or agency authorised under sub -section ( 2) shall have all the corresponding powers
of investigation, inspection, search or seizure as is provided under the relevant Central Act in respect of
the notified offences.
22. Investigation, inspection, search o r seizure .The agency or officer, specified under section 20
or section 21, may, with prior intimation to the Development Commissioner conce rned, carry out the
investig |
20
or section 21, may, with prior intimation to the Development Commissioner conce rned, carry out the
investigation, inspection, search or seizure in the Special Economic Zone or in a Unit if such agency or
officer has reasons to believe (reasons to be recorded in writing) that a notified offence has been
committed or is likely to be co mmitted in the Special Economic Zone:
Provided that no investigation, inspection, search or seizure shall be carried out in a Special
Economic Zone by any agency or officer other than those referred to in sub -section ( 2) or sub -section ( 3)
of section 21 without prior approval of the Development Commissioner concerned:
Provided further that any officer or agency, if so authorised by the Central Government, may carry
out the investigation, inspection, search or seizure in the Special Economic Zone or Unit w ithout prior
intimation or approval of the Development Commissioner.
23. Designated Courts to try suits and notified off ences .(1) The State Government, in which the
Special Economic Zone is situated, may, with the concurrence of the Chief Justice of the H igh Court of
that Stat e, designate one or more courts
(a) to try all suits of a civil nature arising in the Special Economic Zone; and
(b) to try notified offences committed in the Special Economic Zone.
(2) No court, other than the court designated under sub-section ( 1), shall try any suit or conduct the
trial of any notified offence referred to in that sub -section:
Provided that the courts, in which any suit of a civil nature in a Special Economic Zone had been filed
before the commencement of this Act, shall continue to try such suit after such commencement:
Provided further that the courts, in which any trial of any notified offence is being conducted before
the commencement of this Act, shall continue to conduct the trial of such offence after the
comm encement of this Act:
Provided also that the courts competent to try any notified offence, before the commencement of this
Act, shall conduct the trial in respect of such offence after the commencement of this Act until the courts
have been designated unde r sub -section ( 1) and all such cases relating to such trials shall thereafter be
transferred to such courts so designated which shall conduct the trial from the stage at which such cases
were so transferred.
24. Appeal to High Court .Any person aggrieved, by any decision or order of the court designated
under sub -section ( 1) of section 23, may file an appeal to the High Court within sixty days from the date
of communication of the decision or order of the courts so designated to him on any question of fact or
law arising out of such orders:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause
from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty
days.
Explanation .In section 23 and in this section High Court means the High Court of the State in
which the Special Economic Zone is situated.
25. Offences by companies .(1) Where an offence has been committed by a company, every
person, who at the time the offence was committed was in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished acc ordingly:
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Provided that nothing contained in this sub -section shall render any such person liable to any
punishment provided for the offence, if he has proved that the offence was committed without his
knowledge or that he had exercised all due diligence t o prevent the commission of such offence.
(2) Notwithstanding anything contained in sub -section ( 1), where an offence has been committed by a
company and it is proved that the offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or other officer of the company,
such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall
be liable to be proceeded against and punished a ccordingly.
Explanation .For the purposes of this section,
(a) company means any body corporate and includes a firm or other association of individuals;
and
(b) director , in relation to a firm, means a partner in the firm.
CHAPTER VI
SPECIAL FISCAL PROVISIONS FOR SPECIAL ECONOMI C ZONES
26. Exemptions, drawbacks and concessions to every Developer and entrepreneur .(1) Subject
to the provisions of sub -section ( 2), every Developer and the entrepreneur shall be entitled to the
following exemptions, dra wbacks and concessions, namely:
(a) exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the
Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods
imported into, or services provided in, a Special Economic Zone or a Unit, to carry on the authorised
operations by the Developer or entrepreneur;
(b) exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the
Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods exported
from, or services provided, from a Special Economic Zone or from a Unit, to any place outside India;
(c) exemption from any duty of excise, under the Central Excise Act, 1944 (1 of 1944) or the
Centr al Excise Tariff Act, 1985 (5 of 1986) or any other law for the time being in force, on goods
brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised
operations by the Developer or entrepreneur;
(d) drawback or such other benefits as may be admissible from time to time on goods brought or
services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services
provided in a Special Economic Zone or Unit by the service providers located outside India to carry
on the authorised operations by the Developer or entrepreneur;
(e) exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable
services provided to a Developer or Unit to carry on the authorised operations in a Special Economic
Zone;
(f) exemption from the securities transaction tax leviable under section 98 of the Finance (No. 2)
Act, 2004 (23 of 2004) in case the taxable securities transactions are entered into by a non -resident
through the International Fin ancial Services Centre;
(g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers
under the Central Sales Tax Act, 1956 (74 of 1956) if such goods are meant to carry on the authorised
operations by the Developer or entrepr eneur.
(2) The Central Government may prescribe, the manner in which, and, the terms and conditions
subject to which, the exemptions, concessions, drawback or other benefits shall be granted to the
Developer or entrepreneur under sub -section ( 1).
27. Provi sions of Income -tax Act, 1961 to apply with certain modification in relation t o
Developers and entrepreneurs .The provisions of the Income -tax Act, 1961 (43 of 1961), as in force
for the time being, shall apply to, or in relation to, the Developer or entre preneur for carrying on the
18
authorised operations in a Special Economic Zone or Unit subject to the modifications specified in the
Second Schedule.
28. Duration of goods or services in Special Economic Zones .The Central Government may
prescribe the period during which any goods brought into, or services provided in, any Unit or Special
Economic Zone without payment of taxes, duties or cess shall remain or continue to be provided in such
Unit or Special Economic Zone.
29. Transfer of ownership and removal o f goods .The transfer of ownership in any goods brought
into, or produced or manufactured in, any Unit or Special Economic Zone or removal thereof from such
Unit or Zone shall be allowed, subject to such terms and conditions as the Central Government may
prescribe.
30. Domestic clearance by Units .Subject to the conditions specified in the rules made by the
Central Government in this behalf,
(a) any goods removed from a Special Economic Zone to the Domestic Tariff Area shall be
chargeable to duties of customs including anti -dumping, countervailing and safeguard duties und er
the Customs Tariff Act, 1975 (51 of 1975), where applicable, as leviable on such goods when
imported; and
(b) the rate of duty and tariff valuation, if any, applicable to goods remov ed from a Special
Economic Zone shall be at the rate and tariff valuation in force as on the date of such removal, and
where such date is not ascertainable, on the date of payment of duty.
CHAPTER VII
SPECIAL ECONOMIC ZONE AUTHORITY
31. Constitution of Aut hority . (1) The Central Government shall, by notification in the Official
Gazette, constitute, for every Special Economic Zone established by it before the commencement of this
Act or which may be established after such commencement by the Central Government, an Authority to
be called the ...... (name of the Special Economic Zone) Authority to exercise the powers conferred on,
and discharge the functions assigned to, it under this Act:
Provided that in respect of existing Special Economic Zones esta blished by the Central Government,
such Authority shall be constituted by the Central Government within six months from the date of
commencement of this Act:
Provided further that until such Authority is constituted, the person or the authority (including the
Development Commissioner) exercising control over such existing Special Economic Zones shall
continue to exercise such control over the Special Economic Zone till the Authority is constituted.
(2) Every Authority shall be a body corporate by the name a foresaid, having perpetual succession and
a common seal, with a power, subject to the provisions of this Act, to acquire, hold and dispose of
property, both movable and immovable, and to contract and shall, by the said name, sue and be sued.
(3) The head o ffice of every Authority shall be at such place as the Central Government may specify
in the notification referred to in sub -section ( 1).
(4) Any Authority may, with the previous approval of the Central Government, establish branch
offices at other places in India.
(5) Every Authority shall consist of
(a) the Development Commissioner of the Special Economic Zone over which the Autho rity
exercises its jurisdiction Chairperson, ex officio ;
(b) two officers of the Central Government to be nominated by that Government having
knowledge of, or experience in, dealing with matters rel ating to Special Economic Zones Members,
ex officio ;
(c) an officer of the Government of India in the Ministry or Department dealing with commerce
on matters re lating to Special Econ omic Zone Member, ex officio ;
19
(d) not more than two persons, being entrepreneurs or their nominee, to be nomi nated by the
Central Government Members, ex officio ;
(6) The term of office of the Members of an Authority (other than ex officio Members) and the
manner of filling of vacancies shall be such as may be prescribed.
(7) An Authority may associate with itself in such manner, subject to such conditions and for such
purposes as may be prescribed, any person whose assistance or advice it requires in discha rging its
functions effectively and that person shall be entitled to receive such allowances or fees as may be fixed
by the Authority.
(8) One -third of the total Members of the Authority shall form a quorum, and all the acts of the
Authority shall be decid ed by a majority of the Members present.
(9) No act or proceeding of an Authority shall be invalidated merely by reason of
(a) any vacancy in, or any defect in the constitution of, the Authority; or
(b) any defect in the appointment of a person acting as a Member of the Authority; or
(c) any irregularity in the procedure of the Authority not affecting the merits of the case.
(10) Every Authority shall meet at such times and places and shall observe such rule s of procedure in
regard to the transaction of business at its meetings (including quorum at such meetings) as may be
prescribed.
32. Officer s of Authority and other staff .(1) Every Development Commissioner of the Special
Economic Zone, for which he is ap pointed as such, shall be the chief executive of the Authority
concerned and exercise such powers and perform such functions as may be prescribed.
(2) Every Authority may, in addition to the officers and employees transferred to it under section 33,
appoin t such other officers and employees, as it considers necessary for the efficient discharge of its
functions under this Act.
(3) The method of appointment, the conditions of service and the scales of pay and allowances of
such other officers and employees appointed under sub -section ( 2) shall be such as may be prescribed.
33. Special provision for transfer of officers o r other employees to Authority .(1) It shall be
lawful for the Central Government to transfer to each Authority, by order, and with effect f rom such date
or dates, as may be specified in the order, any officer or other employee holding office as such (except
officers or other employees on deputation) in the existing Special Economic Zone concerned:
Provided that the scale of pay of the post to which such officer or other employee is transferred shall
not be lower than the scale of pay of the post which he was holding immediately before such transfer and
the other terms and conditions of service (including pension, leave, provident fund and medi cal benefits)
of the post to which he is transferred shall not be less favourable than the terms and conditions of service
in relation to the post held by him immediately before such transfer:
Provided further that if, immediately before the date of his tr ansfer, any such officer or other
employee is officiating in a higher post under the Central Government either in a leave vacancy or in any
vacancy of a specified duration, his pay and other allowances, if any, on transfer, shall be protected for
the unexp ired period of such vacancy and thereafter he shall be entitled to the scale of pay applicable to
the post under the Central Government to which he would have reverted but for his transfer to the
Authority.
(2) If any question arises as to whether the pres cribed terms and conditions of service in respect of
any matter, including remuneration, pension, leave, provident fund and medical benefits, are less
favourable than those attached to the post held by an officer or other employee immediately before his
transfer to the Authority, the decision of the Central Government in the matter shall be final.
34. Functions of Authority .(1) Subject to the provisions of this Act, it shall be the duty of each
Authority to undertake such measures as it thinks fit for the development, operation and management of
the Special Economic Zone for which it is constituted.
20
( |
it thinks fit for the development, operation and management of
the Special Economic Zone for which it is constituted.
20
(2) Without prejudice to the generality of the provisions of sub -section ( 1), the measures referred to
therein may provide for
(a) the development of infrastru cture in the Special Economic Zone;
(b) promoting exports from the Special Economic Zone;
(c) reviewing the functioning and performanc e of the Special Economic Zone;
(d) levy user or service charges or fees or rent for the use of properties belonging to the
Authority;
(e) performing such other functions as may be prescribed.
35. Grants a nd loans by Central Government .The Central Government may, after due
appropriation made by Parliament by law in this behalf, make to every Authority by way of grants and
loans or such sums of money as that Government may think fit for being utilised for the purposes of this
Act.
36. Con stituti on of Fund and its application .(1) There shall be established by every Authority a
Fund to be called the.......... (the name of the Special Economic Zone concerned) Authority Fund and there
shall be credited thereto
(a) all sums of money, which the Central Government may, after due appropriation made by
Parliament by law in this behalf, provide to the Authority;
(b) all grants or loans that may be made to the Authority under this Act;
(c) all sums received on account of user or service charges or fees or rent for the use of properties
belonging to the Authority;
(d) all sums received by the Authority from such other sources as may be decided upon by the
Central Government.
(2) The Fu nd shall be applied for meeting
(a) the sa laries, allowances and other remuneration of the members, officers and other employees
of the Authority;
(b) the expenses of the Authority in the discharge of its functions under section 34;
(c) the repayment of any loan;
(d) the expenses on objects and fo r purposes authorised by this Act;
(e) any other administrative expenses of the Authority.
37. Accounts and audit .(1) Every Authority shall maintain proper accounts and other relevant
records and prepare an annual statement of accounts in such form as may be prescribed by the Central
Government, in consultation with the Comptroller and Auditor -General of India.
(2) The accounts of every Authority shall be audited by the Comptroller and Auditor -General of India
at such intervals as may be specified by him a nd any expenditure incurred in connection with such audit
shall be payable by the Authority to the Comptroller and Auditor -General of India.
(3) The Comptroller and Auditor -General of India or any person appointed by him in connection with
the audit of the accounts of the Authority shall have the same rights and privileges and authority in
connection with such audit as the Comptroller and Auditor -General of India generally has in connection
with the audit of the Government accounts and, in particular, shall have the right to demand the
production of books, accounts, connected vouchers and other documents and papers and to inspect any of
the offices of the Authority.
(4) The accounts of every Authority as certified by the Comptroller and Auditor -General of In dia or
any other person appointed by him in this behalf together with the audit report thereon shall be forwarded
annually to the Central Government and the Central Government shall cause the same to be laid before
each House of Parliament.
21
38. Di rections by Central Government .Every Authority shall be bound to carry out such
directions as may be issued to it from time to time by the Central Government for the efficient
administration of this Act.
39. Returns and reports .(1) Every Authority shall furnish to the Central Government at such time
and in such form and manner as may be prescribed or as the Central Government may direct, such returns
and statements and such particulars in regard to the promotion and development of exports and the
operation and ma intenance of the Special Economic Zone and Units as the Central Government may,
from time to time, require.
(2) Without prejudice to the provisions of sub -section ( 1), every Authority shall, as soon as possible,
after the end of each financial year, submit to the Central Government a report in such form and before
such date, as may be prescribed, giving a true and full account of its activities, policy and programmes
during the previous financial year.
(3) A copy of every report received under sub -section ( 2) shall be laid, as soon as may be, after it is
received, before each House of Parliament.
40. Power to supersede Authority .(1) If at any time the Central Government is of the opinion that
an Authority is unable to perform, or has persistently made defau lt in the performance of the duty
imposed on it by or under this Act or has exceeded or abused its powers, or has wilfully or without
sufficient cause, failed to comply with any direction issued by the Central Government under section 38,
the Central Gover nment may, by notification, supersede that Authority for such period not exceeding six
months, as may be specified in the notification:
Provided that before issuing a notification under this sub -section, the Central Government shall give
reasonable time to that Authority to make representation against the proposed supersession and shall
consider the representations, if any, of the Authority.
(2) Upon the publication of a notification under sub -section ( 1) superseding the Authority,
(a) the Chairperson and other Members of the Authority shall, notwithstanding that their term of
office has not expired as from the date of supersession, vacate their offices as such;
(b) all the powers, functions and duties which may, by or under the provisions of this Act, be
exercised or discharged by or on behalf of the Authority shall, during the period of supersession, be
exercised and performed by such person or persons as the Central Government may direct;
(c) all property vested in the Authority shall, du ring the period of supersession, vest in the Central
Government.
(3) On the expiration of the period of supersession specified in the notification issued under
sub-section ( 1), the Central Government may
(a) extend the period of supersession for such further period not exceeding six months; or
(b) reconstitute the Authority in the manner provided in section 31.
41 Members, officers and other employees of Authority to be public servants .All Members,
officers and oth er employees of every Authority, shall, when acting or purporting to act in pursuance of
any of the provisions of this Act or the rules made thereunder, be deemed to be public servants within the
meaning of section 21 of the Indian Penal Code (45 of 1860).
CHAPTER VIII
MISCELLANEOUS
42. Reference of dispute .(1) Notwithstanding anything contained in any other law for the time
being in force, if
(a) any dispute of civil nature arises among two or more entrepreneurs or two or more Developers
or between an entrepreneur and a Developer in the Special Economic Zone; and
22
(b) the court or the courts to try suits in respect of such dispute had not been designat ed under
sub-section ( 1) of section 23,
such dispute shall be referred to arbitration:
Provided that no dispute shall be referred to the arbitration on or after the date of the designation
of the court or courts under sub -section ( 1) of section 23.
(2) Whe re a dispute has been referred to arbitration under sub -section ( 1), the same shall be settled or
decided by the arbitrator to be appointed by the Central Government.
(3) Save as otherwise provided under this Act, the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996 ) shall apply to all arbitration under this Act as if the proceedings for arbitration were
referred in settlement or decision under the provisions of the Arbitration and Con ciliation Act, 1996 .
43. Limitation .(1) The peri od of limitation in the case of any dispute which is required to be
referred to arbitration shall be regulated by the provisions of the Limitation Act, 1963 (36 of 1963), as if
the dispute was a suit and the arbitrator is civil court.
(2) Notwithstanding anything contained in sub -section ( 1), the arbitrator may admit a dispute after the
expiry of the period of limitation, if the applicant satisfies the arbitrator that he had sufficient cause for
not referring the dispute within such period.
44. Applicabili ty of provisions of this Act to e xisting Special Economic Zones .All the
provisions of this Act (except sections 3 and 4) shall, as far as may be, apply to every existing Special
Economic Zone.
45. Person to whom a communicat ion may be sent under this Act .A communication by any
competent authority or person under this Act may be sent to the person who has the ultimate control over
the affairs of the Special Economic Zone or Unit or where the said affairs are entrusted to a manager,
director, chairperson, o r managing director, or to any other officer, by whatever name called, such
communication may be sent to such manager, director, chairperson, or managing director or any other
officer.
46. Identity Card.Every person, whether employed or residing or requir ed to be present in a
Special Economic Zone, shall be provided an identity card by every Development Commissioner of such
Special Economic Zone, in such form and containing such particulars as may be prescribed.
47. Authorities responsible for administrati on.Any authority which has been conferred upon any
power, or, is, required to discharge any function under any Central or State Act, may, subject to the
provisions of this Act, exercise such power or discharge such functions in any Special Economic Zone
under that Act.
48. Protection of action taken in good faith .No suit, prosecution or other legal proceeding shall
lie against the Central Government or any Chairperson, Member, officer or other employee of the Board
or the Approval Committee or the Authori ty or Development Commissioner for anything done or
intended to be done in good faith under this Act.
49. Power to modify provisions of this Act or other enactments in rela tion to Special Economic
Zones .(1) The Central Government may, by notification, direct that any of the provision of this Act
(other than sections 54 to 56) or any other Central Act or any rules or regulations made thereunder or any
notification or order issued or direction given thereunder (other than the provisions relating to making of
the rules or regulations ) specified in the notification
(a) shall not apply to a Special Economic Zone or a class of Special Economic Zones or all
Special Economic Zones; or
(b) shall apply to a Special Economic Zone or a class of Special Economic Zon es or all Special
Economic Zones only with such exceptions, modification and adaptation, as may be specified in the
notification:
Provided that nothing contained in this section shall apply to any modifications of any Central
Act or any rule or regulation made thereunder or any notification or order issued or direction given or
scheme made thereunder so far as such modification, rule, regulation, notification, order or direction
23
or scheme relates to the matters relating to trade unions, industrial and labou r disputes, welfare of
labour including conditions of work, provident funds, employers' liability, workmen's compensation,
invalidity and old age pensions and maternity benefits applicable in any Special Economic Zones.
(2) A copy of every notification pro posed to be issued under sub -section ( 1), shall be laid in draft
before each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expi ry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in
disapproving the issue of the notification or both Houses agree in making any modification in the
notification, the notification shall not be iss ued or, as the case may be, shall be issued only in such
modified form as may be agreed upon by both the Houses.
50. Power of State Gover nment to grant exemption .The State Government may, for the
purposes of giving effect to the provisions of this Act, no tify policies for Developers and Units and take
suitable steps for enactment of any law
(a) granting exemption from the State taxes, levies and duties to the Developer or the
entrepreneur;
(b) delegating the powers conferred upon any person or authority under any State Act to the
Development Commissioner in relation to the Developer or the entrepreneur.
51. Act to have overriding effect .The provisions of this Act shall have effect notwithstanding
anythin g inconsistent therewith contained in any other law for the time being in force or in any instrument
having effect by virtue of any law other than this Act.
52. C ertain provisions not to apply .(1) The provisions contained in the Chapter XA of the
Customs Act, 1962 (52 of 1962) and the Special Economic Zones Rules, 2003 and the Special Economic
Zones (Customs Procedure) Regulations, 2003 made thereunder shall not, with effect from such date as
the Central Government by notification appoint, apply to the Spe cial Economic Zones.
(2) Notwithstanding anything contained in sub -section ( 1), all offences committed, before the
commencement of this Act, under any provisions of the Customs Act, 1962 (52 of 1962) and the Special
Economic Zones Rules, 2003 and the Speci al Economic Zones (Customs Procedure) Regulations, 2003
made thereunder, shall continue to be governed by the said Act or rules, as the case may be.
(3) Anything done or any action taken or purported to have been done or taken including any rule,
notification, inspection, order or notice made or issued or any permission or authorisation or exemption
granted or any document or instrument executed under th e said provisions of the Act, rules and
regulations referred to in sub -section ( 1) shall, in so far as they are not inconsistent with the provisions of
this Act, be deemed to have been done or taken or made or issued or granted under the corresponding
provisions of the Act or rules or regulations referred to in that sub -section.
53. Special Economic Zones to be ports, airports, inland container depots, land st ations, etc., in
certain cases .A Special Economic Zone shall, on and from the appointed day, b e deemed to be a
territory outside the customs territory of India for the purposes of undertaking the authorised operations.
(2) A Special Economic Zone shall, with effect from such date as the Central Government may
notify, be deemed to be a port, airport , inland container depot, land station and land customs stations, as
the case may be, under section 7 of the Customs Act, 1962 (52 of 1962):
Provided that for the purposes of this section, the Central Government may notify different dates for
different Spe cial Economic Zones.
54. Amendment to First Schedule .(1) The Central Government may, having regard to the objects
of this Act, and if it considers necessary or expedient so to do, by notification add to, or as the case may
|
objects
of this Act, and if it considers necessary or expedient so to do, by notification add to, or as the case may
be, omit from the First Schedule any enactment specified therein.
(2) A copy of every notification proposed to be issued under sub -section ( 1), shall be laid in draft
before each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in
24
disapproving the issue of the notification or both Houses agree in making a ny modification in the
notification, the notification shall not be issued or, as the case may be, shall be issued only in such
modified form as may be agreed upon by both the Houses.
55. Power to make rules .(1) The Central Government may, by notification, make rules for
carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:
(a) the infrastructure facilities necessary for the development of the Special Economic Zones
under clause ( p) and services in the Special Economic Zones under clause ( z) of section 2;
(b) the period within which the person concerned shall obtain the concurrence of the State
Government under sub -section ( 3) of section 3;
(c) the form and the manner in which a proposal may be made and the particulars to be contained
therein under sub -section ( 5) of section 3;
(d) the period within which the State Government may forward the proposal together with its
recommendation under sub -section ( 6) of section 3;
(e) the requirements subject to which the Board may approve, modify or reject the proposal under
sub-section ( 8) of section 3;
(f) the period within which the grant of letter of approval shall be communicated to the State
Government or Developer or entrepreneur under sub -section ( 10) of section 3;
(g) the other requirements for notifying the specifical ly identified area in a State as a Special
Economic Zone under sub -section ( 1) of section 4;
(h) the terms, conditions and limitations subject to which the goods or services exported out of, or
imported into, or procured from the Domestic Tariff Area to, a Special Economic Zone, be exempt
from payment of taxes, duties, or cess under section 7;
(i) the procedure for transfer of letter of approval in case of suspension of letter of approval of a
Developer under clause ( a) of sub -section ( 9) of section 10;
(j) the form and the manner in which a proposal may be submitted and the particulars to be
contained therein under sub -section ( 1) of section 15;
(k) the time within which a person aggrieved by the order of the Approval Committee may prefer
an appeal under su b-section ( 4) of section 15;
(l) the form in which the appeal shall be made and the fees for making such appeal under
sub-section ( 6) of section 15;
(m) the procedure for disposing of an appeal under sub -section ( 7) of section 15;
(n) the requirements (including the period for which a Unit may be set up) subject to which the
proposal may be approved, modified or rejected under clause ( a) of sub -section ( 8) of section 15;
(o) the terms and conditions for the Unit subject to which it shall u ndertake authorised operations
under clause ( b) of sub -section ( 8) of section 15 and the obligations and entitlements of the Unit;
(p) the time within which a person aggrieved by the order of the Approval Committee may prefer
an appeal under sub -section ( 4) of section 16;
(q) the form in which the appeal shall be made and the fees for making such appeal under
sub-section ( 6) of section 16;
(r) the procedure for disposing of an appeal under sub -section ( 7) of section 16;
(s) the form and the manner in which an application may be made for setting up of an Offshore
Banking Unit in a Special Economic Zone under sub -section ( 1) of section 17;
25
(t) the requirements for setting up and operation of an International Financial Services Cen tre in a
Special Economic Zone under sub -section ( 1) of section 18 ;
(u) the requirements and terms and conditions subject to which a Unit in the International
Financial Services Centre may be set up and operated in a Special Economic Zone under sub -section
(2) of section 18;
(v) the form of single application for obtaining any li cence, permission or registration or approval
under clause ( a) of section 19;
(w) the form of single return or information to be furnished by an entrepreneur or Developer
under clause ( c) of section 19;
(x) the manner in which and the terms and conditions subject to which the exemptions,
concessions, draw back or other benefits shall be granted to every Developer and entrepreneur under
sub-section ( 2) of section 26;
(y) the period during which any goods brought into, or services provided in, any Special
Economic Zone shall remain or continue to be provided in such Unit or Special Economic Zone under
section 28;
(z) the terms and conditions subject to which transfer of ownership in any goods brought into, or
produced or manufactured in, any Unit or Special Ec onomic Zone, or removal thereof from such Unit
or Zone, shall be allowed under section 29;
(za) the conditions subject to which the Units shall be entitled to sell the goods manufactured in a
Special Economic Zone to the Domestic Tariff Area under section 30;
(zb) the term of office of the Members, other than ex officio Members, of every Authority and the
manner of filling of vacancies under sub -section ( 6) of section 31;
(zc) the manner in which and the conditions subject to which and the purposes for which any
person may be associated under sub -section ( 7) of section 31;
(zd) the times and the places of meetings and the procedure to be followed in the transaction of
business at the meetings under sub -section ( 10) of section 31;
(ze) the powers and the functions of every Development Commissioner under sub -section ( 1) of
section 32;
(zf) the method of appointment of officers and other employees of every Authority, conditions of
their service and the scale of pay and allowances under sub -section ( 3) of sec tion 32;
(zg) the other functions to be performed by the Authority under clause ( e) of sub -section ( 2) of
section 34;
(zh) the form in which the accounts and other relevant records of every Authority shall be
maintained and annual statement of accounts sha ll be prepared under sub -section ( 1) of section 37;
(zi) the form and the manner in which and the time at which every Authority shall furnish returns
and statements and other particulars to the Central Government under sub -section ( 1) of section 39;
(zj) the form in which and the date before which every Authority shall furnish to the Central
Government the report of its activities, policy and programmes under sub -section ( 2) of section 39;
(zk) the form in which and the particulars to be contained in the id entity cards under section 46;
(zl) any other matter which, is to be, or may be, prescribed.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it
is made, before each House of Parliament, while it is in ses sion, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in
makin g any modification in the rule or both Houses agree that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that
26
any such modification or annulment shall be wit hout prejudice to the validity of anything previously done
under that rule.
56. Po wer to remove difficulties .(1) If any difficulty arises in giving effect to the provisions of
this Act, the Central Government may, by order published in the Official Gazette, make such provisions
not inconsistent with the provisions of this Act, as may appear to it to be necessary or expedient for
removing the difficulty:
Provided that no such order shall be made under this section after the expiration of two years from the
date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each
House of Parliament.
57. A mendment of certain enactments .With effect from such date as the Central Government
may, by notification, appoint, the enactments specified in the Third Schedule shall be amended in the
manner specified therein:
Provided that different dates may be appointed on which the amendments specified in the Third
Schedule shall apply to a particu lar Special Economic Zone or a class of Special Economic Zones or all
Special Economic Zones.
58. Savings .All rules made or purporting to have been made or all notifications issued or
purporting to have been issued under any Central Act relating to the Sp ecial Economic Zones shall, in so
far as they relate to matters for which provision is made in this Act or rules made or notification issued
thereunder and are not inconsistent therewith, be deemed to have been made or issued under this Act as if
this Act had been in force on the date on which such rules were made or notifications were issued and
shall continue to be in force unless and until they are superseded by any rules made or notifications issued
under this Act.
27
THE FIRST SCHEDULE
(See sections 7 a nd 54)
ENACTMENTS
1. The Agricultural Produce Cess Act, 1940 (27 of 1940).
2. The Coffee Act, 1942 (7 of 1942).
3. The Mica Mines Labour Welfare Fund Act, 1946 (22 of 1946).
4. The Rubber Act, 1947 (24 of 1947).
5. The Tea Act, 1953 (29 of 1953).
6. The Salt Cess Act, 1953 (49 of 1953).
7. The Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955).
8. The Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957).
9. The Sugar (Regulation of Production) Ac t, 1961 (55 of 1961).
10. The Textiles Committee Act, 1963 (41 of 1963).
11. The Produce Cess Act, 1966 (15 of 1966).
12. The Marine Products Export Development Authority Act, 1972 (13 of 1972).
13. The Coal Mines (Conservation and Development ) Act, 19 74 (28 of 1974).
14. The Oil Industry (Development) Act, 1974 (47 of 1974).
15. The Tobacco Cess Act, 1975 (26 of 1975).
16. The Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978).
17. The Sugar Cess Act, 1982 (3 of 1982).
18. The Jute Manufactures Cess Act, 1983 (28 of 1983).
19. The Agricultural and Processed Food Products Export Cess Act, 1985 (3 of 1986).
20. The Spices Cess Act, 1986 (11 of 1986).
21. The Research and Development Cess Act, 198 6 (32 of 1986).
28
THE SECOND SCHEDULE
(See section 27)
MODIFICATIONS TO THE INCOME -TAX ACT, 1961
(43 OF 1961)
(a) in section 10,
(A) in clause ( 15), after sub -clause ( vii), the following clause shall be inserted at the end, n amely:
(viii) any income by way of interest received by a non -resident or a person who is not ordinarily
resident, in India on a deposit made on or after the 1st day of April, 2005 in an Offshore Banking Unit
referred to in clause ( u) of section 2 of the Special Economic Zones Act , 2005; ;
(B) in clause ( 23G), after the words, brackets, figures and letters sub-section ( 4) of section 80 -IA,
the words brackets, figures and letters or sub -section ( 3) of se ction 80 -IAB shall be inserted;
(C) in clause ( 34), the following Explana tion shall be inserted, namely:
Explanation .For the removal of doubts, it is hereby declared that the dividend referred to in
section 115 -O shall not be included in the total income of the assessee, being a Developer or
entrepreneur. ;
(b) in section 10A, after sub-section ( 7A), the following sub -section shall be inserted, namely:
(7B) The provisions of this section shall not apply to any undertaking, being a Unit referred to in
clause ( zc) of section 2 of the Special Economic Zones Act, 2005, which has begun or begins to
manufacture or produce articles or things or computer software during the previous year relevant to the
assessment year commencing on or after the 1st day of April, 2006 in any Special Economic Zone. ;
(c) after section 1 0A, the following sec tion shall be inserted, namely:
10AA. Special provisions in respect of newly established Units in Special Economic Zones .(1)
Subject to the provisions of this section, in computing the total income of an assessee, being an
entrepreneur as referred to in clause ( j) of section ( 2) of the Special Economic Zones Act, 2005, from his
Unit, who begins to manufacture or produce articles or things or provide any services during the previous
year relevant to any assessment year commen cing on or after the 1st day o f April, 2006, a deduction of
(i) hundred per cent. of profits and gains derived from the export, of such articles or things or
from services for a period of five consecutive assessment years beginning with the assessment ye ar
relevant to the previous year in which the Unit begins to manufacture or produce such articles or
things or provide services, as the case may be, and |
to the previous year in which the Unit begins to manufacture or produce such articles or
things or provide services, as the case may be, and fifty per cent. of such profits and gains for further
five assessment years and thereafter;
(ii) for th e next five consecutive assessment years, so much of the amount not exceeding fifty per
cent. of the profit as is debited to the profit and loss account of the previous year in respect of which
the deduction is to be allowed and credited to a reserve accou nt (to be called the Special Economic
Zone Re -investment Reserve Account ) to be created and utilised for the purposes of the business of
the assessee in the manner laid down in sub -section ( 2).
(2) The deduction under clause ( ii) of sub -section ( 1) shall be allowed only if the following con ditions
are fulfilled, namely:
(a) the amount credited to the Special Economic Zone Re -investment Res erve Account is to be
utilised
(i) for the purposes of acquiring machinery or plant which is first put to use before the expiry
of a period of three years following the previous year in which the reserve was created; and
(ii) until the acquisition of the machinery or plant as aforesaid, for the purposes of the
business of the undertaking other than for distribution by w ay of dividends or profits or for
remittance outside India as profits or for the creation of any asset outside India;
29
(b) the particulars, as may be specified by the Central Board of Direct Taxes in this behalf, under
clause ( b) of sub -section ( IB) of section 10A have been furnished by the assessee in respect of
machinery or plant along with the return of income for the assessment year relevant to the previous
year in which such plant or machinery was first put to use.
(3) Where any amount credited to the Special Economic Zone Re -investment Reserve Account under
clause ( ii) of sub -section ( 1),
(a) has been utilised for any purpose other than those referred to in sub -section ( 2), the amount so
utilised; or
(b) has not been utilised before the expiry of the period specified in sub -clause ( i) of clause ( a) of
sub-section ( 2), the amount not so utilised,
shall be deemed to be the profits,
(i) in a case referred to in clause ( a), in the year in which the amount was so utilised; or
(ii) in a case referred to in clause ( b), in the year immediately following the period of three years
specified in sub -clause ( i) of clause ( a) of sub -section ( 2),
and shall be charged to tax accordingly:
Provided that where in computing the total income of t he Unit for any assessment year, its profits and
gains had not been included by application of the provisions of sub -section ( 7B) of section 10A, the
undertaking being the Unit shall be entitled to deduction referred to in this sub -section only for the
unexpired period of ten consecutive assessment years and thereafter it shall be eligible for deduction from
income as provided in clause ( ii) of sub -section ( 1):
Explanation .For the removal of doubts, it is hereby declared that an undertaking being the Unit,
which had already availed before the commencement of the Special Economic Zone Act, 2005, the
deductions referred to in section 10A for ten consecutive assessment years, such Unit shall not be eligible
for deduction from income under this section:
Provided further that where a Unit initially located in any free trade zone or export processing zone is
subsequently located in a Special Economic Zone by reason of conversion of such free trade zone or
export processing zone into a Special Economic Zone, the period of ten consecutive assessment years
referred to above shall be reckoned from the assessment year relevant to the previous year in which the
Unit began to manufacture, or produce or process such articles or things or services in such free trade
zone or export processing zone:
Provided also that where a Unit initially located in any free trade zone or export processing zone is
subsequently located in a Special Economic Zone by reason of conversion of such free trade zone or
export processing zone into a Special Economic Zone and has completed the period of ten consecutive
assessment years referred to above, it shall not be eligible for deduction from income as provided in
clause ( ii) of sub -section ( 1) with effect from the 1st day of April, 2006.
(4) This section applies to any undertaking being the Unit, which has begun or begins to manufacture
or produce articles or things or services during the previous year relevant to the assessment year
commencing on or after the 1st day of April, 200 6, in any Special Economic Zone.
(5) Where any undertaking being the Unit which is entitled to the deduction under this section is
transferred, before the expiry of the period specified in this section, to another undertaking, being the Unit
in a schem e of amalgama tion or demerger,
(a) no deduction shall be admissible under this section to the amalgamating or the demerged Unit,
being the company for the previous year in which the amalgamation or the demerger takes place; and
(b) the provisions of this section shall, as they would have applied to the amalgamating or the
demerged Unit being the company as if the amalgamation or demerger had not taken place.
30
(6) Loss referred to in sub -section ( 1) of section 72 or sub -section ( 1) or sub -section ( 3) of section 74,
in so far as such loss relates to the business of the undertaking, being the Unit shall be allowed to be
carried forward or set off.
(7) For the purposes of sub -section ( 1), the profits derived from the export of articles or thi ngs or
services (including computer software) shall be the amount which bears to the profits of the business of
the undertaking, being the Unit, the same proportion as the export turnover in respect of such articles or
things or services bears to the total turnover of the business carried on by the assessee.
(8) The provisions of sub -sections ( 5) and ( 6) of section 10A shall apply to the articles or things or
services referred to in sub -section ( 1) as if
(a) for the figures, letters and word 1st April, 2001 , the figures, letters and word 1st April ,
2006 had been substituted;
(b) for the word undertaking , the words undertaking, being the Unit had been substituted.
(9) The provisions of sub -section ( 8) and sub -section ( 10) of section 80 -IA shall, so far as may be,
apply in relation to the undertaking referred to in this section as they apply for the purposes of the
undertaking referred to in section 80 -IA.
Explanation 1. For the purposes of this section,
(i) export turnover means the consideration in respect of export by the undertaking, being the
Unit of articles or things or services received in, or brought into, India by the assessee but does not
include freight, telecommunication charges or insurance attributable to the delivery of the articles or
things outside India or expenses, if any, incurred in foreign exchange in rendering of services
(including computer software) outside India;
(ii) export in relation to the Special Economic Zones means taking goods or providing services
out of India from a Special Economic Zone by land, sea, air, or by any other mode whether physical
or otherwise;
(iii) manufacture shall have the same meaning as assigned to it in clause ( r) of section 2 of the
Special Economic Zones Act, 2005;
(iv) relevant assessment year means any assessment year falling within a period of fifteen
consecutive assessment years referred to in this section;
(v) Special Economic Zone and Unit shall have the same meanings as assigned to them under
clause ( za) and ( zc) of section 2 of the Special Economic Zones Act, 2005.
Explanation 2 .For the removal of doubts, it is hereby declared that the profits and gains derived
from on site development of computer software (including services for development of software) outside
India shall be deemed to be the profits and gains derived from the export of computer software outside
India;
(d) after section 54G, the following sect ion shall be inserted, namely:
54GA. Exemption of capital gains on transfer of asset s in cases of shifting of industrial undertaking
from urban ar ea to any Special Economic Zone. (1) Notwithstanding anything contained in section
54G, where the capital gain arises from the transfer of a capital asset, being machinery or plant or
building or land or any rights in building or land used for the purposes of the business of an industrial
undertaking situate in an urban area, effected in the course of, or in consequence of the shifting of such
industrial undertaking to any Special Economic Zone, whether developed in any urban area or any other
area and the assessee has within a period of one year before or three years after the date on which the
transfer took place,
(a) purchased machinery or plant for the purposes of business of the industrial undertaking in the
Special Economic Zone to which the said undertaking is shifted;
(b) acquired building or land or constructed building for the purposes of his business in the
Special Economic Zone;
31
(c) shifted the original asset and transferred the estab lishment of such undertaking to the Special
Economic Zone; and
(d) incurred expenses on such other purposes as may be specified in a scheme framed by the
Central Government for the purposes of this section,
then, instead of the capital gain being charged to income -tax as income of the previous year in which the
transfer took place, it shall, subject to the provisions of sub -section ( 2), be dealt with in accordance with
the following provisions of this section, that is to say,
(i) if the amount of the capital gain is greater than the cost and expenses incurred in relation to all
or any of the purposes mentioned in clauses ( a) to ( d) (such cost and expenses being hereafter in this
section referred to as the new asset), the difference between the amount o f the capital gain and the
cost of the new asset shall be charged under section 45 as the income of the previous year; and for the
purpose of computing in respect of the new asset any capital gain arising from its transfer within a
period of three years of its being purchased, acquired, constructed or transferred, as the case may be,
the cost shall be Nil; or
(ii) if the amount of the capital gain is equal to, or less than, the cost of the new asset, the capital
gain shall n ot be charged under section 45, and for the purpose of computing in respect of the new
asset any capital gain arising from its transfer within a period of three years of its being purchased,
acquired, constructed or transferred, as the case may be, the cost shall be reduced by the amount of
the capital gain.
Explanation .In this sub -section,
(a) Special Economic Zone shall have the meaning assigned to it in clause ( za) of the Special
Economic Zones Act, 2005;
(b) urban area means any such area within the limits of a municipal corporation or municipality
as the Central Government may, having regard to the population, concentration of industries, need for
proper planning of the area and other relevant factors, by general or special order, declare to be an
urban ar ea for the purposes of this sub -section.
(2) The amount of capital gain which is not appropriated by the assessee towards the cost and
expenses incurred in relation to all or any of the purposes mentioned in clauses ( a) to ( d) of sub -section
(1) within one year before the date on which the transfer of the original asset took place, or which is not
utilised by him for all or any of the purposes aforesaid before the date of furnishing the return of income
under section 139, shall be deposited by him before fu rnishing such return [such deposit being made in
any case not later than the due date applicable in the case of the assessee for furnishing the return of
income under sub -section ( 1) of section 139] in an account in any such bank or institution as may be
specified in, and utilised in accordance with, any scheme which the Central Government may, by
notification, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for
the purposes of sub -section ( 1), the amount, if any, al ready utilised by the assessee for all or any of the
aforesaid purposes together with the amount so deposited shall be deemed to be the cost of the new asset:
Provided that if the amount deposited under this sub -section is not utilised wholly or partly for all or
any of the purposes mentioned in clauses ( a) to ( d) of sub -section ( 1) within the period specif ied in that
sub-section, then,
(i) the amount not so utilised shall be charged under section 45 as the income of the previous year
in which the period of three years from the date of the transfer of the original asset expires; and
(ii) the assessee shall be entitled to withdraw such amount in accordance with the sch eme
aforesaid. ;
(e) in section 80 -IA, after sub-section ( 12), the following sec tion shall be inserted, namely:
(13) nothing contained in this section shall apply to any Special Economic Zones notified on or
after the 1st day of April, 2005 in accordance with the scheme referred to in sub -clause ( iii) of clause
(c) of sub -section ( 4).
32
(f) after section 80 -IA, the following sec tion shall be inserted, namely:
80-I AB. Deductions in respect of profits and gains by an undertaking or enterprise engaged in
devel opment of Special Economic Zone. (1) Where the gross total income of an assessee, being a
Developer, includes any profits and gains derived by an undertaking or an enterprise from any
business of developing a Special Economic Zone, notified on or after the 1 st day of April, 2005 under
the Special Economic Zone Act, 2005, there shall, in accordance with and subject to the provisions of
this section, be allowed, in computing the total income of the assessee, a deduction of an amount
equal to one hund red per cent. of the profits and gains derived from such business for ten consecutive
assessment years.
(2) The deduction specified in sub -section ( 1) may, at the option of the assessee, be claimed by
him for any ten consecutive assessment years out of fif teen years beginning from the year in which a
Special Economic Zone has been notified by the Central Government:
Provided that where in computing the total income of any undertaking, being a Developer for any
assessment year, its profits and gains had not been included by application of the provisions of
sub-section ( 13) of section 80 -1A, the undertaking being the Developer shall be entitled to deduction
referred to in this section only for the unexpired period of ten consecutive assessment years and
there after it shall be eligible for deduction from income as provided in sub -section ( 1) or
sub-section ( 2), as the case may be:
Provided further that in a case where an undertaking, being a Developer who develops a Special
Econom |
case may be:
Provided further that in a case where an undertaking, being a Developer who develops a Special
Economic Zone on or after the 1st da y of April, 2005 and transfers the operation and maintenance of
such Special Economic Zone to another Developer (hereafter in this section referred to as the
transferee Developer), the deduction under sub -section ( 1) shall be allowed to such transferee
Developer for the remaining period in the ten consecutive assessment years as if the operation and
maintenance were not so transferred to the transferee Developer.
(3) The provisions of sub -sections ( 5) and sub -sections ( 7) to ( 12) of section 80 -IA shall appl y to
the Special Economic Zones for the purpose of allowing deductions under sub -section ( 1).
Explanation .For the purposes of this section, Developer and Special Economic Zone shall
have the same meanings respectively as assigned to them in clauses ( g) and ( za) of section 2 of the
Special Economic Zones Act, 2005 ;
(g) for section 80LA, the following sectio n shall be substituted, namely:
80LA. Deduction in respect of certain incomes of Offshore Banking Units and International
Financial Services Cen tre.(1) Where the gross total income of an assessee,
(i) being a scheduled bank, or, any bank incorporated by or under the laws of a country
outside India; and having an Offshore Banking Unit in a Special Economic Zone; or
(ii) being a Unit of an Internati onal Financial Services Centre,
includes any income referred to in sub -section ( 2), there shall be allowed, in accordance with and
subject to the provisions of this section, a deduction from such income, of an amount equal to
(a) one hundred per cent of such income for five consecutive assessment years beginning
with the assessment year relevant to the previous year in which the permission, under clause ( a)
of sub -section ( 1) of section 23 of the Banking Regulation Act, 1949 (10 of 1949) or permission
or registration under the Securities and Exchange Board of India Act, 1992 (15 of 1992) or any
other relevant law was obtained, and thereafter;
(b) fifty per cent. of such income for five consecutive assessment years.
(2) The income referred to in sub -section ( 1) shall be the in come
(a) from an Offshore Banking Unit in a Special Economic Zone; or
(b) from the business referred to in sub -section ( 1) of section 6 of the Banking Regulation
Act, 1949 (10 of 1949) with an undertaking loca ted in a Special Economic Zone or any other
33
undertaking which develops, develops and operates or develops, operates and maintains a Special
Economic Zone; or
(c) from any Unit of the International Financial Services Centre from its business for which it
has been approved for setting up in such a Centre in a Special Economic Zone.
(3) No deduction under this section shall be allowed unless the assessee furnishes along w ith the
return of income,
(i) the report, in the form specified by the Central Board of Direct Taxes under clause ( i) of
sub-section ( 2) of section 80LA, as it stood immediately before its substitution by this section, of
an accountant as defined in the Explanation below sub -section ( 2) of section 288, certifying that
the deduction has been correctly claimed in accordance with the provisions of this section; and
(ii) a copy of the permission obtained under clause ( a) of sub -section ( 1) of section 23 of th e
Banking Regulation Act, 1949 (10 of 1949) .
Explanation .For the purposes of this section,
(a) International Financial Services Centre shall have the same meaning as assigned to it in
clause ( q) of section 2 of the Special Economic Zones Act, 2005;
(b) scheduled bank shall have the same meaning as assigned to it in clause ( e) of section 2 of
the Reserve Bank of India Act, 1934 (2 of 1934);
(c) Special Economic Zone shall have the same meaning as assigned to it in clause ( za) of
section 2 of the Special Economic Zones Act, 2005;
(d) Unit shall have the same meaning as assigned t o it in clause ( zc) of section 2 of the Sp ecial
Economic Zones Act, 2005;
(h) in section 115JB, after sub -section ( 5), the following sub -section shall be inserted, namely :
(6) The provisions of this section shall not apply to the income accrued or arising on or after the
1st
day of April, 2005 from any business carried on, or services rendered, by an entrepreneur or a
Developer, in a Unit or Special Economic Zone, as the case may be. .
(i) in section 115 -0, after sub -section ( 5), the following sub -section shall be inserted, namely:
(6) Notwithstanding anything contained in this section, no tax on distributed profits shall be
chargeable in respect of the total income of an undertaking or enterprise engaged in developing or
developing and operating or developing, operating and maintaining a Special Economic Zone for any
assessment year on any amount declared, distributed or paid by such Developer or enterprise, by way
of dividends (whether interim or otherwise) on or after the 1 st
day of April, 2005 out of its current
income either in the hands of the Developer or enterprise or the person receiving such dividend not
falling under clause (23 G) of section 10. ;
(j) in section 197A, after sub -section ( 1C), the following sub -section shall be inserted, namely:
(1D) Notwithstanding anything contained in this section, no deduction of tax shall be made by the
Offshore Banking Unit from the interest paid
(a) on deposit made on or after the 1 st
day of April, 2005, by a non -resident or a person not
ordinarily resident in India; or
(b) on borrowings, on or after the 1 st
day of April, 2005, from a non -resident or a person not
ordinarily resident in India.
Explanation .For the purposes of this sub -section Offshore Banking Unit shall have the same
meaning as assigned to it in clause ( u) of section 2 of the Special Economic Zones Act, 2005..
34
THE THIRD SCHEDULE
(See section 57)
AMENDMENT TO CERTAIN ENACTMENTS
PART I
AMENDMENTS TO THE INSURANCE ACT, 1938
(4 OF 1938)
1. In section 2C, in sub -section ( 1), after the third proviso, insert:
Provided also an insurer, being an Indian Insurance Company, insurance co -operative society or
a body corporate ref erred to in clause ( c) of this sub -section carrying on the business of insurance,
may carry on any business of insurance in any Special Economic Zone as defined in clause ( za) of
section 2 of the Special Economic Zones Act, 2005. .
2. After section 2C, insert
2CA . Power of Central Gov ernment to apply provisions of this Act to Special Economic
Zones . The Central Government may, by notification, direct that any of the pr ovisions of this
Act,
(a) shall not apply to insurer, being an Indian Insurance Company, insurance co -operative
society or a body corporate referred to in clause ( c) of sub -section ( 1) of section 2C, carrying on
the business of insurance, in any Special Economic Zone as defined in clause ( za) of section 2 of
the Special Econ omic Zones Act, 2005; or
(b) shall apply to any insurer, being an Indian Insurance Company, insurance co -operative
society or a body corporate referred to in clause ( c) of sub -section ( 1) of section 2C, carrying on
the business of insurance, in any Special Economic Zone as defined in clause ( za) of section 2 of
the Special Economic Zones Act, 2005 only with such exceptions, modifications and adaptations
as may be specified in the notification. .
PART II
AMENDMENTS TO THE BANKING REGULATION ACT, 1949
(10 OF 1949)
1. Section 53 shall be renumbered as sub -section ( 1) thereof and in sub -section ( 1) as so re -numbered,
for banking company or institution or to any class of banking companies , substit ute,
banking company or institution or to any class of banking companies or any of their branches
functioning or located in any Special Economic Zone established under the Special Economic
Zones Act, 2005. .
2. After sub -section ( 1) as so numbered, the following sub -section shall be inserted, namely:
(2) A copy of every notification proposed to be issued under sub -section ( 1), shall be laid in
draft before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in on e session or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions aforesaid, both Houses agree
in disapproving the issue of the notification or both Houses agree in making any modification in the
notification, the notification shall not be issued or, as the case may be, shall be issued only in such
modified form as may be agreed upon by both the Houses. .
35
PART III
AMENDMENT TO THE INDIAN STAMP ACT, 1899
(2 OF1899)
In section 3, in the provis o, after clause ( 2), insert,
'(3) any instrument executed, by, or, on behalf of, or, in favour of, the Developer, or Unit or in
connection with the carrying out of purposes of the Spe cial Economic Zone.
Explanation .For the purposes of this clause, the expressions Developer , Special Economic
Zone and Unit shall have meanings respectively assigned to them in clause ( g), (za) and ( zc) of
section 2 of the Special Economic Zones Act, 2005.'.
|
THE BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY
ACT, 1994
ACT NO. 58 OF 1994
[30th September , 1994.]
An Act to establish and incorporate a teaching and residential University in the State of Uttar
Pradesh and to provide for matters connected therewith or incidental thereto.
BE it enac ted by Parliament in the Forty -fifth Year of the Republic of India as follows:
1. Short title and commencement .(1) This Act may be called the Babasaheb B himrao Ambedkar
University Act, 1994 .
(2) It shall come into force on such date1 as the Central Government may, by notification in the
Official Gazette, appoint.
2. Definition s.In this Act, and in all Statutes made hereunder, unless t he context otherwise
requires,
(a) Academic Council means the Academic Council of the University;
(b) academic staff means such categories of staff as are designated as academic st aff by the
Ordinances;
(c) Board of Management means the Board of Management of the University;
(d) Board of Studies means the Board of Studies of the University;
(e) Chancellor, Vice -Chancellor and Pro-Vice -Chancellor mean, respectively , the
Chancellor, Vice -Chancellor and Pro -Vice-Chancellor of the University;
(f) College means a College maintained by the University;
(g) Department means a Department of Studies; and includes a Centre of Studies;
(h) distance education system means the system of imparting education through any means of
communication, such as broadcasting, telec asting, correspondence courses, seminars, contact
programmes or the combination of any two or more such mean s;
(i) employee means any person appointed by the University; and includes teachers and other
staff of the University;
(j) Finance Committee means the Finance Committee of the University;
(k) Hall means a unit of residence or of corporate life for the students of the University, or of a
College or of an Institution, maintained by the University;
(l) Institution means an academic institution, not being a College, maintained by the University;
(m) Planning Board means the Planning Board of the University;
(n) Principal means the Head of a College or an Institution maintained by the University, and
includes, where there is no Principal, the person for the time being duly appointed to act as P rincipal,
and, in the absence of the Principal or the acting Princ ipal, a Vice -Principal duly appointed as such;
(o) recognised institution means an institution of higher learning recognised by the Univ ersity;
(p) recognised teachers means such persons as may be recognised by the University for the
purpose of imparting instructions in a College or an Institution maintained by the University;
1. 10th January 1996 , vide notification No. S.O. 18(E), dated 5 th January, 1996 , see Gazette of India, Extraordinary, Part II, s ec.
3(ii).
4
(q) Regulations means the Regulations made by any authority of the University under this Act
for the time being in force;
(r) School means a School of Studies of the University;
(s) Statutes and Ordinances mean , respectively, the Statutes and Ordinances of the University
for the time being in force;
(t) teachers of the University means Professors , Readers, Lecturers and such other persons as
may be appointed for imparting instruction or conducting research in the University or in any College
or Insti tution maintained by the University and are designated as teachers by the Ordinances;
(u) University means the Babasaheb Bhimrao Ambedkar University established under this Act.
3. The University .(1) There shall be establish ed a University by the name of Babasah eb Bhimrao
Ambedkar University.
(2) The headquarters of the University shall be at Lu cknow and it may also establish campuses at
such other places within its jurisdiction as it may deem fit.
(3) The first Vice -Chancellor and the first members of the Board of Management , or the Academic
Council or the Planning Board and all persons who may hereafter become such officers or members, so
long as they continue to hold such office or membership, are hereby constituted a body corporate by the
name of Babasa heb Bhimrao Ambedkar University .
(4) The University shall have perpetual succession and a common seal and shall sue and be sued by
the said name.
4. Objects of the Univer sity.The objects of the University shall be to promote advanced
knowledge by providing instructional and research facilities in such branches of learning as it may deem
fit, to make provisions for integrated courses in Science and key and frontier areas o f Technology and
other allied disciplines in the educational programmes of the University; to offer appropriate courses
relevant for the development of socially and economically depressed sections of the people, including
agricultural technology and rural crafts; to promote the study of the principles for which Babasaheb
Bhimrao Ambedkar worked during his life time , namely, national integration, social justice and
democratic way of life, and also study of the Constitutions of the world to take appropriate m easures for
promoting innovations in teachi ng-learning processes in inter -disciplinary studies and research and pay
special attention to the promotion of educational and economic interests and welfare of the people in
general and of members belonging to the Scheduled Castes and the Scheduled Tribes in particular by
providing adequate percentage of seats for the Scheduled Castes and the Scheduled Tribes and the
University shall, in organising its activities, have due regard to the objects specified in the First Schedule.
5. Powers of the U niversity .The University shall have the following powers, namely:
(i) to provide for instruction in such branches of learning as the University may, from time to
time, determine and to make provision for research and for the advancement and dissemination of
knowledge;
(ii) to grant, subject to such conditions as the University may determine, diplomas or certificates
to, and confer degrees or other academic distinctions on the basis of examinations, evaluation or any
other method of testing on, persons, and to withdraw any such diplomas, certificates, degrees or other
academic distinctions for good and sufficient cause;
(iii) to organise and to undertake extra -mural studies, training and extension services;
(iv) to confer honorary degrees or other distinctions in the manner prescribed by the Statutes;
(v) to provide facilities through the distance education system to suc h persons as it may
determine;
(vi) to institute Principalships, Professorships, Readerships, Lecturerships and other teaching or
academic positions, required by the University and to appoint persons to s uch Principalships,
Professorships, Readerships, Lecturerships or other teaching on academic positions;
5
(vii) to recognise an institution of higher learning for such purposes as the University may
determine and to withdraw such recognition;
(viii) to recognise persons for imparting instructions in any College or Institution maintained by
the University;
(ix) to appoint persons working in any other University or organisation as teacher of the
University for a specified period;
(x) to create administrative , ministerial and other posts and to make appointments thereto;
(xi) to co -operate or collaborate or associate with any other University or authority or institution
of higher learning in such manner and for such purposes as the University may determine;
(xii) to establish such campuses, special centres, specialised laboratories or other units for
research and instruction as are, in the opinion of the Un iversity, necessary for the furtherance of its
objects;
(xiii) to institute and award fellowships, scholarships, studentships, medals and prizes;
(xiv) to establish and maintain Colleges, Institutions and Halls;
(xv) to make provision for research and advisory services and for that purpose to enter into such
arrangements with other institutions, industr ial or other organisations, as the University may deem
necessary;
(xvi) to organise and conduct refresher courses, orientation courses, workshops, seminars and
other programmes for teachers, evaluators and other academic staff;
(xvii) to make special arrangements in respect of the residence discipline and teaching of women
students as the University may consider desirable;
(xviii) to appoint on contract or otherwise visiting Professors , Emeritus Professors, Consultants,
Scholars and such other persons who may contribute to the advancement of the objects of the
University;
(xix) to confer autonomous status on a College or an Institution or a Department, as the case may
be, in accordance with the Statutes;
(xx) to determine standards of admission to the University which may inclu de examination,
evaluation or any other method of testing;
(xxi) to fix quota for students belonging to the Scheduled Castes and the Scheduled Tribes for
admission purposes;
(xxii) to demand and receive payment of fees and other charges;
(xxiii) to supervise the residences of the students of the University and to make arrangements for
promoting their he alth and general welfare;
(xxiv) to lay down conditions of service of all categories of employees, including their code of
conduct;
(xxv) to regulate and enforce discipline among the students and the employees, and to take such
disciplinary measures in this regard as may be deemed by the University to be necessary;
(xxvi) to make arrangem ents for promoting the health and general welfare of the employees;
(xxvii ) to receive benefactions, donations and gifts and to acquire, hold, mange and dispose of any
property, movable or immovable includ ing trust and endowment properties for the purposes of the
University;
(xxviii ) to borrow, with the prior approval of the Central Government, on the security of the
property of the University, money for t he purposes of the University;
6
(xxix) to do all such other acts and things as may be necessary, incidental or conducive to the
attainment of all or any of its objects.
6. Jurisdiction .The jurisdiction of the University shall extend to the whole of the State of Uttar
Pradesh.
7. University open to all classes, castes and creed .The University shall be open to all persons of
either sex and of whatever caste, creed, race, class, place of domicile and it shall not be lawful for the
University to adopt or impose on any person, any test whatsoever of religious belief or profession in order
to entitle him to be appointed as a teacher of the University or to hold any other office therein or be
admitted as a st udent in the University or to graduate thereat or to enjoy or exercise any privilege thereof:
Provided that nothing in this section shall be deemed to prevent the University from making special
provisions for the employment or promotion of educational int erests of women, physically handicapped
or of persons belonging to the weaker sections of the society and, in particular, of the Scheduled Castes
and the Scheduled Tribes.
8. Residence of students .Every student of the University (other than a student who pursues a
course of study by distance education system) shall normally reside in a Hall or hostel or under such
conditions as may be prescribed by the Ordinances.
9. The Visi tor.(1) The President of India shall be the Visitor of the University.
(2) The Visitor may, from time to time, appoint one or more persons to review the work and progress
of the University, including Colleges and Institutions managed by it, and to submit a report thereon; and
upon receipt of that report, the Visitor may, after o btaining the views of the Board of Manag ement
thereon through the Vice -Chancellor, take such action and issue such directions as he considers necessary
in respect of any of the matters dealt with in the report and the University shall be bound to comply wi th
such directions.
(3) The Visitor shall have the right to cause an inspection to be made by such person or persons as he
may direct of the University, its buildings, laboratories and equipment, and of any College or Institution
maintained by the Universi ty and also of the examinations, teaching and other work conducted or done by
the University and to cause an inquiry to be made in like manner in respect of any matter connected with
the administration or finances of the University, Colleges or Institution s.
(4) The Visitor shall, in e very matter referred to in sub -section ( 2), give notice of his intention to
cause an inspection or inquiry to be made to the University and the University shall have the rig ht to
make such representations to the Visitor, as it may consider necessary.
(5) After considering the representations, if any, made by the University, the Visitor may cause to be
made such inspection or inquiry as is referre d to in sub -section ( 3).
(6) Where any inspection or inquiry has been caused to be made by the Visitor, the University shall
be entitled to appoint a representative, who shall have the right to be present and be heard at such
inspection or inquiry.
(7) The Visitor may, if the inspection or inquiry is made in respect of the University or any College or
Institution main tained by it, address the Vice -Chancellor with reference to the result of such inspection or
inquiry together with suc h views and advice with regard to the action to be taken thereon, as the Visitor
may be pleased to offer, and on receipt of address made by the Visitor, the Vice -Chancellor shall
communicate to the Board of Management the views of the Visitor with such adv ice as the Visitor may
offer upon the action to be taken thereon.
(8) The Board of Management shall communicate, through the Vice -Chancellor, to the Visitor such
action, if any, as it proposes to take or has been taken upon the result of such inspection or inquiry.
(9) Where, the Board of Management does not, within a reasonable time, take action to the
satisfaction of the Visitor, the Visitor may, after considering any explanation furnished or representation
made by the Board of Management, issue such directions as he may think fit and the Board of
Management shall comply with such directions.
7
(10) Witho ut prejudice to the foregoing provisions of this section, the Visitor may, by order in
writing, annul any proceeding of the University which is not in conformity with the Act, the Statutes or
the Ordinances:
Provided that before making any such order, he s hall call upon the Registrar to show cause why such
an order should not be made, and, if any cause is shown within a reasonable time, he shall consider the
same.
(11) The Visitor shall have such other powe rs as may be prescribed by the Statues.
10. Officers of the University .The following shall be the officers of the Univ ersity:
(1) the Chancellor;
(2) the Vice -Chancellor;
(3) the Pro -Vice -Chancellors;
(4) the Deans of Schools;
(5) the Registrar;
(6) the Finance Officer; and
(7) such other officers as may be declared by the Statutes to be officers of the University.
11. The Chancellor .(1) The Chancellor shall be appointed by the Visitor in such manner as may be
prescribed by the Statutes.
(2) The Chancellor shall, by virtue of his office, be the head of the University.
(3) The Chancellor shall, if present, |
Chancellor shall, by virtue of his office, be the head of the University.
(3) The Chancellor shall, if present, preside at the convocation of the University held for confe rring
degrees, and may be delegated such powers as may be necessary.
12. The Vice -Chancellor .(1) The Vice -Chancellor shall be appointed by the Visitor in such
manner as may be prescribed by the Statutes.
(2) The Vice -Chancellor shall be the principal executive and academic head of the University and
shall exercise general supervision and control over the affairs of the University and give effect to the
decisions of all the authorities of the University.
(3) The Vice -Chancellor may, if he is of opinion that immediate action is necessary on any matter,
exercise any power conferred on any authority of the University by or under this Act and shall report to
such authority the action taken by h im on such matter:
Provided that if the authority concerned is of opinion that such action ought not to have been taken, it
may refer the matter to the Visitor whose d ecision thereon shall be final:
Provided further that any person in the service of the University who is aggrieved by the action taken
by the V ice-Chancellor under this sub -section shall have the right t o appeal against such action to the
Board of Management within three months from the date on which decision on such action is
communicated to him and thereupon the Board of Management may confirm, modify or revers e the action
taken by the Vice -Chancellor.
(4) The Vice -Chancellor, if he is of the opinion that any decision of any authority of the University is
beyond the powers of the authority conferred by the provisions of this Act, the Statutes or the Or dinances
or that any decision taken is not in the interest of the University, may ask the authority concerned to
review its decision within sixty days of such decision and if the authority refuses to review the decision
either in whole or in part or no dec ision is taken by it within the said period of sixty days, the matter shall
be referred to the Visitor whose decision thereon shall be final.
(5) The Vice -Chancellor shall exercise such other powers and perform such other duties as may be
prescribed by the Statutes or the Ordinances.
13. The Pro -Vice-Chancellor s.One or more Pro -Vice -Chancellors shall be appointed in such
manner and shall exercise such powers and perform such duties as may be prescribed by the Statutes.
8
14. Deans of Sc hools .Every Dean of a School shall be appointed in such manner and shall exercise
such powers and perform such duties as may be prescribed by the Statutes.
15. The Registrar .(1) The Registrar shall be appointed in such manner as may be prescribed by the
Statutes.
(2) The Registrar shall have the power to enter into agreement, sign documents and authenticate
records on behalf of the University and shall exercise such powers and perform such duties as may be
prescrib ed by the Statutes.
16. The Finance Officer .The Finance Officer shall be appointed in such manner and shall exercise
such powers and perform such duties as may be prescribed by the Statutes.
17. Other officers .The manner of appointment and powers and duties of the other officers of the
University shall be prescribed by the Statutes.
18. Authorities of the University .The following shall be the authorit ies of the University,
namely:
(1) the Board of Management;
(2) the Academic Council;
(3) the Planning Board;
(4) the Boards of Studies;
(5) the Finance Committee; and
(6) such other authorities as may be declared by the Statutes to be the authorities of the
University.
19. The Board s of Man agement .(1) The Board of Management shall be the principal executive
body of the University.
(2) The constitution of the Board of Management, the term of office of its members and its powers
and functions shall be prescribed by the Statutes:
Provided that the Board of Management shall also have representatives of the House of the People
and the Counc il of States, the Government of India, the University Grants Commission and the teaching
community.
20. The Academic Council .(1) The Academic Council shall be the principal academic body of the
University and shall, subject to the provisions of this Act, the S tatutes and the Ordinances, co -ordinate
and exercise general supervision over the academic policies of the University.
(2) The constitution of the Academic Council, the term of office of its members and its powers and
functions shall be prescribed by the Statutes:
Provided that representation shall be given to students also.
21. The Planning Board .(1) The Planning Board s hall be the principal planning b ody of the
University.
(2) The constitution of the Planning Board, term of office of its members and its powers and functions
shall be prescribed by the Statutes:
Provided that repres entation shall be given to non -teaching staff .
22. The Board s of Schools .The constitution, powers and functions of the Boards of Schools shall
be prescribed by the Statutes.
23. The Finance Committee .The constitution, powers and functions of the Finance Committee
shall be prescribed by the Statutes.
9
24. Other authorities of the University .The constitution, powers and functions of other
authorities, as may be declared by the Statutes to be the authorities of the University, shall be prescribed
by the Statutes.
25. Power to make Statutes .Subject to the provisions of this Act, the Statutes may provide for all
or any of the following matters, namely:
(a) the constitution, powers and functions of the authorities and other bodies of the Uni versity, as
may be constituted from time to time;
(b) the election and continuance in office of the members of the said authorities and bodies, the
filling up of vacancies of members, and all other matter s relating to those authorities and other bodies
for which it may be necessary or desirable to provide;
(c) the appointment, powers and duties of the officers of the University and their emoluments;
(d) the appointment of teachers, academic staff and other employees of the University, their
emoluments and other conditions of service;
(e) the appointment of teachers, academic staff working in any other University or organisation
for a specific period for undertaking a joint project;
(f) the conditions of service of employees including provision for pens ion, insurance and
provident fund, the manner of termination of service and disciplinary action;
(g) the principles governing the seniority of service of the employees or students and the
University;
(h) the procedure for arbitration in cases of dispute between employees or students and the
University;
(i) the procedure for appeal to the Board of Manag ement by any employee or student against the
action of any officer or authority of the University;
(j) the conferment of autonomous status on a College or an Institution or a Department;
(k) the establishment and abolition of Schools, Departments, Centres, Halls, Colleges and
Institutions;
(l) the conferment of honorary degrees;
(m) the withdrawal of degrees, diplomas, certificates and other academic distinctions;
(n) the institution of fellowships, scholarships, studentships, me dals and prizes;
(o) the delegation of powers vested in the authorities or officers of the University;
(p) the maintenance of the discipline among the employees and students;
(q) all other matters which by this Act are to be or may be provided for by the Statutes.
26. Statutes how to be made .(1) The first Statutes are those set out in the Second Schedule.
(2) The Board of Management may, from time to time, make new or additional Statutes or ma y
amend or repeal t he Statutes referred to in sub -section ( 1):
Provided that the Board of Management shall not make, amend or repeal any Statutes affecting the
status, powers or constitution of any authority of the University until such authority has been given an
opportunity of expressing an opinion in writing on the proposed changes, and any opinion so expressed
shall be considered by the Board of Management.
(3) Every new Statutes or addition to the Stat utes or any amendment or repeal of a Statute shall
require the assent of the Visitor who may assent thereto or withhold assent or remit to the Board of
Management for reconsideration.
(4) A new Statute o r a Statute amending or repealing an existing Statute shall have no validity unless
it has been assented to by the Visitor.
10
(5) Notwithstanding anything contained in the foregoing sub -sections, the Visitor, in exceptional
circumstances, may direct the University to make provisions in the Statutes in respect of any matter
specified by him and if the Board of Management is unable to implement such direction within sixty days
of its receipt, the Visitor may, after considering the reasons, if any , communicated by the Board of
Management for its in ability to comply with such direction, make or amend the Statutes suitably.
27. Power to make Ordinances .(1) Subject to the provisions of this Act and the Statutes, the
Ordinances may provide for all or any o f the following matters namely:
(a) the admission of students to the University and their enrolment as such;
(b) the courses of study to be laid down for all degrees, diplomas and certificates of the
University;
(c) the medium of instruction and examination;
(d) the award of degrees, diplomas, certificates and other academic distinctions, the qualifications
for the same and the means to be taken relating to the granting and obtaining of the same;
(e) the fees to be charged for courses of study in the University and for admission to the
examinations, degrees and di plomas of the University;
(f) the conditions for award of fellowships, scholarships, studentships, medals and prizes;
(g) the conduct of examinations, i ncluding the term of office and manner of appointment and the
duties of examining bodies, examiners and moderators;
(h) the conditions of residence of the students of the University;
(i) the special arrangements, if any, which may be made for the residence, discipline and teaching
of women students and the prescribing of special courses of studies for them;
(j) the appointments and emoluments of employees other than those for whom provision has been
made in the Statutes;
(k) the estab lishment of Centres of Studies, Boards of Studies, Special Centres, Specialised
Laboratories and other Committees;
(l) the manner of co -operation and collaboration with other Universities and authorities including
learned bodies or associations;
(m) the creation, composition and functions of any other body which is considered necessary for
improving the academic life of the University;
(n) such other terms and conditio ns of service of teachers and other academic staff as are not
prescribed by the Statutes;
(o) the management of Colleges and Institutions established by the University;
(p) the setting up of a machinery for redressal of grievances of employees; and
(q) all other matters which by this Act or the Statutes may be provided for by the Ordinances.
(2) The first Ordina nces shall be made by the Vice -Chancellor with the previous approval of the
Central Government and the Ordinances so made may be amended, repealed or added to at any time by
the Board of Managem ent in the manner prescribed by the Statutes.
28. Regulations .The authorities of the University may make Regulations, consistent with this Act,
the Statutes and the Ordinances for the conduct of their own business and that of the Committees, if any,
appointed by them and not provided for by this Act, the Statutes or the Ordinances, in the manner
prescribed by the Statutes.
29. Annual report .(1) The annual report of the University shall be prepared under the direction of
the Board of Management, which shall include, among other matters, the steps taken by the University
towards the fulfilment of its o bjects.
11
(2) The annual report so prepared shall be submitted to the Visitor on or before such date as may be
prescribed by the Statutes.
(3) A copy of the annua l report as prepared under sub -section ( 1), shall also be submitted to the
Central Government, which shall, as soon as may be, cause the same to be laid before both Houses of
Parliament.
30. Annual accounts .(1) The annual accounts and balance -sheet of the University shall be
prepared under the directions of the Board of Management and s hall, once at least every year and at
intervals of not more than fifteen months, be audited by the Comptroller and Auditor -General of India or
by such persons as he may authorise in this behalf.
(2) A copy of the annual accounts together with the audit report thereon shall be submitted to the
Visitor.
(3) Any observations made by the Visitor on the annual accounts shall be brought to the notice of t he
Board of Management and the observations of the Board of Management, if any, shall be submitted to the
Visitor.
(4) A copy of the annual accounts together with the audit report as submitted to the Vis itor, shall also
be submitted to the Central Government, which shall, as soon as may be, cause the same to be laid before
both Houses of Parliament.
(5) The audited annual accounts after having been laid before both Houses of Parliament shall be
published in the Gazette of India.
31. Conditions of service of employees .(1) Every employee of the University shall be appointed
under a written contract, which shall be lodged with the University and a copy of which shall be furnished
to the employee concerned.
(2) Any dispute arising out of the contract between the University and any employee shall, at the
request of the employee, be referred to a Tribunal of Arbitration consisting of one member appointed by
the Board of Management, one member nominated by the employee concerne d and an umpire appointed
by the Visitor.
(3) The decision of the Tribunal in such matters shall be final.
(4) Every request made by the employee unde r sub -section ( 2), shall be deemed to be a submission to
arbitration upon the terms of this section within the meaning of the A rbitration Act, 1940 (2 of 1940 ).
(5) The procedure for regulating the work of the Tribunal shall be prescribed by the Statutes.
32. Procedure of appeal and arbitration in disc iplinary cases against students .(1) Any student
or candidate for an examination whose name has been removed from the rolls of the University by the
orders or resolution of the Vice -Chancellor, Discipline Committee or Examination Committe e, as the case
may be, and who has been debarred from appearing at the examinations of the University for more than
one year, may, within ten days of the date of receipt of such orders or copy of such resolution by him,
appeal to the Board of Management an d the Board of Management may confirm , modify or re verse the
decision of the Vice -Chancellor or the Committee, as the case may be.
(2) Any dispute arising out of any disciplinary action taken by the University against a student shall,
at the request of such student, be referred to a Tribunal of Arbitra tion and the provisions of sub -sections
(2), (3), (4) and ( 5) of section 31 shall, as f ar as may be, apply to a reference made under this sub -section.
33. Right to appeal .Every employee or student of the University or of a College or Institution
maintained by the University shall, not |
33. Right to appeal .Every employee or student of the University or of a College or Institution
maintained by the University shall, notwiths tanding anything contained in this Act, have a right to appeal
within such time as may be prescribed by the Statutes, to the Board of Management against the decision
of any officer or authority of the University or of the Principal of any College or Instit ution, as the case
may be, and thereupon the Board of Management may confirm, modify or reverse the decision appealed
against.
12
34. Provident and pension funds .(1) The University shall constitute for the benefit of its
employees such provident or pension fund or provide such insurance schemes as it may deem fit in such
manner and subject to such conditions as may be presc ribed by the Statutes.
(2) Where such provident fund or pension fund has been so constituted, the Central Government may
declare that the provision of the Provid ent Funds Act, 1925 (19 of 1925 ), shall apply to such fund, as if it
were a Government provident fund.
35. Disputes as to constitution of Uni versity authorities and bodies .If any question arises as to
whether any person has been duly elected or appointed as, or is entitled to be, a member of any authority
or other body of the University, the matter shall be referred to the Visitor whose decision thereon shall be
final.
36. Constituti on of Committees .Where any authority of the University is given power by this Act
or the Statutes to appoint Committees, such Committees shall, save as otherwise provided, consist of the
members of the authority concerned and of such other person, if any, as the authority in each case may
think fit.
37. Filling of casual vacancies .All casual vacancies among the members (other than ex officio
members) of any authority or other body of the University shall be filled, as soon as may be, by the
person or bod y who appointed, elected or co -opted the member whose place has become vacant and the
person appointed, elected or co -opted to a casual vacan cy shall be a member of such authority or body for
the residue of the term for which the person whose place he fills would have been a member.
38. Proceedings of University authorities or bodies not invalid ated by vacancies .No act or
proceedings of any authority or other body of the University shall be invalid merely by reason of the
existence of a vacancy or vacancies among its members.
39. Protection of action taken in good faith .No suit or other legal proceedings shall lie against
any officer or other employee of the University for anything which is in good faith done or intended to be
done in pursuance of any of the provisions of this Act, the Statutes or the Ordinances.
40. Mode of proof of University record .A copy of any receipt application, notice , order ,
proceeding , resolution of any authority or Committee of the University, or other documents in possession
of the University, or any entry in any register duly maintained by the University, if certified by the
Registrar, shall be received as prima facie evidence of suc h receipt, application, notice, order, proceeding,
resolution or documents or the existence of entry in the register and shall be admitted as evidence of the
matters and transactions therein where the original thereof would, if produced, have been admissib le in
evidence, notwithstanding anything contained in the India n Evidence Act, 1872 (1 of 1872 ), or in any
other law for the time being in force.
41. Power to remove difficulties .(1) If any difficulty arises in giving effect to the provisions of
this Act, the Central Government may, by order published in the Official Gazette, make such provisions,
not inconsistent with the provisions of this Act, as appear to it to be necessary of exp edient for removing
the difficulty:
Provided that no such order shall be made under this section after the expiry of three years from the
commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each
House of Parliament.
42. Transitional provisions .Notwithstanding anything containe d in this Act and the Statutes,
(a) the first Vice -Chancellor shall be appointed by the Visitor and the said officer shall hold
office for a term of five years;
(b) the first Registrar and the first Finance Officer shall be appointed by the Visitor and each of
the said officers shall hold office for a term of three years;
(c) the first Board of Management shall consist of not more than eleven members who shall be
nominated by the Visitor and they shall hold office for a term of three years;
13
(d) the first Academic Council and the first Planning Board shall be nominated by the Visitor for
a term of three years:
Provided that if any vacancy occurs in the above offices or authorities, the same shall be filled by
appointment or nomination, as the ca se may be, by the Visitor, and the persons so appointed or
nominated shall hold office for so long as the officer or member in whose place he is appointed or
nominated would have held that office, if such vacancy had not occurred.
43. Statutes, Ordinances and Regulations to be published in the Official Gazette a nd to be laid
before Parliament .(1) Every Statute, Ordinance or Regulation made under this Act shall be published
in the Official Gazette.
(2) Every Statute, Ordinance or Regulation made under this Act shall be laid, as soon as may be afte r
it is made, before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the Statute, Ordinance or Regulation or both Houses agree that the Statute,
Ordinance or Regulation should not be made, the Statute, Ordinance or Regulation shall therea fter have
effect only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under
that Statute, Ordinance or Regulation.
(3) The power to make Statutes, Ordinances or Regulations shall include the power to give
retrospective effect from a date not earlier than the date of commencement of this Act, to the Statutes,
Ordinances o r Regulations or any of them but no retrospective effect shall be given to any Statute,
Ordinance or Regulation so as to prejudicially affect the interests of any person to whom such Statute,
Ordinance or Regulation may be applicable.
14
THE FIRST SCHEDULE
(See section 4)
THE OBJECTS OF THE UNIVERSITY
The University shall endeavour to promote advanced knowledge by providing instructional and
research facilities in Science and key and frontier areas of Technology and other allied disciplines and to
offer appro priate courses relevant for the development of socially and economically depressed sections of
the people, including agricultural technology and rural crafts; to promote the study of the principles for
which Babasaheb Bhimrao Ambedkar worked during his lif etime, namely, national integration, social
justice and democratic way of life, and also study of the constitutions of the world. It would take
appropriate measures for promoting innovations in teaching -learning processes in inter -disciplinary
studies and research and pay special attention to the promotion of educational and economic interests and
welfare of the people in general and of members belonging to Scheduled Castes and Scheduled Tribes in
particular by providing adequate percentage of seats for Sch eduled Castes and Scheduled Tribes. The
University shall, in organising its activities, have due regard to the objects specified in the First Schedule.
15
THE SECOND SCHEDULE
(See section 27)
THE STATUTES OF THE UNIVERSITY
The Chancellor
1. (1) The Chancellor shall be appointed by the Visitor of the Babasaheb Bhimrao Ambedkar
University recommended by the Board of Management from amongst persons of eminence in the
academic or public life of the country:
Provided that if the Visitor does not approve of any of the persons so recommended, he may call for
fresh recommendations from the Board o f Management.
(2) The Chancellor shall hold office for a term of five years and shall be eligible for re -appointment.
The Vice -Chancellor
2. (1) The Vice -Chancellor shall be appointed by the Visitor from a panel of not less than three
persons who shall be recommended by a Committee a s constituted under clause ( 2):
Provided that if the Visitor does not approve of any of the persons included in the panel, he m ay call
for a fresh panel.
(2) The Committee referred to in clause ( 1), shall consist of three persons, none of whom shall be an
employee of the University or a member of the Board of Management, Academic Council, member of any
authority of the University or connected with an institution associated with the University and out of the
three persons, two shall be nominated by the Board of Management and one by the Visitor and the
nominee of the Visitor shall be the convenor of the Committee.
(3) The Vice -Chanc ellor shall be a whole -time sala ried officer of the University.
(4) The Vice -Chancellor shall hold office for a term of five years from the date on which he enters
upon his office, or until he attains the age of sixty -five years, whichever is earlier, and he shall not be
eligible for re -appointment:
Provided that notwithstanding the expiry of the said period of five years, he shall continue in office
until his successor is appoin ted and enters upon his office:
Provided further that the Visitor may direct an y Vice -Chancellor after his term has expired, to
continue in office for such period, not exceeding a total period of one year, as may be specified by him.
(5) The emoluments and other con ditions of service of the Vice -Chancellor shall be as follows:
(i) The Vice -Chancellor shall be paid a monthly salary and allowances other than the house rent
allowance, at the rates fixed by the Central Government from time to time and he shall be entitled,
without payment of rent, to use a furnished residence througho ut his term of office and no charge
shall fall on the Vice -Chancellor in respect of the maintenance of such residence.
(ii) The Vice -Chancellor shall be entitled to such terminal benefits and allowances as may be
fixed by the Board of Management with the a pproval of the Visitor from time to time:
Provided that where an employee of the University or a College or an Institution maintained by it,
or of any other University or any Institution maintained by or affiliated to such other University, is
appointed as the Vice -Chancellor, he may be allowed to continue to contribute to any provident fund
of which he is a member and the University shall contribute to the account of such person in that
provident fund at the same rate at which the person had been contribut ing immediately before his
appoi ntment as the Vice -Chancellor:
Provided further that where such employee had been a member of any pension scheme, the
University shall make the necessa ry contribution to such scheme.
(iii) The Vice -Chancellor shall be entitl ed to travelling allowance at such rates as may be fi xed by
the Board of Management.
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(iv) The Vice -Chancellor shall be entitled to leave on full pay at the rate of thirty days in a
calendar year and the leave shall be credited to his account in advance in two half -yearly instalments
of fifteen days each on the 1st day of January and 1st day of July eve ry year:
Provided that if the Vice -Chancellor assumes or relinquishes charge of the office of the
Vice -Chancellor during the currency of a half year, the le ave shall be credited proportionately at the
rate of two and -a-half days for each completed month of service.
(v) In addition to the leave referred to in sub -clause (iv), the Vice -Chancellor shall also be entitled
to half pay leave at the rate of twenty da ys for each completed year of service. This half pay leave
may also be availed of as commuted leave on full pay on medical certificate. When commuted leave
is availed, twice the amount of half pay leave shall be debi ted against half pay leave due.
(6) If the office of the Vice -Chancellor becomes vacant due to death, resignation or otherwise or if he
is unable to perform his duties due to ill health or any ot her cause, one of the Pro -Vice -Chancellors shall
perform the duties of the Vice -Chancellor:
Provided that if no Pro -Vice -Chancellor is available, the senior -most Professor shall perform the
duties of the Vice -Chancellor until a new Vice -Chancellor assumes office or until the existing
Vice -Chancellor attends to the duties of his office, as the case may be .
Powers and duties of the Vice -Chancellor
3. (1) The Vice -Chancellor shall be ex officio Chairman of the Board of Management, the Academic
Council, the Planning Board and the Finance Committee and shall, in the absence of the Chancellor,
preside at the c onvocations held for conferring degrees.
(2) The Vice -Chancellor shall be entitled to be present at, and address, any meeting of any authority
or other body of the University, but shall not be entitled to vote thereat unless he is a me mber of such
authorit y or body.
(3) It shall be the duty of the Vice -Chancellor to see that this Act, the Statutes, the Ordinances and the
Regulations are duly observed, and he shall have all the powers neces sary to ensure such observance.
(4) The Vice -Chancellor shall exercis e control over the affairs of the University and shall give effect
to the decisions of all the aut horities of the University.
(5) The Vice -Chancellor shall have all the powers necessary for the proper maintenance of discipline
in the University and he may delegate any such powers to such person or persons as he may deem fit.
(6) The Vice -Chancellor shall have the power to convene or cause to be convened the meeting of the
Board of Management, the Academic Council, the Planning B oard and the Finance Committe e.
Pro-Vice-Chancellor
4. (1) Every Pro -Vice -Chancellor shall be appointed by the Board of Management on the
recommendation of the Vice -Chancellor:
Provided that where the recommendation of the Vice -Chancellor is not accepted by the Board of
Management, the matter shall be referred to the Visitor who may either appoint the person recommended
by the Vice -Chancellor or ask the Vice -Chancellor to recommend another per son to the Board of
Management:
Provided further that the Board of Management may, on the re commendation of the
Vice -Chancellor, appoint a Professor to discharge the duties of a Pro -Vice -Chancellor in addition to his
own duties as a Professor.
(2) The term of office of a Pro -Vice -Chancellor shall be such as may be decided by the Board of
Management but it shall not in any case exceed five years or until the expiration of the term of office of
the Vice -Chancell |
Management but it shall not in any case exceed five years or until the expiration of the term of office of
the Vice -Chancellor, whichever is earlier:
Provided that a Pro -Vice -Chancellor whose term of office has expired shall be eligible for
reappointment:
17
Provided further that, in any case, a Pro -Vice -Chancellor shall retire on attaining the age of sixty -five
years:
Provided also that the Pro -Vice -Chancellor shall, whil e discharging the duties of the Vice -Chancellor
under clause ( 6) of Statute 2, continue i n office notwithstanding the expiration of his term of office as
Pro-Vice -Chancellor, until a new Vice -Chancellor or the existing Vice -Chancellor, as t he case may be,
assumes office:
Provided also that when the office of the Vice -Chancellor becomes vacant and there is no
Pro-Vice -Chancellor to perform the functions of the Vice -Chancellor, the Board of Man agement may
appoint a Pro -Vice -Chancellor and the Pro -Vice -Chancellor so appointed shall cease to hold office as
such as soon as a Vice -Chancellor is appo inted and en ters upon his office.
(3) The emoluments and other terms and conditions of service of a Pro -Vice -Chancellor shall be such
as may b e prescribed by the Ordinances.
(4) A Pro -Vice -Chancellor shall assist the Vice -Chancellor in respect of such matt ers as may be
specified by the Vice -Chancellor in this behalf, from time to time, and shall also exercise such powers
and perform such duties as may be assigned or delegated to him by the Vice -Chancellor.
Registrar
5. (1) The Registrar shall be appointed by the Board of Management on the recommendation of a
Selection Committee constituted for the purpose and shall be a whole -time sala ried officer of the
University.
(2) He shall be appointed for a term of five years and shall be eligible for reappointment.
(3) The emoluments and other terms and conditions of service of the Registrar shall be such as may
be prescribed by the Ordinances:
Provided that the Registrar shall retire on at taining the age of sixty years:
Provided further that a Registrar shall, notwithstanding his attaining the age of sixty years, continue in
office until his successor is appointed and enters upon his office or until the expiry of a period of one
year, whichever is earlier.
(4) When the of fice of the Registrar is vacant or when the Registrar is, by reason of illness, absence or
any other cause unable to perform the duties of his office, the duties of the office shall be performed by
such person as the Vice -Chancell or may appoint for the pur pose.
(5) (a) The Registrar shall have power to take disciplinary action against such of the employees,
excluding teachers and academic staff, as may be specified in the order of the Board of Management and
to suspend them pending inquiry, to administer wa rnings to them or to impose on them the penalty of
censure o r the withholding of increment:
Provided that no such penalty shall be imposed unless the person concerned has been given a
reasonable opportunity of showing cause against the action propose d to b e taken in regard to him.
(b) An appeal shall lie to the Vice -Chancellor against any order of the Registrar imposing any of the
penalties specified in s ub-clause ( a).
(c) In a case where the inquiry discloses that a punishment beyond the power of the Regis trar is called
for, the Registrar shall, upon conclusion of the inquiry, make a report to the Vice -Chancellor along with
his recommendations:
Provided that an appeal shall lie to the Board of Management against an order of the Vice -Chancellor
imposing any penalty.
(6) The Registrar shall be ex officio Secretary of the Board of Management, the Academic Council
and the Planning Board, but shall not be deemed to be a memb er of any of these authorities.
18
(7) It shall be the duty of the Registrar
(a) to be the custodian of the records, the common seal and such other property of the University
as the Board of Manageme nt shall commit to his charges;
(b) to issue all notices convening meetings of the Board of Management, the Academic Council,
the Planning Board an d of any , Committees appointed by those authorities;
(c) to keep the minutes of all the meetings of the Board of Management, the Academic Council,
the Planning Board and of any Committees appointed by those authorities;
(d) to conduct the official correspo ndence of the Board of Management, the Academic C ouncil,
and the Planning Board;
(e) to arrange for and superintend the examinations of the University in accordance with the
manne r prescribed by the Ordinances;
(f) to supply to the Visitor copies of the ag enda of the meetings of the authorities of the
University as soon as they are issued an d the minutes of such meetings;
(g) to represent the University in suits or proceedings by or against the University, sign
powers -of-attorney and verify pleadings or de pute his repr esentative for the purpose; and
(h) to perform such other duties as may be specified in the Statutes, the Ordinances or the
Regulations or as may be required, from time to time, by the Board of Management or the
Vice -Chancellor.
The Finance Officer
6. (1) The Finance Officer shall be appointed by the Board of Management on the recommendations
of a Selection Committee constituted for the purpose and he shall be a whole -time sala ried officer of the
University.
(2) He shall be appointed for a term of five years and shall be eligible for reappointment.
(3) The emoluments and other terms and conditions of service of the Finance Officer shall be such as
may b e prescribed by the Ordinances:
Provided that a Finance Officer shall reti re on at taining the age of sixty years:
Provided further that the Finance Officer shall, notwithstanding his attaining the age of sixty years,
continue in office until his successor is appointed and enters upon his office or until the expiry of a period
of one year, whichever is earlier.
(4) When the office of the Finance Officer is vacant or when the Finance Officer is, by reason of
illness, absence or any other cause, unable to perform the duties of his office, the duties of the office shall
be performed by such person as the Vice -Chancell or may appoint for the purpose.
(5) The Finance Officer shall be ex officio Secretary of the Finance Committee, but shall not be
deemed to be a member of such Committee.
(6) The Finance Officer shall
(a) exercise general supervision over the funds of the University and shall advise it as re gards its
financial policy; and
(b) perform such other financial functions as may be assigned to him by the Board of
Management or as may be prescribed by the Statutes or the Ordinances .
(7) Subject to the control of the Board of Manageme nt, the Finance Officer shall
(a) hold and manage the property and investments of the University including trust and endowed
property;
19
(b) ensure that the limits fixed by the Board of Management for recurring and non -recurring
expenditure for a year are not exceeded and that all moneys are expended on the purpose for whic h
they are granted or allotted;
(c) be responsible for the preparation of annual accounts and the budget of the University and for
their presentat ion to the Board of Management;
(d) keep a constant watch on the state of the cash and bank balances a nd on the state of
investments;
(e) watch the progress of the collection of revenue and advise on the methods of collection
employed;
(f) ensure that the registers of buildings, land, furniture and equipment are maintained up -to-date
and that stock -checking is conducted, of equipment and other consumable materials in all offices,
Special Centres, Specialised Laboratories, Colleges and Institut ions maintained by the University;
(g) bring to the notice of the Vice -Chancellor unauthorised expenditure and other financial
irregularities and suggest disciplinary action against persons at fault; and
(h) call for from any office, Centre, Laboratory, College or Institution maintained by the
Unive rsity any information or returns that he may consider necessary for the performance of his
duties.
(8) Any receipt given by the Finance Officer or the person or persons duly authorised in this behalf by
the Boa rd of Management for any money payable to the University shall be sufficient disch arge for
payment of such money.
Deans of Schools of Studies
7. (1) Every Dean of a School of Studies shall be appointed by the Vice -Chancellor from among the
Professors in the School for a period of three years and he shall be eligible for reappointment:
Provided that a Dean on attaining the age of sixty years shall cease to hold office as such :
Provided further that if at any time there is no Professor in a School, the Vice -Chancellor, or a Dean
authorised by the Vice -Chancellor in this behalf, shall exercise the po wers of the Dean of the School.
(2) When the office of the Dean is vacant or when the Dean is, by reason of illness, absence or any
other cause, unable to perform duties of his office, the duties of the office shall be performed by such
person as the Vice -Chancell or may appoint for the purpose.
(3) The Dean shall be the Head of the School and shall be responsible for the conduct and
maintenance of the standards of teaching and research in the School and shall have such other functions
as may b e prescribed by the Ordinances.
(4) The Dean shall have the right to be present and to speak at any meeting of the Board of Studies or
Committees of the School, as the case may be, but shall not have the right to vote thereat unless he is a
member thereof.
Heads of Departments
8. (1) In the case of Department which have more than one Professor, the Head of the Department
shall be appointed by the Board of Management on the recom mendation of the Vice -Chance llor from
among the Professors.
(2) In the case of Departments where there is only one Professor, the Board of Management shall
have the option to appoint, on the recommendation of the Vice -Chancellor, either the Professor or a
Reader as the Head of the Department:
Provided that it shall be open to a Professor or Reader to decline the offer of appointment as the Head
of the Department.
(3) A person appointed as the Head of the Department shall hold office as such for a period of three
years and shall be eligible for re appointment.
20
(4) A Head of a Department may resign his office at any ti me during his tenure of office.
(5) A Head of a Department shall perform such duties as may be prescribed by the Ordinances.
Proctors
9. (1) Every Proctor shall be appointed by the Board of Management on the recommendation of the
Vice -Chancellor and shall exercise such powers and perform such duties as may be assigned to him by
the Vice -Chancellor.
(2) Every Proctor shall hold office for a term of two years and shall be eligible for reappointment.
Librarian
10. (1) The Librarian shall be appoint ed by the Board of Management on the recommendations of the
Selection Committee constituted for the purpose and he shall be , a whole -time officer of the University.
(2) The Librarian shall exercise such powers and perform such duties as may be assigned to him by
the Board of Management.
Quorum for meetings of the Board of Management.
11. (1) The Board of Management shall consist of t he following members, namely:
(i) Vice -Chancellor;
(ii) Pro -Vice -Chancellors;
(iii) Dean of Schools of studies to be appointed by the Vice -Chancellor by r otation according to
seniority;
(iv) one Head of the Department of the University, who is not a Dean, to be nominated by the
Vice -Chancellor by r otation according to seniority;
(v) one Professor, who is not a Dean or Head, to be appointed by the Vice -Chancellor by r otation
according to seniority;
(vi) one Reader, who is not a Head, to be appointed by the Vice -Chancellor by r otation according
to seniority;
(vii) one Lecturer to be appointed by the Vice -Chancellor by r otation according to seniority;
(viii) three representatives of the House of the People and the Council of States, two to be
nominated by the Speaker of the House of the People and one by the Chairman of the Council of
States fr om amongst the Members thereof;
(ix) a representative of the Ministry of Human Resource Development (Department of Education)
Government of India, to be nominated by the Visitor;
(x) a representative of the University Grants Commission to be nominated by the Visitor;
(xi) four persons of distinction in academic and/or public life to be nominated by the Visitor.
(2) All members of the Board of Management, other than ex officio members , shall hold office for a
period of three years fro m the date of their nomination.
(3) Seven members of the Board of Management shall form quorum for the meeting of the Board.
Powers and funct ions of the Board of Management
12. ( 1) The Board of Management shall have the power of management and administration of the
revenue and property of the University and the conduct of all administrative affairs of the University not
otherwise provided for.
21
(2) Subject to the provisions of this Act, the Statutes and the Ordinances, the Board of Management
shall, in addition to all other powers vested in it, have the following powers , namely:
(i) to create teaching and academic posts, to determine the number and emoluments of such posts
and to define the duties and co nditions of service of Professors, Readers, Lecturers and other
academic staff and Principals of Colleges and Institution s maintained by the University:
Provided that no action shall be taken by the Board of Management in respect of the number,
qualificati ons and the emoluments of teachers and academic staff otherwise than after consideration
of the recommend ations of the Academic Council;
(ii) to appoint such Professors, Readers, Lecturers and other academic staff, as may be necessary,
and Principals of Co lleges and Institutions maintained by the University on the recommendation of
the Selection Committee consituted for the purpose and to fill up temporary vacancies thereto ;
(iii) to create administrative, ministerial and other necessary posts and to make a ppointments
thereto in the manne r prescribed by the Ordinances;
(iv) to grant leave of absence to any officer of the University other than the Chancellor and the
Vice -Chancellor, and to make necessary arrangements for the discharge of the functions of s uch
officer during his absence;
(v) to regulate and enforce discipline among employees in accordance with t he Statutes and the
Ordinances;
(vi) to |
) to regulate and enforce discipline among employees in accordance with t he Statutes and the
Ordinances;
(vi) to manage and regulate the finances, accounts, investments, property, business and all other
administrative affairs of the University, and for that purpose to appoint such agents as it may think fit;
(vii) to fix limits on the total recurring and the total non -recurring expenditure for a year on the
recommenda tions of the Finance Committee;
(viii) to invest any money b elonging to the University, including any unapplied income, in such
stocks, funds, share or securities , from time to time, as it may think fit or in the purchase of
immovable property in India, with the like powers of varying suc h investment from time to time;
(ix) to transfer or accept transfers of any movable or immovable proper ty on behalf of the
University;
(x) to provide building s, premises, furniture and apparatus and other means needed for carryin g
on the work of the University;
(xi) to enter into, vary, carry out and cancel contracts on be half of the University;
(xii) to entertain, adjudicate upon, and, if thought fit , to redress any grievances of the employees
and students of the University who may, for any reason, feel aggrieved;
(xiii) to appoint examiners and moderators and, if necessary, to remove them, and to fix their fees,
emoluments and travelling and other allowances, after c onsulting the Academic Council;
(xiv) to select a common seal for the University and provide for the custody and use of such seal;
(xv) to make such special arrangements as may be necessary for the residence an d discipline of
women students;
(xvi) to delegate any of its powers to the Vice -Chancellor, the Pro -Vice -Chancellor, the Deans,
the Registrar or the Financ e Officer or such other employee or authority of the University or to a
committee appo inted by it as it may deem fit;
(xvii) to institute fellowships, scholarships, studentships, medals and prizes;
(xviii) to provide for the appointment of Visiting Profess ors, Emeritus Professors; Consultants;
and Scholars and determine the terms and condi tions of such appointments; and
(xix) to exercise such other powers and perform such other duties as may be conferred or imposed
on it by the Act, or the Statutes.
22
Acade mic Council
13. (1) The Academic Council shall consist of t he following members, namely:
(i) Vice -Chancellor;
(ii) Pro -Vice -Chancellor;
(iii) Dean of Schools of studies;
(iv) Heads of the teaching departments;
(v) All Professors;
(vi) four Readers to be appointed by the Vice -Chancellor by r otation according to seniority;
(vii) four Lecturers to be appointed by the Vice -Chancellor by rotation according to seniority;
(viii) Librarian;
(ix) four persons not in the service of the University to be nominated by the Vice -Chancellor on
the recommendations of the Academic Counc il for their special knowledge;
(x) two representatives of students , to be nominated by the Vice -Chancellor on academic merit,
one from amongst the research scholars and the other from the po st-graduate students from the
various schools of studies/Departments of th e University , on rotation basis.
(2) All members of the Academic Council, other than the ex officio and the student members, shall
hold office for a term of three years from the date of their nomination/appointment:
Provided that the tenure of student members shall be one academic year.
(3) Half of the total members of the Academic Council shall form quorum for a meeting of the
Academic Council.
(4) The student members shall not be al lowed to participate in discussions in respect of matters
relating to examinations, selection committees, appointments and conditions of service of the teaching
staff and actual process of evaluating academic per formance and merit of students.
Quorum for m eetings of the Academic Council
14. Nine Members of the Academic Council shall form a quorum for a meeting of the Academic
Council.
Powers of the Academic Council
15. Subject to the Act, the Statutes and the Ordinances, the Academic Council shall, in addition to all
other powers vested in it, have the following powers, namely:
(a) to exercise general supervision over the academic policies of the University and to g ive directions
regarding methods of instructions, co -operative teaching among Colleges and Institutions, evaluation of
research or impr ovements in academic standards;
(b) to bring about inter -School co -ordination, to establish or appoint committees or boards, for taking
up projects on an i nter-School basis;
(c) to consider matters of general academic interest either on its own initiative or on a reference by a
School or the Board of Management and to take appropriate action thereon; and
(d) to frame suc h regulations and rules consistent with the Statutes and the Ordinances regarding the
academic functioning of the University, discipline, residences, admissions, award of fellowships and
studentships, fees, concessions, corporate life and attendance.
23
The Planning Board
16. ( 1) The Planning Board shall be the principal planning body of the University and shall be
responsible for
(a) reviewing the educational progra mmes offered by the University;
(b) organising the structure of education in the University so as to provide opportunities to
students to offer different combinations of subjects appropriate for the development of personality
and ski lls for useful work in society;
(c) creating an atmosphere and environment conductive t o value -oriented education; and
(d) developing new teaching -learning processes which will combine the lectures, tutor ials,
seminars, demonstrations, self-studies and collective practical projects.
(2) The Planning Board shall have the power to advise on the development of the Univers ity and
review th e progress implementation of programmes so as to ascertain whether they are on the lines
recommended by it and shall also have the power to advise the Board of Management and the Academic
Council on any matter in connection therewith.
(3) The Academic Council and the Board of Management shall be bound to consider the
recommendations of the Planning Board and shall implement such of the recomme ndations as are
accepted by it.
(4) Such of those recommendations of the Planning Board as have not been accepted by the Board of
Management or the Academi c Council under c lause ( 3) shall be submitted by the Vice -Chancellor along
with the recommendations of the Board of Management or the Academic Council, to the Visitor for
advise and the advise of the Visitor shall be implemented by the Board of Management or the Academ ic
Council, as the case may be.
(5) The Planning Board may constitute such committee s as may be necessary for planning and
monitoring th e programmes of the University.
Schools of Studies and Departments
17. (1) The University shall have such Schools of Studies as may be specified by the Ordinances.
(2) Every School shall have a School Board and the members of the first School Board shall be
nominated by the Board of Management and shall hold offi ce for a period of three years.
(3) The powers and functions of a School Board shall b e prescribed by the Ordinances.
(4) The conduct of the meetings of a School Board and the quorum required for such meetings shall
be prescribed by the Ordinances .
(5) (a) Each School shall consist of such Departments as may be as signed to it by the Ordinances.
(b) No Department shall be established or ab olished except by the Statutes:
Provided that the Board of Management may, on the recommendation of the Academic Council,
establish Centres of Studies to which may be assigned such teachers of the University as the Board of
Management may consider necessary.
(c) Each Department shall consist of t he following members, namely:
(i) Teachers of the De partment;
(ii) Per sons conduct ing research in the Department;
(iii) Dean of the School;
(iv) Honorary Professors, if any, attached to the Department; and
(v) such other persons as may be members of the Department in accordance with the provisions of
the Ordinances.
24
Board o f Studies
18. ( 1) Each Department shall have a Board of Post -graduate Studies and a B oard of Under -graduate
Studies.
(2) The constitution of a Board of Post -graduate Studies and the term of office of its members shall be
prescribed by t he Ordinances.
(3) The functions of a Board of Post -graduate Studies shall be to approve subjects for research for
various degrees and other requirements of research degrees and to recommend to the concerned School
Board in the manner prescribed by the Ord inances
(a) cour ses of studies and appointment of examiners for Post -graduate courses, but excluding
research degrees;
(b) appointment of supervisors of research; and
(c) measures for the impro vement of the standard of post -graduate teaching and research:
Provided that the above functions of a Board of Post -graduate Studies shall, during the period of three
years immediately after the commencement of the Act, be performed by the Department.
(4) The constitution and functions of a Board of Under -graduate Stu dies and the term of its members
shall b e prescribed by the Ordinances.
Finance Committee
19. (1) The Finance Committee shall consist of t he following members, namely:
(i) the Vice -Chancellor;
(ii) one or more Pro -Vice -Chancellors, as the case may be;
(iii) three persons nominated by the Board of Management, out of whom at least one shall be a
member of the Board of Management; and
(iv) three pe rsons nominated by the Visitor.
(2) Five members of the Finance Committee shall form a quorum for a meeting o f the Finance
Committee.
(3) All the members of the Finance Committee, other then ex officio members, shall hold of fice for a
term of three years.
(4) A member of the Finance Committee shall have the right to record a minute of dissent if he does
not agree w ith any dec ision of the Finance Committee.
(5) The Finance Committee shall meet at least thrice every year to examine the accounts and to
scruti nise proposals for expenditure.
(6) All proposals relating to creation of posts, and those items which have not been included in the
Budget, should be examined by the Finance Committee before they are conside red by the Board of
Management.
(7) The annual accounts and the financial estimates of the University prepared by the Finance Officer
shall be laid before the F inance Committee for consideration and comments and thereafter submitted to
the Board of Management for approval.
(8) The Finance Committee shall recommend limits for the total recurring expenditure and the total
non-recurring expenditure for the year, bas ed on the income and resources of the University (which, in the
case of productive works, may include the proceeds of loans).
Selection Committees
20. ( 1) There shall be Selection Committees for making recommendations to the Board of
Management for appointment to the posts of Professor, Reader, Lecturer, Registrar, Finance Officer,
Librarian and Principals of Colleges and Institution s maintained by the University.
25
(2) The Selection Committee for appointment to the posts specified in column 1 of the T able b elow
shall consist of the Vice -Chancellor, Pro -Vice -Chancellor, a nominee of the Visitor and the persons
specified in the corresponding entry in column 2 of the said Table:
TABLE
1 2
Professor (i) The Head of the Department concerned if he is a
Professor.
(ii) One Professor to be nominated by the Vice -Chancellor.
(iii) Three persons not in the service of the University,
nominated by the Board of Management, out of a panel
of names recommended by the Academic Council for
their special knowledge of, or interest in, the subject
with which the Professor will be concerned.
Reader/Lecturer (i) The Head of the Department concerned.
(ii) One Professor to be nominated by the Vice -Chancellor.
(iii) Two persons not in the service of the University,
nominated by the Board of Management, out of a panel
of names recommended by the Academic Council for
their special knowledge of, or interest in, the subject
with which the Reader or a Lecturer will be concerned.
Registrar, Finance Officer (i) Two members of the Board of Management nominated
by it.
(ii) One person not in the service of the University
nominated by the Board of Management.
Librarian (i) Two persons not in the service of the University, who
have special knowledge of the subject of the Library
Science /Library Administration to be nominated by the
Board of Management.
(ii) One person not in the service of the University,
nominated by the Board of Management.
Principal of College or Institution
maintained by the University Three persons not in the service of the University of
whom two shall be nominated by the Board of
Management and one by the Academic Council for their
special knowledge of, or interest in, a subject in which
instruction is being provided by the College or
Institution.
NOTE : 1. Where the appointment is being made for an inter -disciplinary project, the head of the
project shall be deemed to be the Head of the Department concerned.
2. The Professor to be nominated shall be Professor concerned with the speciality for which
the selection is being made and that the Vice -Chancellor shall consult the Head of the
Department and the Dean of School before nominating the Professor.
(3) The Vice -Chancellor, or in hi s absence, one of the Pro -Vice -Chancellor shall preside at the
meetings of a Selection Committee:
Provided that the meetings of the Selection Committee shall be fixed after prior consultation with,
and subjec t to the convenience of Visitor s nominee and the persons nominated by the Board of
Management under clause ( 2):
26
Provided further that the proceedings of the Selection Committ ee shall not be valid unless,
(a) where the number of Visitor s nominee and the persons nominated by the Board of
Management is four in all, at least three of them attend the meeting; and
(b) where the number of Visitor s nominee and the persons nominated by the Board of
Management is three in all, at least two of them attend the meeting.
(4) The meeting of a Selection Committee shall be convened by the Vice -Chancellor or in hi s abse nce
by the Pro -Vice -Chancellor.
(5) The procedure to be followed by a Selection Committee in making recommendations shall be laid
down in the Ordinances.
(6) If the Board of Management is unable to accept the recommendations made by a Selection
Commi ttee, it shall record its reasons and submit the case to the Visitor for final orders.
(7) Appointments to temporary posts shall be made i n the manner indicated below:
(i) If the temporary vacancy is for a duration longer than one academic session, it shall be filled
on the advice of the |
:
(i) If the temporary vacancy is for a duration longer than one academic session, it shall be filled
on the advice of the Selection Committee in accordance with the procedure indi cated in the foregoing
clauses:
Provided that if the Vice -Chancellor is satisfied that in the interests of work it is necessary to fill
the vacancy, the appointme nt may be made on a purely temporary basis by a local Selection
Committee referred to in sub -clause ( ii) for a p eriod not exceeding six months.
(ii) If the temporary vacancy is for a period less than a year, an appointment to such vacancy shall
be made on the recommendation of a local Selection Committee consisting of the Dean of the School
concerned, the Head of the Department and a nominee of the Vice -Chancellor:
Provided that if the same person holds the offices of the Dean and the Head of the Department,
the Selection Committee may contain two nominees of the Vice -Chancellor:
Provided further that in case sudden casual vacancies of teaching posts caused by death or any
other reason, the Dean may, in consultation with the Head of the Department concerned, make a
temporary appointment for a month and report to the Vice -Chancellor and the Re gistrar about such
appointment.
(iii) No teacher appointed temporarily shall, if he is not recommended by a regular Selection
Committee for appointment under the Statutes, be continued in service on such temporary
employment, unless he is subsequently selected by a local Selection Committee or a regular Selection
Committee, for a t emporary or permanent a ppointment, as the case may be.
Special mode of appointment
21. ( 1) Notwithstanding anything contained in Statute 20, the Board of Management may invite a
person of high academic distinction and professional attainments to accept a p ost of Professor or Reader
or any other academic post in the University, as the case may be, on such terms and conditions as it deems
fit, and on the person agreeing to do so appoint him to the post.
(2) The Board of Management may appoint a teacher or any other academic staff working in any
other University or organisation for undertaking a joint project in accordance with the manner laid down
in the Ordinances.
Appointment for fixed tenure
22. The Board of Management may appoint a person selected in accordance with the procedure laid
down in Statute 20 for a fixed tenure on such terms and conditions as it deems fit.
27
Recognised teachers
23. (1) The qualifications of recognised teachers sha ll be such as may be prescribed by the
Ordinances.
(2) All applications for the recognition of teachers shall be made in such manner as may be laid down
in the Ordinances.
(3) No teacher shall be recognised as a teacher except on the recommendation of a S election
Committee constituted for the purpose in the mann er laid down in the Ordinances.
(4) The period of recognition of a teacher shall be determined by the Ordinances made in that behalf.
(5) The Academic Council may, be a special resolution passed by a majority of not less than two -
thirds of the members present and voting, withd raw recognition from a teacher:
Provided that no such resolution shall be passed until notice in writing has been given to the person
concerned calling upon him to show cause, w ithin such time as may be specified in the notice, why such
resolution should not be passed and until his objections, if any, and any evidence he may produce in
support of them have been considered by the Academic C ouncil.
(6) Any person aggrieved by an or der of withdrawal under clause ( 5) may, within three months from
the date of communication to him of such order, appeal to the Board of Management which may pass
such orders thereon as it thinks fit.
Committees
24. ( 1) Any authority of the University may appoint as many standing or special Committees as it
may deem fit, and may appoint to such Committees persons who are not members of such authority.
(2) Any such Committee appointed under clause ( 1) may deal with any subject delegated to it subject
to sub sequent confirmati on by the authority appointing.
Terms and conditions of service and code of conduct of the teachers, etc.
25. ( 1) All the teachers and other academic staff of the University shall, in the absence of any
agreement to the contrary, be gove rned by the terms and conditions of service and code of conduct as are
specified in the S tatutes, the Ordinances and the Regulations.
(2) Every teacher and member of the academic staff of the University shall be appointed on a written
contract, the form of which shall b e prescribed by the Ordinances.
(3) A copy of every contract referred to in clause ( 2) shall be deposited with the Registrar.
Terms and conditions of service and code of conduct of other employees
26. All the employees of the University oth er than the teachers and other academic staff of the
University, shall, in the absence of any contract to the contrary, be governed by the terms and conditions
of service and code of conduct as are specified in the Statutes, the Ordinances and the Regulati ons.
Seniority list
27. ( 1) Whenever, in accordance with the Statutes, any person is to hold an office or be a member of
an authority of the University by rotation according to seniority, such seniority shall be determined
according to the length of continuous service of such person in his grade, and, in accordance with such
other principles as the Board of Management may , from time to time, prescribe.
(2) It shall be the duty of the Registrar to prepare and maintain, in respect of each class of perso ns to
whom the provisions of these Statutes apply, a complete and up -to-date seniority list in accordance wit h
the provisions of clause ( 1).
(3) If two or more persons have equal length of continuous service in a particular grade or the relative
seniority of any person or persons is otherwise in doubt, the Registrar may, on his own motion and shall,
at the request of any such person, submit the matter to the Board of Management whose decision thereon
shall be final.
28
Removal of employees of the University
28. (1) Where there is an allegation of misconduct against a teacher, a member of the academic staff
or other employee of the University, the Vice -Chancellor, in the case of the teacher or member of the
academic staff, and the authority competent to appoint (hereinafter referred to as the appointing authority)
in the case of other employee, may, by order in writing, place such teacher, member of the academic staff
or other employee, as the case may be , under suspension and shall forthwith report to the Board of
Management the circumstanc es in which the order was made:
Provided that the Board of Management may, if it is of the opinion that the circumstances of the case
do not warrant the suspension of the teacher or the member of the aca demic staff, revoke suc h order.
(2) Notwithstanding anything contained in the terms of the contract of appointment or of any other
terms and conditions of service of the employees , the Board of Management in respect of teachers and
other academic staff, and the appointing author ity in respect of other employees, shall have the power to
remove a teacher or a member of the academic staff, or as the case may be, other emp loyee on grounds of
misconduct.
(3) Save as aforesaid, the Board of Management or as the case may be, the appoint ing authority, shall
not be entitled to remove any teacher, member of the academic staff or other employee except for a good
cause and after giving three months notice or on payment of three months salary in lieu thereof.
(4) No teacher, member of the academic staff or other employee shall be removed under clause ( 2) or
clause ( 3) unless he has been given a reasonable opportunity of showing cause against the action propose d
to be taken in regard to him.
(5) The removal of a teacher, member of the academ ic staff or other employee shall take effect from
the date on which t he order of removal is made:
Provided that where the teacher, member of the academic staff or other employee is under suspension
at the time of his removal, such removal shall take effect from the date on which he was placed under
suspension.
(6) Notwithstanding anything contained in the foregoing provisions of this Statute, a teacher, member
of the academic staff or other employee may resign,
(a) if he is a permanent employee , only after giving three months notice in writing to the Board
of Management or the appointing authority, as the case may be, or by paying three month s salary in
lieu thereof;
(b) if he is not a permanent employee, only after giving on e month s notice in writing to the
Board of Management or, as the case may be, the appointing authority or by paying one months
salary in lieu thereof:
Provided that such resignation shall take effect only on the date on which the resignation is accepted
by the Board of Management or the appointing authority, as the case may be.
Honorary degrees
29. ( 1) The Board of Management ma y, on the recommendation of the Academic Council and by a
resolution passed by a majority of not less than two -thirds of the members present and voting, make
proposals to the Visitor for the conferment of honorary degrees:
Provided that in case of emergenc y, the Board of Management may, on its o wn motion, make such
proposals.
(2) The Board of Management may, by a resolution passed by a majority of not less than two -thirds of
the members present and voting, withdraw, with the previous sanction of the Visitor , any honorary degr ee
conferred by the University.
29
Withdrawal of degrees, etc.
30. The Board of Management may, by a special resolution passed by a majority of not less than
two-thirds of the members present and voting, withdraw any degree or academic di stinction conferred on,
or any certificate or diploma granted to, any person by the University for good and sufficient cause:
Provided that no such resolution shall be passed until a notice in writing has been giv en to that person
calling upon him to show cause within such time as may b e specified in the notice why such a resolution
should not be passed and until his objections, if any, and any evidence he may produce in support of
them, have been conside red by the Board of Management.
Maintenance of discip line among students of the University
31. ( 1) All powers relating to discipline and disciplinary action in relation to students of the
University shal l vest in the Vice -Chancellor.
(2) The Vice -Chancellor may delegate all or any of his powers as he deems proper to a Proctor and to
such other officers as he may specify is this behalf.
(3) Without prejudice to the generality of his powers relating to the maintenance of discipline and
taking such action, as may seem to him appropriate for the maintenance of d iscipline, the Vice -Chancellor
may, in exercise of his powers, by order, direct that any student or students be expelled, or rusticated, for
a specified period, or be not admitted to a course or courses of study in a College, Institution or
Department of t he University for a stated period, or be punished with fine for a n amount to be specified in
the order, or be debarred from taking an examination or examinations conducted by the University,
College, Institution or Department or a School for one or more ye ars, or that the results of the student or
students concerned in the examination or examinations in which he or they have appeared be cancelled.
(4) The Principals of Colleges and Institutions, Deans of Schools of Studies and Heads of teaching
Departments in the University shall have the authority to exercise all such disciplinary powers over the
students in their respective Colleges, Institutions, Schools and teaching Departments in the University as
may be necessary for the proper conduct of such Colleges , Institutions, Sc hools and teaching
Departments.
(5) Without prejudice to the powers of the Vice -Chancellor, the Principals and other persons specified
in clause ( 4), detailed rules of discipline and proper conduct shall be made by the University. The
Principals of Colleges, Institutions, Deans of Schools of Studies and Heads of teaching Departments in
the University may also make the supplementary rules as they deem necessary for the aforesaid purposes.
(6) At the time of admission, every student shall be required to sign a declaration to the effect that he
submits himself to the disciplinary jurisdiction of the Vice -Chancellor and other authorities of the
University.
Convocations
32. Convocations of the University for the conferring of degrees or for other purposes shall be held in
such manner as may b e prescribed by the Ordinances.
Acting Chairman of meetings
33. Where no provision is made for a President or Chairman to preside over a meeting of any
authority of the University or any Committee of suc h authority or when the President or Chairman so
provided for is absent, the members present shall elect one from among themselves t o preside at such
meeting.
Resignation
34. Any member, other than an ex-officio member of the Board of Management, the Acad emic
Council or any other authority of the University or any Committee of such authority may resign by letter
addressed to the Registrar and the resignation shall take effect as soon as such letter is received by the
Registrar.
30
Disqualifications
35. ( 1) A person shall be disqualified for being chosen as, and for being, a member of any of the
authorities of the University,
(i) if he is of unsound mind;
(ii) if h e is an undischarged insolvent;
(iii) if he has been convicted by a court of law of an offence involving moral turpitude and
sentenced in respect thereof to imprisonmen t for not less than six months.
(2) If any question arises as to whether a person is or had been subjected to any of the
disqualifications mentioned in clause ( 1), the questio n shall be referred to the Visitor and his decision
shall be final and no suit or other proceeding shall lie in any civil court against suc h decision.
Residence condition for membership and office
36. Notwithstanding anything contained in the Statutes, a person who is not ordinarily resident in
India shall be eligible to be an officer of the University or a member of any authority of the University.
Membership of authorities by virtue of membership of other bodies
37. Notwithstanding anything contained in the Statutes, a person who holds any post in the University
or is a member of any authority or body of the University in his capacity as a member of a particular
authority or body or as the holder of a particular appointment shall hold such of office or m embership
only for so long as he continues to be a member of that particular authority or body or the holder of that
particular appointment, as the case may be.
Alumni Association
38. (1) There shall be an Alumni Association for the University.
(2) The subscription for membership of the Alumni Association shall b e prescribed by the
Ordinances.
(3) No member of the Alumni Association shall be entitled to vote or stand for election unless he has
been a member of the Association for at least one year prior to the date of the election and is a degree
holder of the University o f at least five years standing:
Provided that the condition relating to th e completion of one year s membership shall not apply in the
case of the first election.
Students Council
39. (1) There shall be constituted in the University, a Stud |
of the first election.
Students Council
39. (1) There shall be constituted in the University, a Students Council for every academic year,
consisting of
(i) the Dean of Students Welfare who shall be the Cha irman of the Students Council;
(ii) all students who have won prizes in the previous academ ic year in the fields of studies, fine,
arts, sports and extension work;
(iii) twenty students to be nominated by the Academic Council on the basis of merit in studies,
sports activities and all -round development of personality:
Provided that any student o f the University shall have the right to bring up any matter concerning the
University before the Students Council if so permitted by the Chairman, and he shall have the right to
participate in the discussions at any meeting when the matter is taken up fo r consideration.
(2) The functions of the Students Council shall be to make suggestions to the appropriate authorities
of the University in regard to the p rogrammes of studies, students welfare and other matters of
importance in regard to the working of the University in general and such suggestions shall be made on
the basis of consensus of opinion.
31
(3) The Students Council shall meet at least once in an academic year preferably in the beginning of
that year.
Ordinances how made
40. ( 1) The first Ordin ances made under sub -section ( 2) of section 28 may be amended, repealed or
added to at any time by the Board of Management in the manner speci fied below.
(2) No Ordinance in respect of the matters enumerated in section 28 other than those enumerated in
clause ( n) of sub -section ( 1) thereof, shall be made by the Board of Management unless a draft of such
Ordinance has been proposed by the Academi c Council.
(3) The Board of Management shall not have power to amend any draft of any Ordinance proposed by
the Ac ademic Council under clause ( 2), but may reject the proposal or return the draft to the Academic
Council for reconsideration, either in whole or in part, together with any amendment which the B oard of
Management may suggest.
(4) Where the Board of Manageme nt has rejected or returned the draft of an Ordinance proposed by
the Academic Council, the Academic Council may consider the question afresh and in case the original
draft is reaffirmed by a majority of not less than two -thirds of the members present and voting and more
than half the total number of members of the Academic Council, the draft may be sent back to the Board
of Management which shall either adopt it or refer it to the Visitor whose decision shall be final.
(5) Every Ordinance made by the Board of Management shal l come into effect immediately.
(6) Every Ordinance made by the Board of Management shall be submitted to the Visitor within two
weeks from the date of its adopttion. The Visitor shall have the power to direct the University within four
weeks of the receipt of the Ordinance to suspend the operation of any such Ordinance and he shall, as
soon as possible, inform the Board of Management about his objection to the proposed Ordinance. The
Visitor may, after receiving the commen ts of the Unive rsity, either withdraw the order suspending the
Ordinance or disallow the Ordinance, a nd his decision shall be final.
Regulations
41. ( 1) The authorities of the University may make Regulations consistent with the Act, the Statutes
and the Ordinances for t he following matters, namely:
(i) laying down the procedure to be observed at their meetings and the number of members
required to form a quorum;
(ii) providing for all matters which are required by the Act, the Statutes or the Ordinances t o be
prescribed by Regulations;
(iii) providing for all other matters solely concerning such authorities or committees appointed by
them and not provided for by the Act, the Statutes or the Ordinances.
(2) Every authority of the University shall make Regulations providin g for the giving of notice to the
members of such authority of the dates of meeting and of the business to be considered at meetings and
for the keeping of a record of the proceedings of meetings.
(3) The Board of Management may direct the amendment in suc h manner as it may specify, of any
Regulation made under the Statutes or the annulment of any such Regulation.
Delegation of powers
42. Subject to the provisions of the Act and the Statutes, any officer or authority of the University
may delegate his or its powers to any other officer or authority or person under his or its respective
control and subject to the condition that overall responsibility for the exercise of the powers so delegated
shall continue to vest in the officer or authority delegating su ch powers.
|
THE WHISTLE BLOWERS PROTECTION ACT, 2011
NO. 17 OF 2014
[9th May , 2014.]
AN ACT to establish a mechanism to receive complaints relating to disclosure on
any allegation of corruption or wilful misuse of power or wilful misuse of
discretion against any public servant and to inquire or cause an inquiry into
such disclosure and to provide adequate safeguards against victimisation ofthe person making such complaint and for matters connected therewith and
incidental thereto.
BE it enacted by Parliament in the Sixty-second Year of the Republic of India as
follows:
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Whistle Blowers Protection Act, 2011.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint; and different dates may be appointed for different provisionsof this Act and any reference in any provision to the commencement of this Act shall beconstrued as a reference to the coming into force of that provision.
2. The provisions of this Act shall not apply to the armed forces of the Union, being
the Special Protection Group constituted under the Special Protection Group Act, 1988.Short title,extent andcommence-ment.
Provisions of
this Act not toapply to Special
Protection
Group.34 of 1988 REGISTERED NO. DL(N)04/0007/200314
EXTRAORDINARY
PART II Section 1
PUBLISHED BY AUTHORITY
NEW DELHI, MONDAY, MAY 12, 2014/VAISAKHA 22, 1936 (SAKA)
Separate paging is given to this Part in order that it may be filed as a separate compilation.
MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 12th May, 2014 /Vaisakha 22, 1936 (Saka)
The following Act of Parliament received the assent of the President on the
9th May, 2014, and is hereby published for general information:
2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II
3. In this Act, unless the context otherwise requires,
(a) "Central Vigilance Commission" means the Commission constituted under
sub-section ( 1) of section 3 of the Central Vigilance Commission Act, 2003;
(b) "Competent Authority" means
(i) in relation to a Member of the Union Council of Ministers, the
Prime Minister;
(ii) in relation to a Member of Parliament, other than a Minister, the Chairman
of the Council of States if such Member is a Member of the Council of States orthe Speaker of the House of the People if such Member is a Member of theHouse of the People, as the case may be;
(iii) in relation to a Member of the Council of Ministers in a State or Union
territory, the Chief Minister of the State or Union territory, as the case may be;
(iv) in relation to a Member of Legislative Council or Legislative Assembly
of a State or Union territory, other than a Minister, the Chairman of the LegislativeCouncil if such Member is a Member of the Council or the Speaker of theLegislative Assembly if such Member is a Member of the Assembly, as the casemay be;
(v) in relation to
(A) any Judge (except a Judge of the Supreme Court or of a High
Court) including any person empowered by law to discharge, whether byhimself or as a member of any body of persons, any adjudicatory functions;or
(B) any person authorised by a court of justice to perform any duty,
in connection with the administration of justice, including a liquidator,receiver or commissioner appointed by such court; or
(C) any arbitrator or other person to whom any cause or matter has
been referred for decision or report by a court of justice or by a competentpublic authority,
the High Court;
(vi) in relation to
(A) any person in the service or pay of the Central Government or
remunerated by the Central Government by way of fees or commissionfor the performance of any public duty except Ministers, Members ofParliament and members or persons referred to in clause ( a) or clause ( b) or
clause ( c) or clause ( d) of article 33 of the Constitution, or in the service or
pay of a society or local authority or any corporation established by orunder any Central Act, or an authority or a body owned or controlled oraided by the Central Government or a Government company as defined insection 617 of the Companies Act, 1956, owned or controlled by the CentralGovernment; or
(B) any person who holds an office by virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or toconduct an election or part of an election in relation to elections toParliament or a State Legislature; or
(C) any person who holds an office by virtue of which he is authorised
or required to perform any public duty (except Ministers and Members ofParliament); orDefinitions.
45 of 2003.
1 of 1956.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 3
(D) any person who is the president, secretary or other office-bearer
of a registered co-operative society engaged in agriculture, industry, tradeor banking, receiving or having received any financial aid from the CentralGovernment or from any corporation established by or under a CentralAct, or any authority or body or a Government company as defined insection 617 of the Companies Act, 1956 owned or controlled or aided bythe Central Government; or
(E) any person who is a chairman, member or employee of any Central
Service Commission or Board, by whatever name called, or a member ofany selection committee appointed by such Commission or Board for theconduct of any examination or making any selection on behalf of suchCommission or Board; or
(F) any person who is a Vice-Chancellor or member of any governing
body, professor, associate professor, assistant professor, reader, lectureror any other teacher or employee, by whatever designation called, of anyUniversity established by a Central Act or established or controlled orfunded by the Central Government or any person whose services havebeen availed of by such University or any such other public authority inconnection with holding or conducting examinations; or
(G) any person who is an office-bearer or an employee of an
educational, scientific, social, cultural or other institution, in whatevermanner established, receiving or having received any financial assistancefrom the Central Government or any local or other public authority,
the Central Vigilance Commission or any other authority, as the Central
Government may, by notification in the Official Gazette, specify in this behalfunder this Act;
(vii) in relation to
(A) any person in the service or pay of the State Government or
remunerated by the State Government by way of fees or commission, forthe performance of any public duty except Ministers, Members ofLegislative Council or Legislative Assembly of the State, or in the serviceor pay of a society or local authority or any corporation established by orunder a Provincial or State Act, or an authority or a body owned or controlledor aided by the State Government or a Government company as defined insection 617 of the Companies Act, 1956, owned or controlled by the StateGovernment; or
(B) any person who holds an office by virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or toconduct an election or part of an election in relation to municipality orPanchayats or other local body in the State; or
(C) any person who holds an office by virtue of which he is
authorised or required to perform any public duty in relation to the affairsof the State Government (except Ministers and Members of LegislativeCouncil or Legislative Assembly of the State); or
(D) any person who is the president, secretary or other office-bearer
of a registered co-operative society engaged in agriculture, industry, tradeor banking, receiving or having received any financial aid from the StateGovernment or from any corporation established by or under a Provincialor State Act, or any authority or body or a Government company as definedin section 617 of the Companies Act, 1956 owned or controlled or aidedby the State Government; or1 of 1956.
1 of 1956.
1 of 1956.
4 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II
(E) any person who is a chairman, member or employee of any State
Service Commission or Board, by whatever name called, or a member ofany selection committee appointed by such Commission or Board for theconduct of any examination or making any selection on behalf of suchCommission or Board; or
(F) any person who is a Vice-Chancellor or member of any governing
body, professor, associate professor, assistant professor, reader, lectureror any other teacher or employee, by whatever designation called, of anyUniversity established by a Provincial or State Act or established orcontrolled or funded by the State Government and any person whoseservices have been availed of by such University or any such other publicauthority in connection with holding or conducting examinations; or
(G) any person who is an office-bearer or an employee of an
educational, scientific, social, cultural or other institution, in whatevermanner established, receiving or having received any financial assistancefrom the State Government or any local or other public authority,
the State Vigilance Commission, if any, or any officer of the State Government
or any other authority, as the State Government may, by notification in the OfficialGazette, specify in this behalf under this Act;
(viii) in relation to members or persons referred to in clause ( a) or
clause ( b) or clause ( c) or clause ( d) of article 33 of the Constitution, any authority
or authorities as the Central Government or the State Government, as the casemay be, having jurisdiction in respect thereof, may, by notification in the OfficialGazette, specify in this behalf under this Act;
(c) "complainant" means any person who makes a complaint relating to disclosure
under this Act;
(d) "disclosure" means a complaint relating to,
(i) an attempt to commit or commission of an offence under the Prevention
of Corruption Act, 1988;
(ii) wilful misuse of power or wilful misuse of discretion by virtue of which
demonstrable loss is caused to the Government or demonstrable wrongful gainaccrues to the public servant or to any third party;
(iii) attempt to commit or commission of a criminal offence by a public
servant,
made in writing or by electronic mail or electronic mail message, against the public
servant and includes public interest disclosure referred to in sub-section ( 2) of
section 4;
(e) "electronic mail" or "electronic mail message" means a message or
information created or transmitted or received on any computer, computer system,computer resource or communication device including attachments in text, image,audio, video and any other electronic record, which may be transmitted with themessage;
(f) "Government company" means a company referred to in section 617 of the
Companies Act, 1956;
(g) "notification" means a notification published in the Gazette of India or, as
the case may be, the Official Gazette of a State;
(h) "public authority" means any authority, body or institution falling within the
jurisdiction of the Competent Authority;49 of 1988.
1 of 1956.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 5
(i) "public servant" shall have the same meaning as assigned to it in clause ( c) of
section 2 of the Prevention of Corruption Act, 1988 but shall not include a Judge of theSupreme Court or a Judge of a High Court;
(j) "prescribed" means prescribed by rules made by the Central Government and
the State Government, as the case may be, under this Act;
(k) "regulations" means the regulations made by the Competent Authority under
this Act.
CHAPTER II
P
UBLIC INTEREST DISCLOSURE
4. (1) Notwithstanding anything contained in the provisions of the Official Secrets
Act, 1923, any public servant or any other person including any non-governmentalorganisation, may make a public interest disclosure before the Competent Authority.
(2) Any disclosure made under this Act shall be treated as public interest disclosure
for the purposes of this Act and shall be made before the Competent Authority and thecomplaint making the disclosure shall, on behalf of the Competent Authority, be received bysuch authority as may be specified by regulations made by the Competent Authority.
(3) Every disclosure shall be made in good faith and the person making disclosure
shall make a personal declaration stating that he reasonably believes that the informationdisclosed by him and allegation contained therein is substantially true.
(4) Every disclosure shall be made in writing or by electronic mail or electronic mail
message in accordance with the procedure as may be prescribed and contain full particularsand be accompanied by supporting documents, or other materials, if any.
(5) The Competent Authority may, if it deems fit, call for further information or
particulars from the person making the disclosure.
(6) No action shall be taken on public interest disclosure by the Competent Authority
if the disclosure does not indicate the identity of the complainant or public servant makingpublic interest disclosure or the identity of the complainant or public servant is found incorrector false.
CHAPTER III
INQUIRY IN RELATION TO PUBLIC INTEREST DISCLOSURE
5. (1) Subject to the provisions of this Act, the Competent Authority shall, on receipt
of a public interest disclosure under section 4,
(a) ascertain from the complainant or the public servant whether he was the
person or the public servant who made the disclosure or not;
(b) conceal the indentity of the complainant unless the complainant himself has
revealed his identity to any other office or authority while making public interestdisclosure or in his complaint or otherwise.
(2) The Competent Authority shall, upon receipt of the complaint and concealing the
identity of the complainant, or the public servant in the first instance, make discreet inquiry,in such manner and within such time as may be prescribed, to ascertain whether there is anybasis for proceeding further to investigate the disclosure.
(3) If the Competent Authority, either as a result of the discreet inquiry, or on the basis
of the disclosure itself without any inquiry, is of the opinion that the disclosure requires to beinvestigated, it shall seek comments or explanation or report from the Head of the Departmentof the organisation or authority, board or corporation concerned or office concerned withinsuch time as may be specified by it.Requirementof publicinterestdisclosure.
Powers and
functions ofCompetentAuthority onreceipt ofpublic interestdisclosure.49 of 1988.
19 of 1923.
6 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II
(4) While seeking comments or explanations or report referred to in sub-section ( 3),
the Competent Authority shall not reveal the identity of the complainant or the public servantand direct the Head of the Department of the organisation concerned or office concerned notto reveal the identity of the complainant or public servant:
Provided that if the Competent Authority is of the opinion that it has, for the purpose
of seeking comments or explanation or report from them under sub-section ( 3) on the public
disclosure, become necessary to reveal the identity of the complainant or public servant tothe Head of the Department of the organisation or authority, board or corporation concernedor office concerned, the Competent Authority may, with the prior written consent of thecomplainant or public servant, reveal the identity of the complainant or public servant tosuch Head of the Department of the organisation or authority, board or corporation concernedor office concerned for the said purpose:
Provided further that in case the comp |
of the Department of the organisation or authority, board or corporation concernedor office concerned for the said purpose:
Provided further that in case the complainant or public servant does not agree to his
name being revealed to the Head of the Department, in that case, the complainant or publicservant, as the case may be, shall provide all documentary evidence in support of his complaintto the Competent Authority.
(5) The Head of the organisation or office concerned shall not directly or indirectly
reveal the identity of the complainant or public servant who made the disclosure.
(6) The Competent Authority, if after conducting an inquiry, is of the opinion that
(a) the facts and allegations contained in the disclosure are frivolous or vexatious;
or
(b) there are no sufficient grounds for proceeding with the inquiry,
it shall close the matter.
(7) After receipt of the comments or explanations or report referred to in sub-section
(3), if the Competent Authority is of the opinion that such comments or explanations or
report reveals either wilful misuse of power or wilful misuse of discretion or substantiatesallegations of corruption, it shall recommend to the public authority to take any one or moreof the following measures, namely:
(i) initiating proceedings against the concerned public servant;
(ii) taking appropriate administrative steps for redressing the loss caused to the
Government as a result of the corrupt practice or misuse of office or misuse of discretion,as the case may be;
(iii) recommend to the appropriate authority or agency for initiation of criminal
proceedings under the relevant laws for the time being in force, if so warranted by thefacts and circumstances of the case;
(iv) recommend for taking of corrective measures;
(v) take any other measures not falling under clauses ( i) to ( iv) which may be
necessary for the purpose of this Act.
(8) The public authority to whom a recommendation is made under sub-section ( 7)
shall take a decision on such recommendation within three months of receipt of suchrecommendation, or within such extended period not exceeding three months, as theCompetent Authority may allow on a request made by the public authority:
Provided that in case the public authority does not agree with the recommendation of
the Competent Authority, it shall record the reasons for such disagreement.
(9) The Competent Authority shall, after making an inquiry, inform the complainant or
public servant about the action taken on the complaint and the final outcome thereof:
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 7
Provided that in a case where, after making an inquiry, the Competent Authority decides
to close the case, it shall, before passing the order for closure of the case, provide anopportunity of being heard to the complainant, if the complainant so desires.
6. (1) If any matter specified or an issue raised in a disclosure has been determined by
a Court or Tribunal authorised to determine the issue, after consideration of the mattersspecified or issue raised in the disclosure, the Competent Authority shall not take notice ofthe disclosure to the extent that the disclosure seeks to reopen such issue.
(2) The Competent Authority shall not entertain or inquire into any disclosure
(a) in respect of which a formal and public inquiry has been ordered under the
Public Servants (Inquiries) Act, 1850; or
(b) in respect of a matter which has been referred for inquiry under the
Commissions of Inquiry Act, 1952.
(3) The Competent Authority shall not investigate, any disclosure involving an
allegation, if the complaint is made after the expiry of seven years from the date on which theaction complained against is alleged to have taken place.
(4) Nothing in this Act shall be construed as empowering the Competent Authority to
question, in any inquiry under this Act, any bona fide action or bona fide discretion (including
administrative or statutory discretion) exercised in discharge of duty by the employee.
CHAPTER IV
POWERS OF COMPETENT AUTHORITY
7. (1) Without prejudice to the powers conferred upon the Competent Authority under
any other law for the time being in force, the Competent Authority, may require, for thepurpose of any inquiry any public servant or any other person who in its opinion shall beable to furnish information or produce documents relevant to the inquiry or assist in theinquiry, to furnish any such information or produce any such document as may be necessaryfor the said purpose.
(2) For the purpose of any such inquiry (including the preliminary inquiry), the
Competent Authority shall have all the powers of a Civil Court while trying a suit under the
Code of Civil Procedure, 1908, in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him
on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) such other matters as may be prescribed.
(3) The Competent Authority shall be deemed to be a Civil Court for the purpose of
section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, and everyproceeding before the Competent Authority shall be deemed to be a judicial proceedingwithin the meaning of sections 193 and 228 and for the purposes of section 196 of the IndianPenal Code.
(4) Subject to the provisions of section 8, no obligation to maintain secrecy or other
restriction upon the disclosure of information obtained by or furnished to the Governmentor any public servant, whether imposed by the Official Secrets Act, 1923 or any other law forthe time being in force, shall be claimed by any public servant in the proceedings before theCompetent Authority or any person or agency authorised by it in writing and the GovernmentMatters notto be inquiredby Compe-tentAuthority.
37 of 1850.
60 of 1952.
Powers of CompetentAuthority.
5 of 1908.
2 of 1974.
45 of 1860.
19 of 1923.
8 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II
or any public servant shall not be entitled in relation to any such inquiry, to any such
privilege in respect of the production of documents or the giving of evidence as is allowedby any enactment or by any rules made thereunder:
Provided that the Competent Authority, while exercising such powers of the Civil
Court, shall take steps as necessary to ensure that the identity of the person making complainthas not been revealed or compromised.
8. (1) No person shall be required or be authorised by virtue of provisions contained in
this Act to furnish any such information or answer any such question or produce any documentor information or render any other assistance in the inquiry under this Act if such question ordocument or information is likely to prejudicially affect the interest of the sovereignty andintegrity of India, the security of the State, friendly relations with foreign State, public order,decency or morality or in relation to contempt of court, defamation or incitement to an offence,
(a) as might involve the disclosure of proceedings of the Cabinet of the Union
Government or any Committee of the Cabinet;
(b) as might involve the disclosure of proceedings of the Cabinet of the State
Government or any Committee of that Cabinet,
and for the purpose of this sub-section, a certificate issued by the Secretary to the
Government of India or the Secretary to the State Government, as the case may be, or,any authority so authorised by the Central or State Government certifying that anyinformation, answer or portion of a document is of the nature specified in clause (a) or
clause (b), shall be binding and conclusive.
(2) Subject to the provisions of sub-section (1), no person shall be compelled for the
purposes of inquiry under this Act to give any evidence or produce any document which hecould not be compelled to give or produce in proceedings before a court.
9. (1) Every public authority shall, for the purposes of dealing or inquiry into the
disclosures sent to it under sub-section (3) of section 5, create an appropriate machinery for
the said purpose.
(2) The Competent Authority shall exercise superintendence over the working of
machinery created under sub-section (1) for the purposes of dealing or inquiry into the
disclosures and give such directions for its proper functioning, from time to time, as it mayconsider necessary.
10. For the purpose of making discreet inquiry or obtaining information from the
organisation concerned, the Competent Authority shall be authorised to take assistance ofthe Delhi Special Police Establishment or the police authorities, or any other authority asmay be considered necessary, to render all assistance to complete the inquiry within theprescribed time pursuant to the disclosure received by the Competent Authority.
CHAPTER V
P
ROTECTION TO THE PERSONS MAKING DISCLOSURE
11. (1) The Central Government shall ensure that no person or a public servant who
has made a disclosure under this Act is victimised by initiation of any proceedings or otherwisemerely on the ground that such person or a public servant had made a disclosure or renderedassistance in inquiry under this Act.
(2) If any person is being victimised or likely to be victimised on the ground that he
had filed a complaint or made disclosure or rendered assistance in inquiry under this Act,he may file an application before the Competent Authority seeking redress in the matter, andsuch authority shall take such action, as deemed fit and may give suitable directions to theconcerned public servant or the public authority, as the case may be, to protect such personfrom being victimised or avoid his victimisation:Certainmattersexempt fromdisclosure.
Superinten-
dence ofCompetentAuthorityoverappropriatemachinery.
Competent
Authority totakeassistance ofpoliceauthorities,etc., in certaincases.
Safeguards
againstvictimisation.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 9
Provided that the Competent Authority shall, before giving any such direction to the
public authority or public servant, give an opportunity of hearing to the complainant and the
public authority or public servant, as the case may be:
Provided further that in any such hearing, the burden of proof that the alleged action
on the part of the public authority is not victimisation, shall lie on the public authority.
(3) Every direction given under sub-section (2) by the Competent Authority shall be
binding upon the public servant or the public authority against whom the allegation of
victimisation has been proved.
(4) Notwithstanding anything contained in any other law for the time being in force,
the power to give directions under sub-section ( 2), in relation to a public servant, shall
include the power to direct the restoration of the public servant making the disclosure, to the
status quo ante .
(5) Any person who wilfully does not comply with the direction of the Competent
Authority under sub-section ( 2), shall be liable to a penalty which may extend up to thirty
thousand rupees.
12. If the Competent Authority either on the application of the complainant, or witnesses,
or on the basis of information gathered, is of the opinion that either the complainant or
public servant or the witnesses or any person rendering assistance for inquiry under this Act
need protection, the Competent Authority shall issue appropriate directions to the concerned
Government authorities (including police) which shall take necessary steps, through its
agencies, to protect such complainant or public servant or persons concerned.
13. The Competent Authority shall, notwithstanding any law for the time being in
force, conceal, as required under this Act, the identity of the complainant and the documents
or information furnished by him, for the purposes of enquiry under this Act, unless so decided
otherwise by the Competent Authority itself or it became necessary to reveal or produce the
same by virtue of the order of the court.
14. The Competent Authority, at any time after the making of disclosure by the
complainant or public servant, if it is of the opinion that any corrupt practice required to be
stopped during the continuation of any inquiry for the said purpose may pass such interim
orders as it may deem fit, to prevent the immediate stoppage of such practice.
CHAPTER VI
OFFENCES AND PENALTIES
15. Where the Competent Authority, at the time of examining the report or explanations
or report referred to in sub-section ( 3) of section 5 on the complaint submitted by organisation
or official concerned, is of the opinion that the organisation or official concerned, without
any reasonable cause, has not furnished the report within the specified time or mala fidely
refused to submit the report or knowingly given incomplete, incorrect or misleading or false
report or destroyed record or information which was the subject of the disclosure or obstructed
in any manner in furnishing the report, it shall impose
(a) where the organisation or official concerned, without any reasonable cause,
has not furnished the report within the specified time or mala fidely refused to submit
the report, a penalty which may extend to two hundred fifty rupees for each day till
report is furnished, so, however, the total amount of such penalty shall not exceed fifty
thousand rupees;
(b) where the organisation or official concerned, has knowingly given incomplete,
incorrect or misleading or false report or destroyed record or information which was
the subject of the disclosure or obstructed in any manner the furnishing of the report,
a penalty which may extend to fifty thousand rupees:
Provided that no penalty shall be imposed against any person unless he has been
given an opportunity of being heard.
16. Any person, who negligently or mala fidely reveals the identity of a complainant
shall, without prejudice to the other provisions of this Act, be punishable with imprisonment
for a term which may extend up to three years and also to fine which may extend up to fifty
thousand rupees.Protection ofwitnesses andother persons.
Protection of
identity ofcomplainant.
Penalty for
furnishingincomplete orincorrect ormisleadingcomments orexplanation orreport.Power to
pass interimorders.
Penalty for
revealingidentity ofcomplainant.
10 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II
17. Any person who makes any disclosure mala fidely and knowingly that it was
incorrect or false or misleading shall be punishable with imprisonment for a term which mayextend up to two years and also to fine which may extend up to thirty thousand rupees.
18. (1) Where an offence under this Act has been committed by any Department of
Government, the Head of the Department shall be deemed to be guilty of the offence andshall be liable to be proceeded against and punished accordingly unless he proves that theoffence was committed without his knowledge or that he exercised all due diligence to preventthe commission of such offence.
(2) Notwithstanding anything contained in sub-section ( 1), where an offence under
this Act has been committed by a Department of Government and it is proved that the offencehas been committed with the consent or connivance of, or is attributable, such officer shallalso be deemed to be guilty of that offence and shall be liable to be proceeded against andpunished accordingly.
19. (1) Where an offence under this Act has been committed by a company, every
person who at the time the offence was committed was in charge of, and was responsible tothe company for the conduct of the business of the company as well as the company, shall bedeemed to be guilty of the offence and shall be liable to be proceeded against and punishedaccordingly:
Provided that nothing contained in this sub-section shall render any such person liable
to any punishment provided in this Act, if he proves that the offence was committed withouthis knowledge or that he has exercised all due diligence to prevent the commission of suchoffence.
( |
that the offence was committed withouthis knowledge or that he has exercised all due diligence to prevent the commission of suchoffence.
(2) Notwithstanding anything contained in sub-section ( 1), where an offence under
this Act has been committed by a company and it is proved that the offence has been committedwith the consent or connivance of, or is attributable to, any neglect on the part of any director,manager, secretary or other officer of the company, such director, manager, secretary orother officer shall also be deemed to be guilty of the offence and shall be liable to be proceededagainst and punished accordingly.
Explanation. For the purposes of this section,
(a) "company" means any body corporate and includes a firm or other association
of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
20. Any person aggrieved by any order of the Competent Authority relating to
imposition of penalty under section 14 or section 15 or section 16 may prefer an appeal tothe High Court within a period of sixty days from the date of the order appealed against:
Provided that the High Court may entertain the appeal after the expiry of the said
period of sixty days, if it is satisfied that the appellant was prevented by sufficient causefrom preferring the appeal in time.
Explanation. For the purposes of this section, the "High Court" means the High
Court within whose jurisdiction the cause of action arose.
21. No Civil Court shall have jurisdiction in respect of any matter which the Competent
Authority is empowered by or under this Act to determine and no injunction shall be grantedby any court or other authority in respect of any action taken or to be taken in pursuance ofany power conferred by or under this Act.
22. (1) No court shall take cognizance of any offence punishable under this Act or the
rules or regulations made thereunder, save on a complaint made by the Competent Authorityor any officer or person authorised by it.Punishmentfor false orfrivolousdisclosure.
Punishment
to Head ofDepartmentin certaincases.
Offences by
companies.
Appeal to
High Court.
Bar of
jurisdiction.
Court to take
cognizance.
SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 11
(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial
Magistrate shall try any offence punishable under this Act.
CHAPTER VII
MISCELLANEOUS
23. (1) The Competent Authority shall prepare a consolidated annual report of the
performance of its activities in such form as may be prescribed and forward it to the CentralGovernment or State Government, as the case may be.
(2) On receipt of the annual report under sub-section ( 1), the Central Government or
State Government, as the case may be, shall cause a copy thereof to be laid before eachHouse of Parliament, or the State Legislature, as the case may be:
Provided that where any other law for the time being in force provides preparing of
such annual report by the Competent Authority, then the said annual report shall contain aseparate part on the performance of activities under this Act by the Competent Authority.
24. No suit, prosecution or other legal proceedings shall lie against the Competent
Authority or against any officer, employees, agency or person acting on its behalf, in respectof anything which is in good faith done or intended to be done under this Act.
25. (1) The Central Government may, by notification in the official Gazette, make
rules for the purpose of carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:
(a) the procedure for disclosure by writing or appropriate electronic means under
sub-section ( 4) of section 4;
(b) the manner in which and the time within which the discreet inquiry shall be
made by the Competent Authority under sub-section ( 2) of section 5;
(c) the additional matter in respect of which the Competent Authority may exercise
the powers of a Civil Court under clause ( f) of sub-section ( 2) of section 7;
(d) the form of annual report under sub-section ( 1) of section 23;
(e) any other matter which is required to be, or may be, prescribed.
26. The State Government may, by notification in the Official Gazette, make rules for
the purpose of carrying out the provisions of this Act.
27. The Competent Authority may, with the previous approval of the Central
Government or the State Government, as the case may be, by notification in the OfficialGazette, make regulations not inconsistent with the provisions of the Act and the rules madethereunder to provide for all matters for which provision is expedient for the purposes ofgiving effect to the provisions of this Act.
28. Every notification issued and every rule made by the Central Government and
every regulation made by the Competent Authority under this Act shall be laid, as soon asmay be after it is issued or made, before each House of Parliament, while it is in session, fora total period of thirty days which may be comprised in one session or in two or moresuccessive sessions, and if, before the expiry of the session immediately following the sessionor the successive sessions aforesaid, both Houses agree in making any modification in thenotification or the rule or the regulation, or both Houses agree that the notification or therule or the regulation should not be made, the notification or the rule or the regulation shallthereafter have effect only in such modified form or be of no effect, as the case may be; so,however, that any such modification or annulment shall be without prejudice to the validityof anything previously done under that notification or rule or regulation.Report ondisclosures.
Protection of
action taken ingood faith.
Power of
CentralGovernmentto make rules.
Power of
StateGovernmentto makerules.Power tomakeregulations.
Notification
and rules tobe laid beforeParliament.
29. Every notification issued by a State Government and every rule made by a State
Government and every regulation made by the Competent Authority under this Act shall belaid, as soon as may be after it is issued, before the State Legislature.
30. (1) If any difficulty arises in giving effect to the provisions of the Act, the Central
Government may, by order, not inconsistent with the provisions of this Act, remove thedifficulty:
Provided that no such order shall be made after the expiry of a period of three years
from the date of the commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be
laid before each House of Parliament.
31. (1) The Government of India, Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training) Resolution No. 371/12/2002-AVD-IIIdated the 21st April, 2004 as amended vide Resolution of even number, dated the 29th April,
2004 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said
Resolution be deemed to have been done or taken under this Act.
DR. SANJAY SINGH,
Additional Secretary to the Govt. of India.
CORRIGENDUM
In the Pension Fund Regulatory and Development Authority Act, 2013 (23 of 2013), as
published in a Gazette of India, Extraordinary, Part II, Session 1, issue No. 33, dated the19th September, 2013, at page 3, line 35, for preson, read person.Notification
issued andrules made byStateGovernment tobe laid beforeStateLegislature.
Power to
removedifficulties.
Repeal and
savings.
GMGIPMRND228GI(S3)12-05-2014.
PRINTED BY THE GENERAL MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI
AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI2014.12 THE GAZETTE OF INDIA EXTRAORDINARY [P ART II SEC. 1] |
THE ACQUISITION OF CERTAIN AREA AT AYODHYA ACT, 1993
ACT NO. 33 OF 1993
[3rd April , 1993 .]
An Act to provide for the acquisition of certain area at Ayodhya and for matters connected
therewith or incidental thereto.
WHEREAS there has been a long -standing dispute relating to the structure (including the premises of
the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi -Babri
Masjid, situated in village Kot Ramchandra in Ayodhya, in Pargana Ha veli Avadh, in tehsil Faizabad
Sadar, in the district of Faizabad of the State of Uttar Pradesh;
AND WHEREAS the said dispute has affected the maintenance of public order and harmony between
different communities in the country;
AND WHEREAS it is necessary to maintain public order and to promote communal harmony and the
spirit of common brotherhood amongst the people of India;
AND WHEREAS with a view to achieving the aforesaid objectives, it is necessary to acquire certain
areas in Ayodhya;
BE it enacted by Parliament in the Forty -fourth Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1. Short title and commencement .(1) This Act may be called the Acquisition of Certain Area at
Ayodhya Act, 1993.
(2) It shall be deemed to have come into force on the 7th day of January, 1993.
2. Definitions .In this Act, unless the context otherwise requires,
(a) area means the area (including all the buildings, structures or other properties comprised
therein) specified in the Schedule;
(b) authorised person means a person or body of persons or trustees of any trust authorised by
the Central Government under section 7;
(c) Claims Commissioner means the Claims Commissioner appointed under sub -section (2) of
section 8;
(d) prescribed means prescribed by rules made under this Act.
CHAPTER II
ACQUISITION OF THE AREA IN AYODHYA
3. Acquisition of ri ghts in respect of certain area .On and from the commencement of this Act,
the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest
in, the Central Government.
4. General effect of vesting .(1) The area shall be deemed to include all assets, rights, leaseholds,
powers, authority and privileges and all property, movable and immovable, including lands, buildings,
structures, shops of whatever nature or other properties and all other rights and interests in, or arising out
of, such properties as were immediately before the commencement of this Act in the ownership,
possession, power or control of a ny person or the State Government of Uttar Pradesh, as the case may be,
and all registers, maps, plans, drawings and other documents of whatever nature relating thereto.
(2) All properties aforesaid which have vested in the Central Government under section 3 shall, by
force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all
other encumbrances affecting them and any attachment, injunction, decree or order of any court or
3
tribunal or other authority restricting the use of such properties in any manner or appointing any receiver
in respect of the whole or any part of such properties shall cease to have any effect.
(3) If, on the commencement of this Act, any suit, appeal or other proceeding in respect of the righ t,
title and interest relating to any property which has vested in the Central Government under section 3, is
pending before any court, tribunal or other authority, the same shall abate.
5. Duty of person or State Government in charge of the management of the area to deliver all
assets, etc .(1) The Central Government may take all necessary steps to secure possession of the area
which is vested in that Government under section 3.
(2) On the vesting of the area in the Central Government under section 3, the person or State
Government of Uttar Pradesh, as the case may be, in charge of the management of the area immediately
before such vesting shall be bound to deliver to the Central Government or the authorised person, all
assets, registers and other documents in their custody relating to such vesting or where it is not practicable
to deliver such registers or documents, the copies of such registers or documents authenticated in the
prescribed manner.
6. Power of Central Government to direct vesting of the area in another authority or body or
trust .(1) Notwithstanding anything contained in sections 3, 4, 5 and 7, the Central Government may, if
it is satisfied that any authority or other body, or trustees of any trust, set up on or after the
commencement of this Act is or are willing to comply with such terms and conditions as that Government
may think fit to impose, direct by notification in the Official Gazette, that the right, title and interest or
any of them in relation to the area or any part thereof, inste ad of continuing to vest in the Central
Government, vest in that authority or body or trustees of that trust either on the date of the notification or
on such later date as may be specified in the notification.
(2) When any right, title and interest in rel ation to the area or part thereof vest in the authority or body
or trustees referred to in sub -section (1), such rights of the Central Government in relation to such area or
part thereof, shall, on and from the date of such vesting, be deemed to have becom e the rights of that
authority or body or trustees of that trust.
(3) The provisions of sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such
authority or body or trustees as they apply in relation to the Central Government and for th is purpose
references therein to the Central Government shall be construed as references to such authority or body or
trustees.
CHAPTER III
MANAGEMENT AND ADMINISTRATION OF PROPERTY
7. Manag ement of property by Government .(1) Notwithstanding anything contained in any
contract or instrument or order of any court, tribunal or other authority to the contrary, on and from the
commencement of this Act, the property vested in the Central Government under section 3 shall be
managed by the Central Government o r by a person or body of persons or trustees of any trust authorised
by that Government in this behalf.
(2) In managing the property vested in the Central Government under section 3, the Central
Government or the authorised person shall ensure that the position existing before the commencement of
this Act in the area on which the structure (including the premises of the inner and outer courtyards of
such structure), commonly known as the Ram Janma Bhumi -Babri Masjid, stood in village Kot
Ramchandra in Ayodh ya, in Pargana Haveli Avadh, in tehsil Faizabad Sadar, in the district of Faizabad of
the State of Uttar Pradesh is maintained.
CHAPTER IV
MISCELLANEOUS
8. Payment of amount .(1) The owner of any land, building, structure or other property comprised
in the area shall be given by the Central Government, for the transfer to and vesting in that Government
under section 3 of that land, building, structure or other property, in cash an amount equivalent to the
market value of the land, building, structure or other property.
4
(2) The Central Government shall, for the purpose of deciding the claim of the owner or any person
having a claim against the owner under sub -section (1), by notification in the Official Gazette, appoint a
Claims Commissioner.
(3) The Claim s Commissioner shall regulate his own procedure for receiving and deciding the claims.
(4) The owner or any person having a claim against the owner may make a claim to the Claims
Commissioner within a period of ninety days from the date of commencement of this Act:
Provided that if the Claims Commissioner is satisfied that the claimant was prevented by sufficient
cause from preferring the claim within the said period of ninety days, the Claims Commis sioner may
entertain the claim within a further period of ninety days and not thereafter.
9. Act to override all other enactm ents.The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for the time being in force or
any instrument having effect by virtue of any law other than this Act or any decree or order of any court,
tribunal or other authority.
10. Penalties .Any person who is in charge of the management of the area and fails to deliver to the
Central Government or the authorised person any ass et, register or other document in his custody relating
to such area or, as the case may be, authenticated copies of such register or document, shall be punishable
with imprisonment for a term which may extend to three years or with fine which may extend to ten
thousand rupees or with both.
11. Protectio n of action taken in good faith .No suit, prosecution or other legal proceeding shall
lie against the Central Government or the authorised person or any of the officers or other employees of
that Government o r the authorised person for anything which is in good faith done or intended to be done
under this Act.
12. Power to make rules .(1) The Central Government may, by notification in the Official Gazette,
make rules to carry out the provisions of this Act.
(2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it
is made, before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity of anything previously done
under that rule.
13. Repeal and sa ving.(1) Subject to the provisions of sub -section ( 2), the Acquisition of Certain
Area at Ayodhya Ordinance, 1993 ( Ord. 8 of 1993), is hereby repealed.
(2) Notwithstanding anything c ontained in the said Ordinance,
(a) the right, title and interest in relation to plot No. 242 situated in village Kot Ramchandra
specified against Sl. No. 1 of the Schedule to the said Ordinance shall be deemed never to have been
transferred to, and vested in, the Central Government;
(b) any suit, appeal or other proceeding in respect of the right, title and interest relating to the said
plot No. 242, pending before any court, tribunal or other authority, shall be deemed never to have
abated and such suit, appeal or other proceeding (including the orders or interim orders of any court
thereon) shall be deemed to have been restored to the position existing immediately before the
commencement of the said Ordinance;
(c) any other action taken or thing done under that Ordinance in relation to the said plot No. 242
shall be deemed never to have been taken or done.
(3) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be
deemed to have been done or taken under the corresponding provisions of this Act.
5
THE SCHEDULE
[See section 2 (a) ]
DESCRIPTION OF THE AREA
Sl.
No.
Name of Village /
Pargana/Tehsil/
District/State
Revenue (Khasra)
Plot Nos.
Area to be acquired
Bigha Biswa Biswansi
(1) (2) (3) (4) (5) (6)
1. Village Kot Ram -
chandra, Pargana
Haveli Avadh, tehsil
Faizabad Sadar, District
Faizabad, Uttar Pradesh. 143
144
145 0
0
0 9
7
8 0
0
0
146 1 6 7
147 5 8 0
158 0 4 0
159 0 13 8
160 5 13 0
161 0 18 0
162 1 8 7
168 1 2 0
169 1 7 0
170 0 8 0
171 1 7 0
172 2 7 0
173 0 18 0
174 0 3 0
175 0 6 0
176 1 2 0
177 0 16 0
178 0 10 0
179 0 14 0
180 0 14 5
181 0 13 10
182 0 7 5
183
184 0
0 7
6 5
9
6
(1) (2) (3) (4) (5) (6)
185 0 7 5
186 0 6 10
187 0 7 0
188 0 18 15
189 0 14 0
190 0 4 0
191 4 6 14
192 0 7 0
193 0 12 0
194 4 19 0
195 0 5 0
196 0 5 0
197 0 5 0
198 0 3 0
199 0 12 0
200 2 0 0
204 0 3 0
(part)
Bounded by plot
No. 222 on South,
Plot No. 205 on
West and plot No.
231 on East.
205 0 10 0
206 0 5 0
207 0 19 0
208 0 5 0
209 1 11 0
210 0 8 0
211 0 13 0
212 0 4 |
10 0 8 0
211 0 13 0
212 0 4 14
213 1 19 15
214 0 6 0
215 0 2 5
216 0 6 0
217 0 11 0
7
(1) (2) (3) (4) (5) (6)
218 0 3 0
219 1 6 5
220 0 12 0
221 1 2 15
222 0 5 7
223 5 6 0
224 1 0 0
225 0 11 15
226 0 10 5
227 0 7 5
228 0 5 0
229 0 11 10
230 0 2 10
231 1 1 10
232 0 2 0
233 0 2 0
234 1 12 0
235 0 10 0
236 0 4 0
237 0 1 0
238 1 6 0
239 2 1 0
244 0 14 10
(part)
Bounded on the
North partly by plot
No. 240 and partly by
plot No. 243, on the
West partly by plot
No. 239 and partly by
plot No. 240 and on
the South by Plot No.
246.
246
(part) 0 18 0
Bounded by plot No.
238 on the South,
plot No. 239 on the
West and plot No.
244 on the North.
75 14 7
8
(1) (2) (3) (4) (5) (6)
2. Village Avadhkhas,
Pargana Haveli Avadh,
tehsil Faizabad Sadar,
District Faizabad, Uttar
Pradesh . 1104
1105
1106
1107 0
0
0
0 11
7
6
14 17
14
2
14
1108 0 4 3
1109 0 3 0
1110 0 4 5
1111 0 12 15
1112 0 5 8
1113 0 5 10
1114 0 0 10
1115 0 1 10
1116 0 3 10
1117 0 9 12
1118 1 1 17
1119 0 7 14
1120 0 13 15
1121 0 3 0
1122 0 8 0
1123 0 8 0
1124 0 9 10
1125 0 6 6
1126 0 4 15
1127 0 11 4
1128 1 12 6
1129 0 5 9
1130 0 5 0
1132 1 3 5
1133 0 4 15
1134 0 4 0
1135 0 1 0
1136 0 9 0
1143 0 4 5
1144 0 5 15
1145 0 0 15
1146 0 3 0
1147 0 5 0
1148
1149
1166 0
0
0
7
6
6 15
10
0
9
(1) (2) (3) (4) (5) (6)
(part)
Bounded by plot No.
1203 on East, plot No.
1151 on West and plot
No. 1167 on South.
1206 0 7 0
1210 0 1 5
1211 0 2 5
1212 0 11 5
1213 0 2 10
1214 0 7 0
1215 0 0 15
1216 0 0 15
1217 0 3 5
1218 0 4 10
1219 0 5 0
1220 0 7 5
1221 0 11 10
1222 0 4 0
1223 0 1 15
1225 0 12 15
1226 0 8 10
1227 0 7 15
1228 0 4 15
1229 0 1 0
1230 0 13 5
1231 0 7 5
1232 0 1 6
1233 0 4 15
1234 0 7 5
1235 0 1 6
1236 0 2 5
1237 0 9 10
1238 0 1 18
1239 0 1 10
1240 0 8 15
1241 0 1 10
1242 0 1 15
1243 0 2 0
1247 0 5 0
10
(1) (2) (3) (4) (5) (6)
(part)
Bounded by plot
No. 1248 on North ,
Plot No. 1246 on
South and Plot No.
1291 on East/Road.
1248 1 7 10
1249 0 0 13
1250 0 7 7
1251 0 8 0
1252 0 9 0
1253 0 12 10
1254 0 4 0
1255 0 2 0
1256 0 2 0
1257 0 2 10
1258 0 2 5
1259 0 1 10
27 00 11
3. Village Jalwanpur,
Pargana Haveli Avadh, tehsil
Faizabad Sadar, District
Faizabad, Uttar Pradesh.
1
0
3
5
2 1 1 0
3 0 0 5
4 1 9 15
5 0 0 10
6 0 19 0
7 0 2 15
8 0 4 15
9 0 10 10
10 0 0 10
11 0 3 0
12 0 14 5
13 0 10 0
14 0 0 10
11
(1) (2) (3) (4) (5) (6)
15 0 15 15
16 0 8 15
17 0 3 15
18 0 6 5
19 0 7 5
27 1 6 0
9 7 15
|
4893 GI/2015 (1) REGD. NO. D. L.-33004/99
EXTRAORDINARY
PART II Section 3 Sub-section (ii)
PUBLISHED BY AUTHORITY
NEW DELHI, MONDAY, NOVEMBER 23, 2015/AGRA HAYANA 2, 1937
2 THE GAZETTE OF INDIA : EXTRAORDINARY
[PART II SEC. 3(ii)]
MINISTRY OF MINORITY AFFAIRS
NOTIFICATION
New Delhi, the 23rd November, 2015
S.O. 3151(E). In exercise of the powers conferred by sub-sections (1) and (2) of section 9 of the
Waqf Act, 1995 (43 of 1995) read with rule 4 of the Central Waqf Council Rules, 1998 , the Central
Government hereby establishes the Central Waqf Coun cil and appoints thereto the following Chairperso n
and members, for a period of three years, from the date of publication of this notification in the Off icial
Gazette, namely:
Union Minister in charge of Waqfs - Chairperson;
Members appointed under sub-clause (i) of clause (b ) of sub-section (2) of Section 9 -
1. Shri Mohd. Irfan Ahmed,
113-B, Adchini, Sri Aurobindo Marg,
New Delhi 110017;
2. Shri Abbas Ali Bohra,
1109/3, 47 th Cross, 5 th Block,
Jayanagar, Bangalore 560078;
3. Shri Rais Khan Pathan,
28, Ajit Residency,Ajit Mill Compound,
Rakhial, Ahmedabad;
Members appointed under sub-clause (ii) of clause (b) of sub-section (2) of Section 9 -
4. Shri Mohd. Ekramullah Siddiqui,
Village & Post Office Bozurga, PS Kotwali,
District Gazipur, Uttar Pradesh;
5. Dr. Darakshan Andrabi,
433, First Floor,
Opposite Govt. Girls Hr. Sec. School,
Shastri Nagar, Jammu 180084;
6. Shri Mohammad Hamid,
406, Sewa Sadan Apartments,
Gandhi Bagh, CA Road,
Nagpur-440018;
7. Dr. Nizamuddin Mohsin,
House No. 1, Vishweshwar Nagar,
Hubli, Karnataka 580032;
Members appointed under sub-clause (iii) of clause (b) of sub-section (2) of Section 9 -
8. Shri Mohd. Ali Khan,
Member of Parliament (Rajya Sabha),
301, Brahmputra, B.D. Marg,
New Delhi 110011;
6 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II SEC. 3(ii)]
9. Shri Chaudhary Mehboob Ali Kaiser,
Member of Parliament (Lok Sabha),
Ashok Hotel, Chanakyapuri,
New Delhi 110021;
10. Shri Muzaffar Hussain Baig,
Member of Parliament (Lok Sabha),
50, Ashoka Road,
New Delhi 110001;
Members appointed under sub-clause (iv) of clause (b) of sub-section (2) of Section 9 -
11. Shri Mohd. Salim Ashrafi,
Chairman,
Chhattisgarh State Waqf Board,
C 12, Sector 3,
Devendra Nagar, Raipur (Chhattisgarh);
12. Shri Shoukat Muhammad Khan,
Chairman,
Madhya Pradesh Waqf Board,
Taj Campus, Near Tajul Masajid,
Behind Royal Market,
Bhopal 462001 (Madhya Pradesh);
13. Shri A.I. Saiyed,
Chairman,
Gujarat State Waqf Board,
Block No.8, Ground Floor,
Dr. Jivraj Mehta Bhavan,
Gandhinagar 382020 (Gujarat);
Members appointed under sub-clause (v) of clause (b ) of sub-section (2) of Section 9 -
14. Justice (Retd.) Mohd. Shamim,
A-02, Mod Apartments,
Vasundhara Enclave,
Near Dharamshila Cancer Hospital
New Delhi;
15. Justice (Retd.) Barkat Ali Zaidi,
Flat No. A 305,
Bulland Heights Crossing Republic,
National Highway 24,
Ghaziabad, Uttar Pradesh;
Member appointed under sub-clause (vi) of clause (b ) of sub-section (2) of Section 9 -
16. Shri Nausad T.O.
Thazhatheli, Venmoney,
Post Office Chendannor,
Alappuzha,
Kerala 689509;
Hkkx II [k.M 3 (ii) Hkkjr dk jkti=k % vlk/kj.k 7
Members appointed under sub-clause (vii) of clause (b) of sub-section (2) of Section 9
17. Vacant;
Members appointed under sub-clause (viii) of clause (b) of sub-section (2) of Section 9 -
18. Shri Dewan Syed Zainul Abedin Ali Khan,
Haveli Dewan Saheb Daragah Shareef,
Ajmer (Rajasthan);
19. Advocate Syed Ezaz Abbas,
F.No.505/B, Evershine Meadows,
Raje Shahaji Nagar,
Mahim (E), Mumbai 17 (Maharashtra);
20. Mrs. S. Munawari Begum,
1/320, Pudiya Panjaliyur,
Peddethalapalli Post,
Krishnagiri 635002 (Tamil Nadu);
[F. No. 8/1/2015-Waqf]
RAKESH MOHAN, Jt. Secy.
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, De lhi-110054. |
CHAPTER VIII
OFFENCES, PENALTIES AND ADJUDICATION
SECTIONS
59. Punishment for nonregistration under section 3.
60. Penalty for contravention of section 4.
61. Penalty for contravention of other provisions of this Act.
62. Penalty for nonregist ration and contravention under sections 9 and 10.
63. Penalty for failure to comply with orders of Authority by promoter.
64. Penalty for failure to comply with orders of Appellate Tribunal by promoter.
65. Penalty for failure to comply with orders of Authority by real estate agent.
66. Penalty for failure to comply with orders of Appellate Tribunal by real estate agent.
67. Penalty for failure to comply with orders of Authority by allottee .
68. Penalty for failure to comply with orders of Appellate Tribunal by allottee .
69. Offenc es by companies .
70. Compounding of offences .
71. Power to adjudicate .
72. Factors to be taken into account by the adjudicating officer .
CHAPTER IX
FINANCE, ACCOUNTS, AUDITS AND REPORTS
73. Grants and loans by Central Government .
74. Grants and loans by State Government .
75. Constitution of Fund .
76. Crediting sums realised by way of penalties to Consolidated Fund of India or State account .
77. Budget, accounts and audit .
78. Annual report .
CHAPTER X
MISCELLANEOUS
79. Bar of jurisdiction .
80. Cognizance of offences .
81. Delegation .
82. Power of appropriate Government to supersede Authority .
83. Powers of appropriate Government to issue directions to Authority and obtain reports and returns .
84. Power of appropriate Government to make rules .
85. Power to make regulations .
86. Laying of rules .
87. Members, etc., to be public servants .
88. Application of other laws not barred .
89. Act to have overriding effect .
90. Protection of action taken in good faith .
91. Power to remove difficulties .
92. Repeal.
4
THE REAL ESTATE (R EGULATION AND DEVELOPMENT) ACT, 2016
ACT NO. 16 OF 2016
[25th March , 2016.]
An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real
estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real
estate project, in an efficient and transparent manner and to protect the interest of consumers in
the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and
also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of
the Real Estate Regulatory Authority and the adjudicating officer and for matters connected
therewith or incidental thereto.
BE it enacted by Parliament in the Sixty -seventh Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1. Short title, extent and commence ment .(1) This Act may be called the Real Estate (Regulat ion
and Development) Act, 2016.
(2) It extends to the whole of India except the State of Jammu and Kashmir *.
(3) It shall come into force on such date1 as the Central Government may, by notification in the
Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference
in any such provision to the commencement of this Act shall be construed as a reference to the coming
into force of that provision.
2. Definitions .In this Act, unless the context otherwise requires,
(a) adjudicating officer means the adjudicating officer appointed under sub-section ( 1) of
section 71;
(b) advertisement means any document described or issued as advertisement through any
medium and includes any notice, circular or other documents or publicity in any form, informing
persons about a real estate project, or offering for sale of a plot, building or apartment or inviting
persons to purchase in any manner such plot, building or apartment or to make advances or deposits
for such purposes;
(c) agreement for sale means an agreement entered into between the promoter and the allottee;
(d) allottee in relation to a real estate project, means the person to whom a plot, apartment or
building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise
transferred by the promoter, and includes the person who subsequently acquires the sa id allotment
through sale, transfer or otherwise but does not include a person to whom such plot, apartment or
building, as the case may be, is given on rent;
(e) apartment whether called block, chamber, dwelling unit, flat, office, showroom, shop,
godow n, premises, suit, tenement, unit or by any other name, means a separate and self -contained part
of any immovable property, including one or more rooms or enclosed spaces, located on one or more
floors or any part thereof, in a building or on a plot of lan d, used or intended to be used for any
residential or commercial use such as residence, office, shop, showroom or godown or for carrying on
any business, occupation, profession or trade, or for any other type of use ancillary to the purpose
specified;
(f) Appellate Tribunal means the Real Estate Appellate Tribunal established under section 43;
1. 1st May, 2016, vide notification No. S.O. 1544(E), (Except ss. 3 to 19, 40, 59 to 70, 79 & 80) dated 26th April, 2016, see
Gazette of India, Extraordinary, Part II, sec. 3( ii).
*. Vide notification No. S.O. 3912(E), dated 30th October, 2019, this Act is made applicable to the Union territory of Jammu and
Kashmir and the Union territory of Ladakh.
5
(g) appropriate Government means in r espect of matters relating to,
(i) the Union territory without Legislature, the Central Government;
(ii) the Union territory of 1[Puducherry and Union territory of Jammu and Kashmir] , the
Union territory Government;
(iii) the Union territory of Delhi, the Central Ministry of Urban Development;
(iv) the State, the State Government;
(h) architect means a person registered as an architect under the provisions of the Architects
Act, 1972 (20 of 1972) ;
(i) Authority means the Real Estate Regulatory Authority established under sub -section ( 1) of
section 20;
(j) building includes any structure or e rection or part of a structure or erection which is intended
to be used for residential, commercial or for the purpose of any business, occupation, profession or
trade, or for any other related purposes;
(k) carpet area means the net usable floor area of an apartment, excluding the area covered by
the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open
terrace area, but includes the area covered by the internal partition walls of the apartment.
Explanation . For the purpose of this clause, the expression exclusive balcony or verandah
area means the area of the balcony or verandah, as the case may be, which is appurtenant to the net
usable floor area of an apartment, meant for the exclusive use of the allott ee; and exclusive open
terrace area means the area of open terrace which is appurtenant to the net usable floor area of an
apartment, meant for the exclusive use of the allottee;
(l) Chairperson means the Chairperson of the Real Estate Regulatory Authority appointed under
section 21;
(m) commencement certificate means the commencement certificate or the building permit or
the construction permit, by whatever name called issued by the competent authority to allow or
permit the promoter to begin development works on an immovable property, as per the sanctioned
plan;
(n) common areas mean
(i) the entire land for the real estate project or where the project is developed in phases and
registration under this Act is sought for a phase, the entire land for that phase;
(ii) the stair cases, lifts, staircase and lift lobbies, fir e escapes, and common entrances and
exits of buildings;
(iii) the common basements, terraces, parks, play areas, open parking areas and common
storage spaces;
(iv) the premises for the lodging of persons employed for the management of the property
including accommodation for watch and ward staffs or for the lodging of community service
personnel;
(v) installations of central ser vices such as electricity, gas, water and sanitation,
air-conditioning and incinerating, system for water con servation and renewable energy;
(vi) the water tanks, sumps, motors, fans, compressors, ducts and all apparatus connected
with installations for c ommon use;
(vii) all community and commercial facilities as provi ded in the real estate project;
(viii) all other portion of the project necessary or convenient for its maintenance, s afety, etc.,
and in common use;
1. Sub s. by the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, vide notification No. S.O.
1123 (E) dated (18-3-2020).
6
(o) company means a company incorporated and registered under the Com panies Act, 2013
(18 of 2013) and includes,
(i) a corporation established by or unde r any Central Act or State Act;
(ii) a development authority or any public authority established by the Government in this
behalf under any law for the time being in force;
(p) competent authority means the local authority or any authority created or established under
any law for the time being in force by the appropriate Government which exercises authori ty over
land under its jurisdiction, and has powers to give permission for development of such immovable
property;
(q) completion certificate means the completion certificate, or such other certificate, by
whatever name called, issued by the competent au thority certifying that the real estate project has
been developed according to the sanctioned plan, layout plan and specifications, as approved by the
competent authority under the local laws;
(r) day means the working day, in the concerned State or Uni on territory, as the case may be,
notified by the appropriate Government from time to time;
(s) development with its grammatical variations and cognate expressions, means carrying out
the development of immovable property, engineering or other operations in, on, over or under the
land or the making of any material change in any immovable property or la nd and includes re -
development;
(t) development works means the external development works and internal developme nt works
on immovable property;
(u) engineer means a person who possesses a bachelor s degree or equivalent from an
institution recognised by the All India Council of Technical Education or any University or any
institution recognised under a law or is registered as an engineer under any law fo r the time being in
force;
(v) estimated cost of real estate project means the total cost involved in developing the real
estate project and includes the land cost, taxes, cess, development and other charges;
(w) external development works includes roads and road systems landscaping, water supply,
sewe rage and drainage systems, electricity sup ply transformer, sub -station, solid waste management
and disposal or any other work which may have to be executed in the periphery of, or outside, a
project for its benefit, as may be provided under the local laws;
(x) family includes husband, wife, minor son and unmarried daughte r wholly dependent on a
person;
(y) garage means a place within a project having a roof and walls on three sides for park ing any
vehicle, but does not include an unenclosed or uncovered parking sp ace such as open parking areas;
(z) immovable property includes land, buildings, rights of ways, lights or any other benefit
arising out of land and things attached to the earth o r permanently fastened to anything which is
attached to the earth, but not standing t imber, standing crops or grass;
(za) interest means the rates of interest payable by the promoter or the allottee, as the case may
be.
Explanation .For the purpose of th is clause
(i) the rate of interest chargeable from the allottee by the promoter, in case of default, shall be
equal to the rate of interest which the promoter shall be liable to pay th e allottee, in case of
default;
(ii) the interest payable by the promot er to the allottee shall be from the date the promoter
received the amount or any part thereof till the date the amount or part thereof and interest
7
thereon is refunded, and the interest payable by the allottee to the promoter shall be from the date
the al lottee defaults in payment to the promoter till the date it is paid;
(zb) internal development works means roads, footpaths, water supply, sewers, drains, parks,
tree planting, street lighting, provision for community buildings and for treatment and disposal of
sewage and sullage water, solid waste management and disposal, water conservation, energy
mana gement, fire protection and fire safety requirements, social in frastructure such as education
health and other public amenities or any other work in a project for its be nefit, as per sanctioned
plans;
(zc) local authority means the Municipal Corporation or Municipality or Panchayats or any
other Local Body constituted under any law for the time being in force for providing municipal
services or basic services, as the case may be, in respect of areas under its jurisdiction ;
(zd) Member means the member o f the Real Estate Regulatory Authority appointed under
section 21 and includes the Chai rperson;
(ze) notification means a notification published in the Official Gazette and the expression
notify shall be construed accordingly;
(zf) occupancy certificate means the occupancy certificate, or such other certificate , by
whatever name called, issued by the competent authority permitting occupation of any building, as
provided under local laws, which has provision for civic infrastructure such as wa ter, sanitation and
electricity;
(zg) Person includes,
(i) an individual;
(ii) a Hindu undivided family;
(iii) a company;
(iv) a firm under the Indian Partnership Act, 1932 (9 of 1932) or the Limited Liability
Partnership Act, 2008 (6 of 2009) , as the case may be;
(v) a competent authority;
(vi) an association of persons or a body of individua ls whether incorporated or not;
(vii) a co -operative society registered under any law rela ting to co - |
of individua ls whether incorporated or not;
(vii) a co -operative society registered under any law rela ting to co -operative societies;
(viii) any such other entity as the appro priate Government may, by notifi cation, specify in this
behalf;
(zh) planning area means a planning area or a development area or a local planning area or a
regional development plan area, by whatever name called, or any other area specified as such by t he
appropriate Government or any competent authority and includes any area designated by the
appropriate Government or the competent authority to be a planning area for future planned
development, under the law relating to Town and Country Planning for the time being in force an d as
revised from time to time;
(zi) prescribed means prescribe d by rules made under this Act;
(zj) project means the real estate pro ject as defined in clause (zn);
(zk) promoter means,
(i) a person who constructs or causes to be constructed an independent building or a building
consisting of apartments, or converts an existing building or a part thereof into apartments, for the
purpose of selling all or some of the apartments to other persons and includes his assignees; or
(ii) a person who develops land into a project, whether or not the person also constructs
structures on any of the plots, for the purpose of selling to other persons all or some of the plots in
the said project, whether with or without structures thereon; or
8
(iii) any development authority or any other public b ody in respect of allottees of
(a) buildings or apartments, as the case may be, constructed by such authority or body on
lands owned by them or placed at their disposal by the Gover nment; or
(b) plots owned by such authority or body or placed at their disposal by the Government,
for the purpose of selling all or some of the apartments or plots; or
(iv) an apex State level co -operative housing finance society and a primary co -operative
housing society which constructs apartments or buildings for its Members or in respect of the
allottees of such apartments or buildings; or
(v) any other person who acts himself as a builder, coloniser, contractor, developer, estate
developer or by any other name or claims to be acting as the holder of a power of attorney from
the owner of the land on which the building or apartment is constructed or plot is developed for
sale; or
(vi) such other person who constructs any building or apartment for sale to the gener al public.
Explanation .For the purposes of this clause, where the person who constructs or converts a
building into apartments or develops a plot for sale and the person who sells apartment s or plots
are different person , both of them shall be deemed to be the promoters and shall be jointly liable
as such for the functions and responsibilities specified under this Act or the rules and regulations
made thereunder;
(zl) prospectus means any document described or issued as a prospectus or any notice, circular,
or other document offering for sale o f any real estate project or inviting any person to make advances
or deposits for such purposes;
(zm) real estate agent means any person , who negotiates or acts on behalf of one person in a
transaction of transfer of his plot, apartment or building, as the case may be, in a real estate project,
by way of sale, with another person or transfer of plot, apartment or building, as the case may be, of
any other person to him and receives remuneration or fees or any other charges for his services
whether as a commission or otherwise and includes a person who introduces, through any medium,
prospective buyers and sellers to each other for negotiati on for sale or purchase of plot, apartment or
building, as the case may be, and includes property dealers, brokers, mid dlemen by whatever name
called;
(zn) real estate project means the development of a building or a building consisting of
apartments, or converting an existing building or a part thereof into apartments, or the development of
land into plots or apartment s, as the case may be, for the purpose of selling all or some of the said
apartments or plots or building, as the case may be, and include s the common areas, the development
works, all improvements and structures thereon, and all easement, rights and appurtenances belonging
thereto;
(zo) regulations means the regulations made by the Authority under this Act;
(zp) rule means the rules mad e under this Act by the appropriate Government;
(zq) sanctioned plan means the site plan, building plan, service plan, parking and circulation
plan, landscape plan, layout plan, zoning plan and such other plan and includes structural designs, if
applicab le, permissions such as environment permission and such other permissions, which are
approved by the competent authority prior to start of a real estate project;
(zr) words and expressions used herein but not defined in this Act and defined in any law for the
time being in force or in the municipal laws or such other relevant laws of the appropriate
Government shall have the same meanings respectively assigned to them in those laws.
9
CHAPTER II
REGISTRATION OF REAL ESTATE PROJECT AND REGISTRATION OF REAL ESTATE AGENTS
3. Prior registration of real estate project with Re al Estate Regulatory Authority .(1) No
promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner
any plot, apartment or building, as the cas e may be, in any real estate project or part of it, in any planning
area, without registering the real estate project with the Real Estate Regulatory Author ity established
under this Act:
Provided that projects that are ongoing on the date of commencement of this Act and for which the
completion certificate has not been issued, the promoter shall make an application to the Authority for
registration of the said project within a period of three months from the da te of commencement of this
Act:
Provided furth er that if the Authority thinks necessary, in the interest of allottees, for projects which
are developed beyond the planning area but with the requisite permission of the local authority, it may, by
order, direct the promoter of such project to register w ith the Authority, and the provisions of this Act or
the rules and regulations made thereunder, shall apply to such projects f rom that stage of registration.
(2) Notwithstanding anything contained in sub -section ( 1), no registration of the real estate proj ect
shall be required
(a) where the area of land proposed to be developed does not exceed five hundred square meters
or the number of apartments proposed to be developed does not exceed eight inclusive of all phases:
Provided that, if the appropriate Gove rnment considers it necessary, it may, reduce the threshold
below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for
exemption fr om registration under this Act;
(b) where the promoter has received completion certificate for a real estate project pri or to
commencement of this Act;
(c) for the purpose of renovation or repair or re -development which does not involve marketing,
advertising selling or new allotment of any apartment, plot or building, as the case ma y be, under the
real estate project.
Explanation .For the purpose of this section, where the real estate project is to be developed in
phases, every such phase shall be considered a stand alone real estate project, and the promoter shall
obtain registratio n under this Act for each phase separately.
4. Application for regist ration of real estate projects .(1) Every promoter shall make an
application to the Authority for registration of the real estate project in such form, manner, within such
time and accomp anied by such fee as may be 1[prescribed] .
(2) The promoter shall enclose the following documents along with the application referred to in
sub-section ( 1), namely:
(a) a brief details of his enterprise including its name, registered address, type of enterprise
(proprietorship, societies, partnership, companies, competent authority), and the particulars of
registration, and the names a nd photographs of the promoter;
(b) a brief detail of the projects launched by him, in the past five years, whether alr eady
completed or being developed, as the case may be, including the current status of the said projects,
any delay in its completion, details of cases pending, details of typ e of land and payments pending;
(c) an authenticated copy of the approvals and commencement certificate from the competent
authority obtained in accordance with the laws as may be applicable for the real estate project
mentioned in the application, and where the project is proposed to be developed in phases, an
authenticated copy of the approvals and commencement certificate from the competent aut hority for
each of such phases;
1. Subs. by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347 (E)], for specified by
the regulations made by the Authority (w.e.f. 28 -10-2016).
10
(d) the sanctioned plan, layout plan and specifications of the proposed project or the phase
thereof, and the whole project as sanctio ned by the competent aut hority;
(e) the plan of development works to be executed in the proposed project and the proposed
facilities to be provided thereof including fire fighting facilities, drinking water facilities, emergency
evacuation ser vices, use of renewable energy;
(f) the location details of the project, with clear demarcation of land dedicated for the project
along with its boundaries including the latitude and longitude of the end points of the project;
(g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed t o be
signed with the allottees;
(h) the number, type and the carpet area of apartments for sale in the project along with the area
of the exclusive balcony or verandah areas and the exclusive open terrace areas ap purtenant with th e
apartment , if any;
(i) the number and area of garage for sale in the project;
(j) the names and addresses of his real estate agents, if any, for the proposed project;
(k) the names and addresses of the contractors, architect, structural engineer, if any and other
persons concerned with the devel opment of the proposed project;
(l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person
author ised by the promoter, stating:
(A) that he has a legal title to the land on w hich the development is proposed along with
legally valid documents with authentication of such title, if such l and is owned by another person;
(B) that the land is free from all encumbrances, or as the case may be details of the
encumbrances on such land including any rights, title, interest or name of any party in or over
such land along with details;
(C) the time period within which he undertakes to complete the project or pha se thereof, as
the case may be;
(D) that seventy per cent. of the amounts reali sed for the real estate project from the allottees,
from time to time, shall be deposited in a separate account to be maintained in a scheduled bank
to cover the cost of construction and the land cost and shall be used only for that purpose:
Provided that the promoter shall withdraw the amounts from the separate account, to cover
the cost of the project, in proportion to the percentag e of completion of the project:
Provided further that the amounts from the separate account shall be withdrawn by the
promote r after it is certified by an engineer, an architect and a chartered accountant in practice
that the withdrawal is in proportion to the percentag e of completion of the project:
Provided also that the promoter shall get his accounts audited within six month s after the end
of every financial year by a chartered accountant in practice, and shall produce a statement of
accounts duly certified and signed by such chartered accountant and it shall be verified during the
audit that the amounts collected for a parti cular project have been utilised for th at project and the
withdrawal has been in compliance with the proportion to the percentag e of completion of the
project.
Explanation .For the purpose of this clause, the term schedule d bank means a bank
included in the Second Scheduled to the R eserve Bank of India Act, 1934 (2 of 1934) ;
(E) that he shall take all the pending approvals on time, from the competent authorities;
(F) that he has furnished such other documents as may be prescribed by the rules or
regul ations made under this Act; and
(m) such other information and documents as may be prescribed.
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(3) The Authority shall operationalise a web based online system for submitting applications for
registration of projects within a period of one year from the date of its establishment.
5. Grant of registration .(1) On receipt of the application under sub -section ( 1) of section 4, the
Authority shall within a period of thirty days .
(a) grant registration subject to the provisions of this Act and the rules and regulations made
thereunder, and provide a registration number, including a Login Id and password to the applicant for
accessing the website of the Authority and to create his web page and to fill therein the deta ils of the
proposed proj ect; or
(b) reject the application for reasons to be recorded in writing, if such application does not
conform to the provisions of this Act or the rules or regulations made thereunder:
Provided that no application shall be rejected unless the applicant ha s been given an opportunit y
of being heard in the matter.
(2) If the Authority fails to grant the registration or reject the application, as the case may be, as
provided under sub -section ( 1), the project shall be deemed to have been registered, and the Au thority
shall within a period of seven days of the expiry of the said period of thirty days specified under
sub-section ( 1), provide a registration number and a Login Id and password to the promoter for accessing
the website of the Authority and to create his web page and to fill therein the d etails of the proposed
project.
(3) The registration granted under this section shall be valid for a period declared by the promoter
under sub -clause ( C) of clause ( l) of sub -section ( 2) of section 4 for completion of the project or pha se
thereof, as the case may be.
6. Extension of registration .The registration granted under section 5 may be extended by the
Authority on an application made by the promoter , due to force majeure, in such form and on payment of
such fee as may be 1[prescribed] :
Provided that the Authority may in reasonable circumstances, without default on the part of the
promoter, based on the facts of each case, and for reasons to be recorde d in writing, extend the
registration granted to a project for such time as it considers necessary, which shall, in aggregate, n ot
exceed a period of one year:
Provided further that no application for extension of registration shall be rejected unless the applicant
has been given an opportunity of being heard in the matter.
Explanation . For the purpose of this section, the expression force majeure shall mean a case of
war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the
regular development of the real estate project.
7. Revocation of registration .(1) The Authority may, on receipt of a complaint or suomotu in this
behalf or on |
of registration .(1) The Authority may, on receipt of a complaint or suomotu in this
behalf or on the recommendation of the competent authority, revoke the registration granted un der section
5, after being satisfied that
(a) the promoter makes default in doing anything required by or under this Act or the rules or t he
regulations made thereunder;
(b) the promoter violates any of the terms or conditions of the approval gi ven by the competent
authority;
(c) the promoter is involved in any kind of unf air practice or irregularities.
Explanation .For the purposes of this clause, the term unfair practice means a practice which, for
the purpose of promoting the sale or development of any real estate project adopts any unfair method or
unfair or deceptive practice including any of the following practices, namely:
(A) the practice of making any statement, whethe r in writing or by visible representation which,
(i) falsely represents that the services are of a particular standard or grade;
1. Subs. by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347 (E)] , for specified
by regulations made by the Authority (w.e.f. 28 -10-2016).
12
(ii) represents that the promoter has approval or affiliation whi ch such promoter does not
have;
(iii) makes a false or misle ading represen tation concerning the services;
(B) the promoter permits the publication of any advertisement or prospectus whether in any
newspaper or otherwise of services that are n ot intended to be offered;
(d) the promoter indulg es in any fraudulent pra ctices.
(2) The registration granted to the promoter under section 5 shall not be revoked unless the Authority
has given to the promoter not less than thirty days notice, in writing, stating the grounds on which it is
proposed to revoke the registration , and has considered any cause shown by the promoter within the
period of that notice a gainst the proposed revocation.
(3) The Authority may, instead of revoking the registration under sub -section ( 1), permit it to remain
in force subject to such further terms and conditions as it thinks fit to impose in the interest of the
allottees, and any such terms and conditions so imposed shal l be binding upon the promoter.
(4) The Authority, upon the r evocatio n of the registration,
(a) shall debar the promoter from accessing its website in relation to that project and specify his
name in the list of defaulters and display his photograph on its website and also inform the other Real
Estate Regulatory Authority in other States and Union territories about s uch revocation or
registration;
(b) shall facilitate the remaining development works to be carried out in accordance wi th the
provisions of section 8;
(c) shall direct the bank holding the project ba nk account, specified under sub -clause (D) of clause
(l) of sub -section ( 2) of section 4, to freeze the account, and thereafter take such further necessary
actions, including consequent de -freezing of the said account, towards facilitating the remaining
development wor ks in accordance wi th the provisions of section 8;
(d) may, to protect the interest of allottees or in the public interest, issue such directions as it may
deem necessary.
8. Obligation of Authority consequent upon lapse of or on revocation of registration .Upon
lapse of the registration or on revocation of the registration under this Act, the Authority, may consult the
appropriate Government to take such action as it may deem fit including the carrying out of the remaining
development works by competent au thority or by the association of allottees or in any other manner, as
may be determined by the Authority:
Provided that no direction, decision or order of the Authority under this section shall take effect until
the expiry of the period of appeal provided under the provisions of this Act:
Provided further that in case of revocation of registration of a project under this Act, the association
of allottees shall have the first right of refusal for carrying out of the remaining development works.
9. Regi strat ion of real estate agents .(1) No real estate agent shall facilitate the sale or purchase of
or act on behalf of any person to facilitate the sale or purchase of any plot, apartment or building, as the
case may be, in a real estate project or part of it, b eing the part of the real estate project registered under
section 3, being sold by the promoter in any planning area, without obtaining registration under this
section.
(2) Every real estate agent shall make an application to the Authority for registratio n in such form,
manner, within such time and accompanied by such fee and documents as may be prescribed.
(3) The Authority shall, within such period, in such manner and upon satisfying itself of the
fulfilment of such co nditions, as may be prescribed
(a) grant a single registration to the real estate agent for the entire State o r Union territory, as the
case may be;
13
(b) reject the application for reasons to be recorded in writing, if such application does not
conform to the provisions of the Act or th is rules or regulations made thereunder :
Provided that no application shall be rejected unless the applicant has been given an opportunit y of
being heard in the matter.
(4) Whereon the completion of the period specified under sub -section ( 3), if the applicant does not
receive any communication about the deficiencies in his application or the rejection of his application, he
shall be deemed to have been registered.
(5) Every real estate agent who is registered as per the provisions of this Act or the rules and
regulations made thereunder, shall be granted a registration number by the Authority, which shall be
quoted by the real estate agent in every sale fac ilitated by him under this Act.
(6) Every registration shall be valid for such period as may be prescribed , and shall be renewable for a
period in such manner and on payment of such fee as may be prescribed.
(7) Where any real estate agent who has been granted registration under this Act commits breach of
any of the conditions thereof or any other terms and co nditions specified under this Act or any rules or
regulations made thereunder, or where the Authority is satisfied that such registration has been secured by
the real estate agent through misrepresentation or fraud, the Authority may, without prejudice to any other
provisions under this Act, revoke the registration or suspend the same for such period as it thinks fit:
Provided that no such revocation or suspension shall be made by the Authority unless an opportunity
of being heard has been given to the real estate agent.
10. Functions of real estate agents .Every real estate agent re gistered under section 9 shall
(a) not facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a
real estate project or part of it, being sold by the promoter in any planning area, which is not
registered with the Authority;
(b) maintain and preserve such books of account, records a nd documents as may be prescribed;
(c) not involve himself in any u nfair trade practices, namely:
(i) the practice of making any statement, whether orally or in writing or b y visible
representation which
(A) falsely represents that the services are of a particular standard or grade;
(B) represents that the promoter or himself has approval or affiliation which such
promoter or himself does not have;
(C) makes a false or misleading representation con cerning the services;
(ii) permitting the publication of any advertisement whether in any newspaper or otherwise of
services that are not intended to be offered.
(d) facilit ate the possession of all the information and documents, as the allottee, is entitled to, at
the time of booking of any plot, apartment o r building, as the case may be;
(e) discharge such other functions as may be prescribed.
CHAPTER III
FUNCTIONS AND DUTIES OF PROMOTER
11. Functions and duties of promoter .(1) The promoter shall, upon receiving his Login Id and
password under clause ( a) of sub -section ( 1) or under sub -section ( 2) of section 5, as the case may be,
create his web page on the website of the Authority and enter all details of the proposed project as
provided under sub -section ( 2) of section 4, in all the fields as provided, for public viewing, includi ng
(a) details of the registr ation granted by the Authority;
14
(b) quarterly up -to-date the list of number and types of apartments or plo ts, as the case may be,
booked;
(c) quarterly up -to-date the li st of number of garages booked;
(d) quarterly up -to-date the list of approvals taken and the approvals which are pending
subseque nt to commencement certificate;
(e) quarterly up -to-date status of the project; and
(f) such other information and documents as may be specified by the regulations made by the
Authorit y.
(2) The advertisement or prospectus issued or published by the promoter shall mention p rominently
the website address of the Authority, wherein all details of the registered project have been entered and
include the registration number obtained from the Authority and such ot her matters incidental thereto.
(3) The promoter , at the time of the booking and issue of allotment letter shall be responsible to make
available to the allottee, the following information, namely:
(a) sanctioned plans, layout plans, along with specifications, approved by the competent
authority, by disp lay at the site or such other place as may be specified by the regulations made by the
Authority;
(b) the stage wise time schedule of completion of the project, including the provisions for civic
infrastructure like wat er, sanitation and electricity.
(4) The promoter shall
(a) be responsible for all obligations, responsibilities and functions under the provisions of this
Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to
the association of allottees, a s the case may be, till the conveyance of all the apartments, plots or
buildings, as the case may be, to the allottees, or the common areas to the association of allottees or
the competent authority, as the case may be:
Provided that the responsibility of the promoter, with respect to the structural defect or any other
defect for such period as is referred to in sub -section ( 3) of section 14, shall continue even after the
conveyance deed of all the apartments, plots or buildings, as the case may be, to the allottees are
executed.
(b) be responsible to obtain the completion certificate or the occupancy certificate, or both, as
applicable, from the relevant competent authority as per local laws or other laws for the time being in
force and to make it available to the allottees individually or to the association of allottees, as the case
may be;
(c) be responsible to obtain the lease certificate, where the real estate project is developed on a
leasehold land, specifying the period of lease, and certifying that all dues and charges in regard to the
leasehold land has been paid, and to make the lease certificate available to the association of allottees;
(d) be responsible for providing and maintaining the essential services, on reasonable charges, till
the taking over of the maintenance of the project by th e association of the allottees;
(e) enable the formation of an association or society or co -operative society, as the case may be,
of the allottees, or a federation of the s ame, under the laws applicable:
Provided that in the absence of local laws, the association of allottees, by whatever name cal led,
shall be formed within a period of three months of the majority of allottees having booked their plot
or apartment or building, as t he case may be, in the project;
(f) execute a registered conveyance deed of the apartment, plot or building, as the cas e may be, in
favour of the allottee along with the undivided proportionate title in the common areas to the
association of allottees or competent authority, as the case may be, as provided unde r section 17 of
this Act;
15
(g) pay all outgoings until he transf ers the physical possession of the real estate project to the
allottee or the associations of allottees, as the case may be, which he has collected from the allottees,
for the payment of outgoings (including land cost, ground rent, municipal or other local taxes, charges
for water or electricity, maintenance charges, including mortgage loan and interest on mortgages or
other encumbrances and such other liabilities payable to competent authorities, banks and financial
institutions, whi ch are related to the p roject):
Provided that where any promoter fails to pay all or any of the outgoings collected by him from
the allottees or any liability, mortgage loan and interest thereon before transferring the real estate
project to such allottees, or the association of the allottees, as the case may be, the promoter shall
continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges,
if any, to the authority or person to whom they are payable and be liable for the cost of any le gal
proceedings which may be taken theref or by such authority or person;
(h) after he executes an agreement for sale for any apartment, plot or building, as the case may be,
not mortgage or create a charge on such apartment, plot or building, as the case m ay be, and if any
such mortgage or charge is made or created then notwithstanding anything contained in any other law
for the time being in force, it shall not affect the right and interest of the allottee who has taken or
agreed to take such apartment, pl ot or building, as the case may be;
(5) The promoter may cancel the allotment only in t erms of the agreement for sale:
Provided that the allottee may approach the Authority for relief, if he is aggrieved by such
cancellation and such cancellation is not in accordance with the terms of the agreement for sale, unilateral
and without any sufficient cause.
(6) The promoter shall prepare and maintain all such other details as may be specified, from time to
time, by regulations made by the Authority .
12. Obligations of promoter regarding veracity of th e advertisement or prospectus .Where any
person makes an advance or a deposit on the basis of the information contained in the notice ,
advertisement or prospectus, or on the basis of any model apartment, plot or building, as the case may be,
and sustains any loss or damage by reason of any incorrect, false statement included therein, he shall be
compensated by the promoter in the man ner as provided under this Act:
Provided that if the person affected by such i ncorrect, false statement contained in the notice,
advertisement or prospectus, or the mod el apartment, plot or building as the case may be, intends to
withdraw from the proposed project, he shall be returned his entire investment along with interest at su ch
rate as may be prescribed and the compensation in the manner provided under this Act.
13. No deposit or advance to be taken by promoter without first entering into agreement f or
sale.(1) A promoter shall not accept a sum more than ten per cent . of the cost of the apartment, plot, or
building as the case may be |
promoter shall not accept a sum more than ten per cent . of the cost of the apartment, plot, or
building as the case may be, as an advance payment or an application fee, from a person without first
entering into a written agreement for sale with such person and register the said agreement for sale, under
any l aw for th e time being in force.
(2) The agreement for sale referred to in sub -section ( 1) shall be in such form as may be prescribed
and shall specify the particulars of development of the project including the construction of building and
apartments, along with specifications and internal development works and external development works,
the dates and the manner by which payments towards the cost of the apartment, plot, or building, as the
case may be, are to be made by the allottees and the date on which the possession of the apartment, plot or
building is to be handed over, the rates of int erest payable by the promoter to the allottee and the allottee
to the promoter in case of default, and such other particulars, as may be prescribed .
14. Adherence to sanctioned plans and project s pecifications by the promoter .(1) The
proposed project shal l be developed and completed by the promoter in accordance with the sanctioned
plans, layout plans and specifications as approve d by the competent authorities.
(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned p lans,
layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the
16
apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or
furnished to the person who agree t o take one or more of the said apartment, plot or building, as the case
may be, the promoter shall not make
(i) any additions and alterations in the sanctioned plans, layout plans and specifications and the
nature of fixtures, fittings and amenities descr ibed therein in respect of the apartment, plot or
building, as the case may be, which are agreed to be taken, without the p revious consent of that
person:
Provided that the promoter may make such minor additions or alterations as may be required by the
allottee, or such minor changes or alterations as may be necessary due to architectural and structural
reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration
and intimation to the allottee.
Explanation .For th e purpose of this clause, minor additions or alterations excludes structural
change including an addition to the area or change in height, or the removal of part of a building, or any
change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall,
partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or
closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc.
(ii) any other alterations or additions in the sanctioned plans, la yout plans and specifications of
the buildings or the common areas within the project without the previous written consent of at least
two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such
building.
Explanation .For the purpo se of this clause, the allottee , irrespective of the number of apartments or
plots, as the case may be, booked by him or booked in the name of his family, or in the case of other
persons such as companies or firms or any association of individu als, etc., by whatever name called,
booked in its name or booked in the name of its associated entities or related enterprises, shall be
considered as one allottee only.
(3) In case any structural defect or any other defect in workmanship, quality or provi sion of services
or any other obligations of the promoter as per the agreement for sale relating to such development is
brought to the notice of the promoter within a period of five years by the allottee from the date of handing
over possession, it shall b e the duty of the promoter to rectify such defects without further charge, within
thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved
allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.
15. Obligations of promoter in case of transfer of a real e state project to a third party .(1) The
promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to
a third party without obtaining prior written consent from two -third allottees, except the promoter, and
without the prior written approval of the Authority:
Provided that such transfer or assignment shall not affect the allotment or sale of the apartments, pl ots
or buildings as the case may be, in the real estate project made by the erstwhile promoter.
Explanation .For the purpose of this sub -section, the allottee, irrespective of the number of
apartments or plots, as the case may be, booked by him or booked i n the name of his family, or in the case
of other persons such as companies or firms or any association of individuals, by whatever name called,
booked in its name or booked in the name of its associated entities or related enterprises, shall be
considered as one allottee only.
(2) On the transfer or assignment being permitted by the allottees and the Authority under
sub-section ( 1), the intending promoter shall be required to independently comply with all the pending
obligations under the provisions of this Act or the rules and regulations made thereunder, and the pending
obligations as per the agreement for sale entered into by the erstwhi le promoter with the allottees:
Provided that any transfer or assignment permitted under provisions of this section shall not result in
extension of time to the intending promoter to complete the real estate project and he shall be required to
comply with all the pending obligations of the erstwhile promoter, and in case of default, such intending
17
promoter shall be liab le to the consequences of breach or delay, as the case may be, as provided under this
Act or the rules and regulations made thereunder.
16. Obligations of promoter regarding ins urance of real estate project .(1) The promoter shall
obtain all such insuranc es as may be notified by the appropriate Government, including but not limit ed to
insurance in respect of
(i) title of the land and building as a part of the real estate project; and
(ii) construction of the real estate project.
(2) The promoter shall b e liable to pay the premium and charges in respect of the insurance specified
in sub -section ( 1) and shall pay the same before transferring the insurance to the association of the
allottees.
(3) The insurance as specified under sub -section ( 1) shall stand transferred to the benefit of the
allottee or the association of allottees, as the case may be, at the time of promoter entering into an
agreement for sale with the allottee.
(4) On formation of the association of the allottees, all documents relating to t he insurance specified
under sub -section ( 1) shall be handed over to the association of the allottees.
17. Transfer of title .(1) The promoter shall execute a registered conveyance deed in favour of the
allottee along with the undivided proportionate title in the common areas to the association of the allottees
or the competent authority, as the case may be, and hand over the physical possession of the plot,
apartment of building, as the case may be, to the allot tees and the common areas to the association of the
allottees or the competent authority, as the case may be, in a real estate project, and the other title
documents pertaining thereto within specified period as per sanctioned plans as provided under the l ocal
laws:
Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the
association of the allottees or the competent authority, as the case may be, under this section shall be
carried out by the promoter within three mo nths from date of issue of occupancy certificate.
(2) After obtaining the occupancy certificate and handing over physical possession to the allottees in
terms of sub -section ( 1), it shall be the responsibility of the promoter to handover the necessary
documents and plans, including common areas, to the association of the allottees or the competent
authority, as the case may be, as per the local laws:
Provided that, in the absenc e of any local law, the promoter shall handover the necessary documents
and plans, including common areas, to the association of the allottees or the competent authority, as the
case may be, within thirty days after obtaining the 1[completion ] certificate.
18. Return of amount and compensation .(1) If the promoter fails to complete or is unable to give
possession of a n apartment, plot or building,
(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed
by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of suspension or revocation of
the registration under this Act or for any other rea son,
he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project,
without prejudice to any other remedy available, to return the amount received by him in respect of that
apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf
including compensation in the man ner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the
promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be
prescribed.
(2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title
of the land, on which the project is being developed or has been developed, in the manner as provided
1. Subs. by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347(E) , for occupancy
(w.e.f. 28 -10-2016).
18
under this Act, and the claim for compensation under this subsection shall not be barred by limitation
provided under any law for the time being in force.
(3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules
or regulations ma de thereunder or in accordance with the terms and conditions of the agreement for sale,
he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.
CHAPTER IV
RIGHTS AND DUTIES OF ALLOTTEES
19. Rights and duties of allottees .(1) The allottee shall be entitled to obtain the information
relating to sanctioned plans, layout plans along with the specifications, approved by the competent
authority and such other information as provided in this Act or the rules and regulations made thereunder
or the agreement for sale signed with the promoter.
(2) The allottee shall be entitled to know stage -wise time schedule of completion of the project,
including the provisions for water, sanitation, electricity and other amenities and services as agreed to
betwe en the promoter and the allottee in accordance with the terms and condit ions of the agreement for
sale.
(3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case
may be, and the association of allottees shall be entitled to claim the possession of the common areas, as
per the declaration given by the promoter under sub -clause ( C) of clause ( l) of sub -section ( 2) of
section 4.
(4) The allottee shall be entitled to claim the refund of amount paid along with intere st at such rate as
may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the
promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case
may be, in accordance with th e terms of agreement for sale or due to discontinuance of his business as a
developer on account of suspension or revocation of his registration under the provisions of this Act or
the rules or regulations made thereunder.
(5) The allottee shall be entitle d to have the necessary documents and plans, including that of
common areas, after handing over the physical possession of the apartment or plot or building as th e case
may be, by the promoter.
(6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as
the case may be, under section 13, shall be responsible to make necessary payments in the manner and
within the time as specified in the said agreement for sale and shall pay at the proper time and place, the
share of the registration charges, municipal taxes, water and electricity charges, maintenance charges,
ground r ent, and other charges, if any.
(7) The allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in
payment toward s any amount or charges to be paid under sub -section ( 6).
(8) The obligations of the allottee under sub -section ( 6) and the liability towards interest under
sub-section ( 7) may be reduced when mutually agreed to between the promoter and such allottee.
(9) Every allottee of the apartment, plot or building as the case may be, shall participate towards the
formation of an association or society or cooperative society of the allottees, or a federation of the same.
(10) Every allottee shall take physical posse ssion of the apartment, plot or building as the case may
be, within a period of two months of the occupancy certificate issued for the said apartment, plot o r
building, as the case may be.
(11) Every allottee shall participate towards registration of the c onveyance deed of the apartment, plot
or building, as the case may be, as provided under sub -section ( 1) of section 17 of this Act.
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CHAPTER V
THE REAL ESTATE REGULATORY AUTHORITY
20. Establishment and incorporation of Rea l Estate Regulatory Authority .(1) The appropriate
Government shall, within a period of one year from the date of coming into force of this Act, by
notification, establish an Authority to be known as the Real Estate Regulatory Authority to exercise the
powers conferred on it and to perfor m the functions assigned to it under this Act:
Provided that the appropriate Government of two or more States or Union territories may, if it deems
fit, establish one single Authority:
Provided further that the appropriate Government may, if it deems fit, establish more than one
Authority in a State or Union territory, as the case may be:
Provided also that until the establishment of a Regulatory Authority under this section, the
appropriate Government shall, by order, designate any Regulatory Authority or any officer preferably the
Secretary of the department dealing with Housing, as the Regulatory Authority f or the purposes under this
Act:
Provided also that after the establishment of the Regulatory Authority, all applications, complaints or
cases pending with the Regulatory Authority designated, shall stand transferred to the Regulatory
Authority so established and shall be heard from the stage such applications, compl aints or cases |
ity designated, shall stand transferred to the Regulatory
Authority so established and shall be heard from the stage such applications, compl aints or cases are
transferred.
(2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a
common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of
property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued.
21. Composit ion of Authority .The Authority shall consist of a Chairperson and not less than two
whole time Members to be appointed by the appropriate Government.
22. Qualifications of Chairpe rson and Members of Authority .The Chairperson and other
Members of the Auth ority shall be appointed by the appropriate Government on the recommendations of
a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of
the Department dealing with Housing and the Law Secretary, in such man ner as may be prescribed, from
amongst persons having adequate knowledge of an d professional experience of at -least twenty years in
case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real
estate development, infrastructure, economics, technical experts from relevant fields, planning, law,
commerce, accountancy, industry, management, social service, publ ic affairs or administration:
Provided that a person who is, or has been, in the service of the State Govern ment shall not be
appointed as a Chairperson unless such person has held the post of Additional Secretary to the Central
Government or any equivalent post in the Central Government or State Government:
Provided further that a person who is, or has been, in the service of the State Government shall not be
appointed as a member unless such person has held the post of Secretary to the State Government or any
equivalent post in the State Government or Central Government.
23. Term of offic e of Chairperson and Me mbers .(1) The Chairperson and Members shall hold
office for a term not exceeding five years from the date on which they enter upon their office, or until
they attain the age of sixty -five years, whichever is earlier and shall not be eligible for re-appointment.
(2) Before appointing any person as a Chairperson or Member, the appropriate Government shall
satisfy itself that the person does not have any such financial or other interest as is likely to affect
prejudicially his functions as such Membe r.
24. Salary and allowances payab le to Chairperson and Members .(1) The salary and allowances
payable to, and the other terms and conditions of service of, the Chairperson and other Members shall be
such as may be prescribed and shall not be varied to the ir disadvantage during their tenure.
(2) Notwithstanding anything contained in sub -sections ( 1) and ( 2) of section 23, the Chairperson or a
Member, as the case may be, may,
(a) relinquish his office by giving in writing, to the appropriate Government, notice of not less
than three months; or
20
(b) be removed from his office in accordance with the provis ions of section 26 of this Act.
(3) Any vacancy caused to the office of the Chairperson or any other Member shall be filled -up
within a period of three mo nths from the date on which such vacancy occurs.
25. Adminis trative powers of Chairperson .The Chairperson shall have powers of general
superintendence and directions in the conduct of the affairs of Authority and he shall, in addition to
presiding over th e meetings of the Authority, exercise and discharge such administrative powers and
functions of the Authority as may be prescribed.
26. Removal of Chairperson and Members from off ice in certain circumstances .(1) The
appropriate Government may, in accordan ce with the procedure notified, remove from office the
Chairperson or other Members, if the Chairperson or such oth er Member, as the case may be,
(a) has be en adjudged as an insolvent; or
(b) has been convicted of an offence , involving moral turpitude; or
(c) has become physically or mentally inca pable of acting as a Member; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions; or
(e) has so abused his position as to render his continuance in office prej udicial to the public
interest.
(2) The Chairperson or Member shall not be removed from his office on the ground specified under
clause ( d) or clause ( e) of sub -section ( 1) except by an order made by the appropriate Government after an
inquiry made by a Judg e of the High Court in which such Chairperson or Member has been informed of
the charges against him and given a reasonable opportunity of being heard in respect of those charges.
27. Restrictions on Chairperson or Members on employ ment after cessation of office .(1) The
Chairperson or a Member, ceasing to hold office as such, shall not
(a) accept any employment in, or connected with, the management or administration of, any
person or organisation which has been associated with any work under this Act, from the date on
which he ceases to hold office:
Provided that nothing contained in this clause shall apply to any employment under the
appropriate Government or a local authority or in any statutory authority or any corporation
established by or under any Central, State or provincial Act or a Government Company, as defined
under clause ( 45) of section 2 of the Companies Act, 2013 (18 of 2013) , which is not a promoter as
per the provisions of this Act ;
(b) act, for or on behalf of any person or organisation in connection with any specific proceeding
or transaction or negotiation or a case to which the Authority is a party and with respect to which the
Chairperson or such Member had, before cessation of office, acted for or pro vided advice to the
Authority;
(c) give advice to any person using information which was obtained in his capacity as the
Chairperson or a Member and being unavailable to or not being able to be made avai lable to the
public;
(d) enter into a contract of service with, or accept an appointment to a board of directors of, or
accept an offer of employment with, an entity with which he had direct and significant official
dealings dur ing his term of office as such.
(2) The Chairperson and Members shall not communicate or reveal to any person any matter which
has been brought under his consideration or known to him while acting as such.
28. Officers and other employees of Authority .(1) The appropriate Government may, in
consultation wit h the Authority appoint such officers and employees as it considers necessary for the
efficient discharge of their functions under this Act who would discharge their functions under the general
superintendence of the Chairperson.
21
(2) The salary and allowa nces payable to, and the other terms and conditions of service of, the
officers and of the employees of the Authority appointed under sub -section ( 1) shall be such as may be
prescribed.
29. Meetings of Authority .(1) The Authority shall meet at such places and times, and shall follow
such rules of procedure in regard to the transaction of business at its meetings, (including quorum at such
meetings), as may be specified by the regul ations made by the Authority.
(2) If the Chairperson for any reason, is unab le to attend a meeting of the Authority, any other
Member chosen by the Members present amongst themselves at the meeting , shall preside at the meeting.
(3) All questions which come up before any meeting of the Authority shall be decided by a majority
of votes by the Members present and voting, and in the event of an equality of votes, the Chairperson or
in his absence, the person presiding shall have a second or casting vote.
(4) The questions which come up before the Authority shall be dealt with as exped itiously as possible
and the Authority shall dispose of the same within a period of sixty days from the date of receipt of the
application:
Provided that where any such application could not be disposed of within the said period of sixty
days, the Authorit y shall record its reasons in writing for not disposing of the application within that
period.
30. Vacancies, etc., not to invali date proceeding of Authority .No act or proceeding of the
Authority shall be invalid merely by reas on of
(a) any vacancy in, o r any defect in the con stitution of, the Authority; or
(b) any defect in the appointment of a person acting a s a Member of the Authority; or
(c) any irregularity in the procedure of the Authority not affecting the merits of the case.
31. Filing of complaints with the Authority or the adjudicating officer .(1) Any aggrieved
person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any
violation or contravention of the provisions of this Act or the rules and regulations made thereunder ,
against any promoter , allottee or real e state agent, as the ca se may be.
Explanation .For the purpose of this sub -section person shall include the association of allottees
or any voluntary consumer association registered unde r any l aw for the time being in force.
(2) The form, manner and fees for filing complaint under sub -section ( 1) shall be such as may be
1[prescribed ].
32. Functions of Authority for pro motion of real estate sector .The Authority shall in order to
facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector
make recommendations to the appropriate Government o r the competent auth ority, as the case may be,
on,
(a) protection of interest of the allottees, promoter and real estate agent;
(b) creation of a single window system for ensuring time bound project approvals and clearances
for ti mely completion of the project;
(c) creation of a transparent and robust grievance redressal mechanism against acts of omission
and commission of competent a uthorities and their officials;
(d) measures to encourage investment in the real estate sector including measures to increase
financial assistance to affordable housing segment;
(e) measures to encourage construction of environmentally sustainable and affordable housing,
promoting standardisation and use of appropriate construction materials, fixtures, fittin gs and
construction techniques;
1. Subs. by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347 (E)], for specified by
regulations (w.e.f. 28 -10-2016).
22
(f) measures to encourage grading of projects on various parameters of development including
grading of promoters;
(g) measures to facilitate amicable conciliation of disputes between the promoters and the
allottees through dispute settlement forums set up by the con sumer or promoter associations;
(h) measures to facilitate digitization of land records and system towards conclusive proper ty
titles with title guarantee;
(i) to render advice to the appropriate Government in matters relating to the dev elopment of real
estate sector;
(j) any other issue that the Authority may think necessary for the promotion of the real estate
sector.
33. Adv ocacy and awareness measures .(1) The appropriate Government may, while formulating
a policy on real estate sector (including review of laws related to real estate sector) or any other matter,
make a reference to the Authority for its opinion on possible effect of such policy or law on r eal estate
sector and on the receipt of such a reference, the Authority shall within a period of sixty days of making
such reference, give its opinion to the appropriate Government , which may thereafter take further action
as it deems fit.
(2) The opinion given by the Authority under sub -section ( 1) shall not be binding upon the
appropriate Government in f ormulating such policy or laws.
(3) The Authority shall take suitable measures for the promotion of advocacy, creating awareness and
imparting training ab out laws relating to real estate sector and policies.
34. Functions of Authority .The functions of the Authority shall include
(a) to register and regulate real estate projects and real estate ag ents registered under this Act;
(b) to publish and maintain a website of records, for public viewing, of all real estate projects for
which registration has been given, with such details as may be prescribed, including information
provided in the application for which registration has been granted;
(c) to maintain a database, on its website, for public viewing, and enter the names and
photographs of promoters as defaulters including the project details, registration for which has been
revoked or have been penalised under this Act, with reasons therefor, for access t o the general public;
(d) to maintain a database, on its website, for public viewing, and enter the names and
photographs of real estate agents who have applied and registered under this Act, with such details as
may be prescribed, including those whose re gistratio n has been rejected or revoked;
(e) to fix through regulations for each areas under its jurisdiction the standard fees to be levied on
the allottees or the promoter or the real es tate agent, as the case may be;
(f) to ensure compliance of the obli gations cast upon the promoters, the allottees and the real
estate agents under this Act and the rules a nd regulations made thereunder;
(g) to ensure compliance of its regulations or orders or directions made in exercis e of its powers
under this Act;
(h) to perform such other functions as may be entrusted to the Authority by the appropriate
Government as may be necessary to carry out the provisions of this Act.
35. Powers of Authority to call for informa tion, conduct investigations .(1) Where the Authority
considers it expedient to do so, on a complaint or suomotu , relating to this Act or the rules o r regulations
made thereunder, it may, by order in writing and recording reasons therefor call upon any promoter or
allottee or real estate agent, as the case may be, at any time to furnish in writing such information or
explanation relating to its affairs as the Authority may require and appoint one or more persons to make
an inquiry in relation to the affairs of any promoter or allottee or the real estate agent, as the case may be.
23
(2) Notwithstanding anything contained in any other law for the time being in force, while exercising
the powers under sub -section ( 1), the Authority shall have the same powers as are vested in a c ivil court
under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following
matters, namely:
(i) the discovery and production of books of account and other documents, at such place and at
such time as may be specified b y the Authority;
(ii) summoning and enforcing the attendance of pers ons and examining them on oath;
(iii) issuing commissions for the examina tion of witnesses or documents;
(iv) any other matter which may be prescribed .
36. Power to issue interim orders .Where during an inquiry, the Authority is satisfied that an act in
contravention of this Act, or the rules and regulations made thereunder, has been committed and
continues to be committed or that such act is about to be committed, the Authority may, |
ulations made thereunder, has been committed and
continues to be committed or that such act is about to be committed, the Authority may, by or der, restrain
any promoter, allottee or real estate agent from carrying on such act until the conclusion of such inquiry
or until further orders, without giving notice to such party, where the Authority deems it necessary.
37. Powers of Authority to issue directions .The Authority may, for the purpose of discharging its
functions under the provisions of this Act or rules or regulations made thereunder, issue such directions
from time to time, to the promoters or allottees or real estate agents, as the case may be, as it may
consider necessary and such directions shall be binding on all concerned.
38. Powers of Authority .(1) The Authority shall have powers to impose penalty or interest, in
regard to any contravention of ob ligations cast upon the promoters, the allottees and the real estate agents,
under this Act or the rules and t he regulations made thereunder.
(2) The Authority shall be guided by the principles of natural justice and, subject to the other
provisions of thi s Act and the rules made thereunder, the Authority shall have powers to regulate its own
procedure.
(3) Where an issue is raised relating to agreement, action, omissi on, practice or procedure that
(a) has an appreciable prevention, restriction or distorti on of competition in connection with the
developme nt of a real estate project; or
(b) has effect of market power of monopoly situation being abused for affecting interest of
allottees adversely,
then the Authority, may , suomotu , make reference in respect of such issue to the Competition
Commission of India.
39. Rectification of orders .The Authority may, at any time within a period of two years from the
date of the order made under this Act, with a view to rectifying any mistake apparent from the record,
amend any order passed by it, and shall make such amendment, if the mistake is brough t to its notice by
the parties:
Provided that no such amendment shall be made in respect of any order against which an appeal has
been preferred under this Act:
Provided further that the Authority shall not, while rectifying any mistake apparent from record,
amend substantive part of its order passed under the provisions of this Act .
40. Recovery of interest or penalty or compensation and enforcement of order, et c.(1) If a
promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or
compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate
Authority, as the case may be, under this Ac t or the rules and regulations made thereunder, it shall be
recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an
arrears of land revenue.
24
(2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may
be, issues any order or directs any person to do any act, or refrain from doing any act, which it is
empowered to do under this Act or the rules or regulations made thereunder, then in case of failure by any
person t o comply with such order or direction, the same shall be enforced, in such manner as may be
prescribed.
CHAPTER VI
CENTRAL ADVISORY COUNCIL
41. Establishmen t of Central Advisory Council .(1) The Central Government may, by
notification, establish with effect from such date as it may specify in such notification, a Council to be
known a s the Central Advisory Council.
(2) The Minister to the Government of India in charge of the Ministry of the Central Government
dealing with Housing shall be the ex offici o Chairperson o f the Central Advisory Council.
(3) The Central Advisory Council shall consist of representatives of the Ministry of Finance, Ministry
of Industry and Commerce, Ministry of Urban Development, Ministry of Consumer Affairs, Ministry of
Corpora te Affairs, Ministry of Law and Justice, Niti Aayog, National Housing Bank, Housing and Urban
Development Corporation, five representatives of State Governments to be selected by rotation, five
representatives of the Real Estate Regulatory Authorities to b e selected by rotation, and any other Central
Government department as notified.
(4) The Central Advisory Council shall also consist of not more than ten members to represent the
interests of real estate industry, consumers, real estate agents, constructio n labourers, non -governmental
organisations and academic and research bodies in the real estate sector.
42. Functions of Central Advisory Council .(1) The functions of the Central Advisory Council
shall be to advise and recommend the Central Gove rnment,
(a) on all matters concerning the implementation of this Act;
(b) on major questions of policy;
(c) towards p rotection of consumer interest;
(d) to foster the growth and develop ment of the real estate sector;
(e) on any other matter as may be assigned t o it by the Central Government.
(2) The Central Government may specify the rules to give effect to the recommendations of the
Central Advisory Council on matters as provided under sub -section ( 1).
CHAPTER VII
THE REAL ESTATE APPELLATE TRIBUNAL
43. Establishmen t of Re al Estate Appellate Tribunal .(1) The appropriate Government shall,
within a period of one year from the date of coming into force of this Act, by notification, establish an
Appellat e Tribunal to be known as the (name of the State/Union territory) Real Estate Appellate
Tribunal.
(2) The appropriate Government may, if it deems necessary, establish one or more benches of the
Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be.
(3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one
Admi nistrative or Technical Member.
(4) The appropriate Government of two or more Sta tes or Union territories may, if it deems fit,
establish one single Appellate Tribunal:
Provided t hat, until the establishment of an Appellate Tribunal under this section, the appropriate
Government shall designate, by order, any Appellate Tribunal f unctioning under any law for the time
being in force, to be the Appellate Tribunal to hear appeal s under the Act:
25
Provided further that after the Appellate Tribunal under this section is established, all matters pending
with the Appellate Tribunal designated to hear appeals, shall stand transferred to the Appellate Tribunal
so established and shall be heard from the st age such appeal is transferred.
(5) Any person aggrieved by any direction or decision or order made by the Authority or by an
adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction
over the ma tter:
Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained ,
without the promoter first having deposited with the Appellate Tribunal atleast thirty per cent. of the
penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to
be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the
case may be, b efore the said appeal is heard.
Explanation .For the purpose of this sub -section person shall include the association of allottees
or any voluntary consumer association registered under any law for the time being in force.
44. Application for settlement of disputes and a ppeals to Appellate Tribunal .(1) The
appropriate Government or the competent authority or any person aggrieved by any direction or order or
decision of the Authority or the adjudicating officer may prefer an ap peal to the Appellate Tribunal.
(2) Every appeal made under sub -section ( 1) shall be preferred within a period of sixty days from the
date on which a copy of the direction or order or decision made by the Authority or the adjudicating
officer is received by the appropriate Government or the competent authority or the aggrieved person and
it shall be in such form and accompanied by such fee, as may be prescribed:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is
satisfied that there was sufficient cause for not filling it within that period.
(3) On r eceipt of an appeal under sub -section ( 1), the Appellate Tribunal may after giving the parties
an opportunity of being heard, pass such orders, including in terim orders, as it thinks fit.
(4) The Appellate Tribunal shall send a copy of every order made by it to the parties and to the
Authority or the adjudicati ng officer, as the case may be.
(5) The appeal preferred under sub -section ( 1), shall be dealt with by it as expeditiously as possible
and endeavour shall be made by it to dispose of the appeal within a period of sixty days from the date of
receipt of appeal:
Provided that where any such appeal could not be disposed of within the said period of sixty days, the
Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that period.
(6) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness
of any order or decision of the Authority or the adjudicating officer, on its own motion or otherwise, call
for the records relevant to depo sing of such appeal and make such orders as it thinks fit.
45. Compo sition of Appellate Tribunal .The Appellate Tribunal shall consist of a Chairperson and
not less than two whole time Members of which one shall be a Judicial member and other shall be a
Technical or Administrative Member, to be appointed by the appropriate Government.
Explanation .For the purposes of this Chapter,
(i) Judicial Member means a Member of the Appellate Tribunal appointed as such under
clause ( b) of sub -section ( 1) of sect ion 46;
(ii) Technical or Administrative Member means a Member of the Appellate Tribunal appointed
as such under clause ( c) of sub -section ( 1) of section 46.
46. Qualifications for appointmen t of Chairperson and Members .(1) A person shall not be
qualified for appointment as the Chairperson or a Member of the Appellate Tribunal unless he,
(a) in the case of Chairperson, is or has be en a Judge of a High Court; and
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(b) in the case of a Judicial Member he has held a judicial office in the territory of India for at
least fifteen years or has been a member of the Indian Legal Service and has held the post of
Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty
years with experience in dealing with rea l estate matters; and
(c) in the case of a Technical or Administrative Member, he is a person who is well -versed in the
field of urban development, housing, real estate development, infrastructure, economics, planning,
law, commerce, accountancy, industry, management, public affairs or administration and possesses
experience of at least twenty years in the field or who has held the post in the Central Government or
a State Government equivalent to the post of Additional Secretary to the Government of India or an
equivalent post in the Central Government or an equivalen t post in the State Government.
(2) The Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in
consultation with the Chief Justice of High Court or his nomine e.
(3) The Judicial Members and Technical or Administrative Members of the Appellate Tribunal shall
be appointed by the appropriate Government on the recommendations of a Selection Committee
consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department
handling Housing and the Law Secretary and in such manner as may be prescribed.
47. Term of office of Chairperson and Members .(1) The Chairperson of the Appellate Tribunal
or a Member of the Appellate Tribunal shall hold o ffice, as such for a term not exceeding five years from
the date on which he enters upon his office, but shall not be eligible for re -appointment:
Provided that in case a person, who is or has been a Judge of a High Court, has been appointed as
Chairperson of the Tribunal, he shall not hold office after he has attained the age of sixty -seven years:
Provided further that no Judicial Member or Technical or Administrative Member shall hold office
after he has attain ed the age of sixty -five years.
(2) Before ap pointing any person as Chairperson or Member, the appropriate Government shall
satisfy itself that the person does not have any such financial or other interest, as is likely to affect
prejudicially his functions as such member.
48. Salary and allowances p ayable to Chairperson and Members .(1) The salary and allowances
payable to, and the other terms and conditions of service of, the Chairperson and other Members shall be
such as may be prescribed and shall not be varied to their di sadvantage during their t enure.
(2) Notwithstanding anything contained in sub -sections ( 1) and ( 2) of section 47, the Chairperson or a
Member, as the case may be, may:
(a) relinquish his office by giving in writing to the appropriate Government a notice of not less
than three months;
(b) be removed from his office in accordance wit h the provisions of section 49.
(3) A vacancy caused to the office of the Chairperson or any other Member, as the case may be, shall
be filled -up within a period of three month s from the date on which such vacancy occurs.
49. Removal of Chairperson and Member from office in certain circumstances .(1) The
appropriate Government may, in consultation with the Chief Justice of the High Court, remove from
office of the Chairperson or any Judicial Member or Technical or Administrative Member of the
Appellate Tribunal, who
(a) has been adjudged as an insol vent; or
(b) has been convicted of an offence which, in the opinion of the appropriate Governme nt
involves moral turpitude; or
(c) has become physi cally or mentally incapable; or
(d) has acquired such financial or other interest as is likely to affect prej udicially his functions; or
27
(e) has so abused his position as to render his continuance in office prej udicial to the public
interest.
(2) The Chairperson or Judicial Member or Technical or Administrative Member shall not be
removed from his office except by an order made by the appropriate Government after an inquiry made
by the Judge of the High Court in whic h such Chairperson or Judicial M ember or Technical or
Administrative Member has been informed of the charges against him and given a reasonable oppor tunity
of being hea rd in respect of those charges.
(3) The appropriate Government may suspend from the office of the Chairperson or Judicial Member
or Technical or Administrative Member in respect of whom a reference of conducting an inquiry has been
made to the Judge of the High Court under sub -section ( 2), until the appropriate Government passes an
order on receipt of the report of inquiry made by the Judge of th e High Court on such reference.
(4) The appropriate Government may, by rules, regulate the pro cedure for inquiry referred |
of th e High Court on such reference.
(4) The appropriate Government may, by rules, regulate the pro cedure for inquiry referred to in
sub-section ( 2).
50. Restrictions on Chairperson or Judicial Member or Technical or Administrative Member
on employment after cessation of office .(1) The Chairperson or Judicial Member or Technical or
Administrative Member, ceasing to hold office as such shall not:
(a) accept any employment in, or connected with, the management or administration of, any
person or organisation which has been associate d with any work under this Act, from the date on
which he ceases to hold office:
Provided that nothing contained in this clause shall apply to any employment under the
appropriate Government or a local authority or in any statutory authority or any corporation
established by or under any Central, State o r Provincial Act or a Government Company as defined
under clause ( 45) of section 2 of the Companies Act, 2013 (18 of 2013) , which is not a promoter as
per the provisions of this Act;
(b) act, for or o n behalf of any person or organisation in connection with any specific proceeding
or transaction or negotiation or a case to which the Authority is a party and with respect to which the
Chairperson or Judicial Member or Technical or Administrative Member h ad, before cessation of
office, acted for or pro vided advice to, the Authority;
(c) give advice to any person using information which was obtained in his capacity as the
Chairperson or Judicial Member or Technical or Administrative Member and being unavail able to or
not being able to b e made available to the public;
(d) enter into a contract of service with, or accept an appointment to a board of directors of, or
accept an offer of employment with, an entity with which he had direct and significant official
dealings dur ing his term of office as such.
(2) The Chairperson or Judicial Member or Technical or Administrative Member shall not
communicate or reveal to any person any matter which has been brought under his consideration or
known to him while acting as such.
51. Officers and other employees of Appellate Tribunal .(1) The appropriate Government shall
provide the Appellate Tribunal with such officers an d employees as it may deem fit.
(2) The officers and employees of the Appellate Tribunal shall dischar ge their functions under the
general superintendence of its Chairp erson.
(3) The salary and allowances payable to, and the other terms and conditions of service of, the
officers and employees of the Appellate Tribunal shall be such as may be prescribed.
52. Vacancies .If, for reason other than temporary absence, any vacancy occurs in the office of the
Chairperson or a Member of the Appellate Tribunal, the appropriate Government shall appoint another
person in accordance with the provisions of this Act to fi ll the vacancy and the proceedings may be
continued before the Appellate Tribunal from the stage at which the vacancy is filled.
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53. Powers of Tribunal .(1)The Appellate Tribunal shall not be bound by the procedure laid down
by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice.
(2) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own
procedure.
(3) The Appellate Tribunal shall also not be bound by the rules of evidence contained in the Indian
Evidence Act, 1872 (1 of 1872) .
(4) The Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the
same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect
of the following matters, namely:
(a) summoning and enforcing the attendance of any pe rson and examining him on oath;
(b) requiring the discove ry and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examinat ions of witnesses or documents;
(e) reviewing it s decisions;
(f) dismissing an application for defaul t or directing it ex parte ; and
(g) any other matter which may be prescribed.
(5) All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within
the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code
(45 of 1860) , and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195
and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) .
54. Administrative powers of Chairperson of Appellate Tribunal .The Chairperson shall have
powers of general superintendence and direction in the conduct of the affairs of Appellate Trib unal and he
shall, in addition to presiding over the mee tings of the Appellate Tribunal, exercise and discharge such
administrative powers and functions of the Appellate Tribunal as may be prescribed.
55. Vacancies, etc., not to invalidate proceeding of Ap pellate Tribunal .No act or proceeding of
the Appellate Tribunal shall be invalid merely by reason of
(a) any vacancy in, or any defect in the constitution of, the Appellate Tribunal; or
(b) any defect in the appointment of a person acting as a Membe r of the Appellate Tribunal; or
(c) any irregularity in the procedure of the Appellate Tribunal not affecting the merits of the case.
56. Right to legal representation .The applicant or appellant may either appear in person or
authorise one or more chartered accountants or company secretaries or cost accountants or legal
practitioners or any of its officers to present his or its case before the Appellate Tribunal or the Regulatory
Authority or the adjudicati ng officer, as the case may be .
Explanation .For the purposes of this section,
(a) chartered accountant means a chartered accountant as defined in clause ( b) of sub -section
(1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) or any other law for the time
being in force and who has obtained a certificate of practice under sub -sectio n (1) of section 6 of that
Act;
(b) company secretary means a company secretary as defined in clause ( c) of sub -section ( 1) of
section 2 of the Company Secretaries Act, 1980 (56 of 1980) or any other law for the time being in
force and who has obtained a certificate of practice under sub -sectio n (1) of section 6 of that Act;
(c) cost accountant means a cost accountant as defined in clause ( b) of sub-section ( 1) of
section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) or any other law for the time
29
being in force and who has obtained a certificate of practice under sub -section ( 1) of section 6 of that
Act;
(d) legal practitioner means an advocate, vakil or an attorney of any High Court, and includes a
pleader in practice.
57. Orders passed by Appellate Tribunal to be executable as a decree .(1) Every order made by
the Appellate Tribunal under this Act shall be executable by the Appe llate Tribunal as a decree of civil
court, and for this purpose, the Appellate Tribunal shall have a ll the powers of a civil court.
(2) Notwithstanding anything contained in sub -section ( 1), the Appellate Tribunal may transmit any
order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if
it were a decree made by the court.
58. Appeal to H igh Court .(1) Any person aggrieved by any decision or order of the Appellate
Tribunal, may, file an appeal to the H igh Court, within a period of sixty days from the date of
communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the
grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908) :
Provided that t he High Court may entertain the appeal after the expiry of the said period of sixty days,
if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
Explanation .The expression High Court means the High Co urt of a State or Union territory
where the r eal estate project is situated.
(2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent
of the parties.
CHAPTER VIII
OFFENCES, PENALTIES AND ADJUDICATION
59. Punishm ent for nonregistration under section 3 .(1) If any promoter contravenes the
provisions of section 3, he shall be liable to a penalty which may extend up to ten per cent. of the
estimated cost of the real estate project as determi ned by the Authority.
(2) If any promoter does not comply with the orders, decisions or directions issued under sub -section
(1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term
which may extend up to three years or with fine w hich may extend up to a further ten per cent. of the
estimated cost of the real estate project, or with both.
60. Penalty for contravention of section 4 .If any promoter provides false information or
contravenes the provisions of section 4, he shall be lia ble to a penalty which may extend up to five per
cent. of the estimated cost of the real estate project, as determined by the Authority.
61. Penalty for contravention of other provisions of this Act .If any promoter contravenes any
other provisions of this Act, other than that provided under section 3 or section 4, or the rules or
regulations made thereunder, he shall be liable to a penalty which may extend up to five per cent. of the
estimated cost of the real estate project as determined by the Authority.
62. Penalty for nonregistration and contravention under sections 9 and 10 .If any real estate
agent fails to comply with or contravenes the provisions of section 9 or section 10, he shall be liable to a
penalty of ten thousand rupees for every day during which such default continues, which may
cumulatively extend up to five per cent. of the cost of plot, apartment or building , as the case may be, of
the real estate project, for which the sale or purchase has been facilitated as determined by the Authority.
63. Penalty for failure to comply with orders of Authority by promoter .If any promoter, who
fails to comply with, or contravenes any of the orders or directions of the Authority, he shall be liable to a
penalty for every day during which such default continues, which may cumulatively extend up to five per
cent., of the estimated cost of the real estate project as determined by the Authority.
64. Penalty for failure to comply with orders of Appellate Tribunal by promoter .If any
promoter, who fails to c omply with, or contravenes any of the orders, decisions or directions of the
30
Appellate Tribunal , he shall be punishable with imprisonment for a term which may extend up to three
years or with fine for every day during which such default continues, which ma y cumulatively extend up
to ten per cent. of the estimated cost of the real estate project, or with both.
65. Penalty for failure to comply with orders of Authority by real estate agent .If any real estate
agent, who fails to comply with, or contravenes an y of the orders or directions of the Authority, he shall
be liable to a penalty for every day during which such default continues, which may cumulatively extend
up to five per cent., of the estimated cost of plot, apartment or building, as the case may be, of the real
estate project, for which the sale or purchase has been facilitated and as determined by the Authority.
66. Penalty for failure to comply with orders of Appellate Tribunal by real estate agent .If any
real estate agent, who fails to comply wit h, or contravenes any of the orders, decisions or directions of the
Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to one year
or with fine for every day during which such default continues, which may cumulative ly extend up to ten
per cent. of the estimated cost of plot, apartment or building, as the case may be, of the real estate project,
for which the sale or purchase has been facilitated, or with both.
67. Penalty for failure to comply with orders of Authorit y by allottee .If any allottee, who fails
to comply with, or contravenes any of the orders, decisions or directions of the Authority he shall be
liable to a penalty for the period during which such default continues, which may cumulatively extend up
to fiv e per cent. of the plot, apartment or building cost, as the case may be, as determined by the
Authority.
68. Penalty for failure to comply with orders of Appellate Tribunal by allottee .If any allottee,
who fails to comply with, or contravenes any of the orders or directions of the App ellate Tribunal, as the
case may be, he shall be punishable with imprisonment for a term which may extend up to one year or
with fine for every day during which such default continues, which may cumulatively extend up to ten per
cent. of the plot, apartment or building cost, as the case may be, or with both.
69. Offences by companies .(1) Where an Offence under this Act has been committed by a
company, every person who, at the time, the offence was committed was in charge of, or was responsible
to the company for the conduct of, the business of the company, as well as the company, shall be deemed
to be guilty of the offence and shall be liable to be proceeded ag ainst and punished accordingly:
Provided that nothing contained in this sub -section, shall render any such person liable to any
punishment under this Act if he proves that the offence was committed without his knowledge or that he
had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstandi ng anything contained in sub -section ( 1), where an offence under this Act has been
committed by a company, and it is proved that the offence has been committed with the consent or
connivance of, or is attributable to, any neglect on the part of any directo r, manager, secretary or other
officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty
of that offence and shall be liable to be proceeded ag ainst and punished accordingly.
Explanation .For the purpose o f this section,
(a) company means any body corporate and includes a firm, or other associat ion of individuals;
and
(b) director in relation to a firm, means a partner in the firm.
70. Compounding of offences .Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) , if any person is punished with |
Code of Criminal
Procedure, 1973 (2 of 1974) , if any person is punished with imprisonment under this Act, the punishment
may, either before or after the institution of the prosecution, be compounded by the court on such terms
and conditions and on payment of such sums as may be prescribed:
Provided that the sum prescribed shall not, in any case, exceed the maximum amount of the fine
which may be imposed for the offence so compounded.
71. Power to adjudicate .(1) For the purpose of adjudging compensation under sections 12, 14, 18
and section 19, the Authority shall appoint , in consultation with the appropriate Government , one or more
judicial officer as deemed necessary, who is or has been a District Judge to be an ad judicating officer for
31
holding an inquiry in the prescribed manner, after giving any person concerned a reasonable op portunity
of being heard:
Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and
section 19 i s pending before the Consumer Disputes Redressal Forum or the Consumer Disputes
Redressal Commission or the National Consumer Redressal Commission, established under section 9 of
the Consumer Protection Act, 1986 (68 of 1986) , on or before the commencement of this Act, he may,
with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending
before it and file an application before the adjud icating officer under this Act.
(2) The application for adjudging compensation under sub-section ( 1), shall be dealt with by the
adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days
from the date of receipt of the application:
Provided that where any such application could not be disposed of within the said period of sixty
days, the adjudicating officer shall record his reasons in writing for not disposing of the ap plication within
that period.
(3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the
attendance of any person acquainted with the facts and circumstances of the case to give evidence or to
produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to
the subject matter of the inquiry and if, on su ch inquiry, he is satisfied that the person has failed to comply
with the provisions of any of the sections specified in sub -section ( 1), he may direct to pay such
compensation or interest, as the case any be, as he thinks fit in accordance with the provis ions of any of
those sections.
72. Factors to be taken into account by the adjudicating officer .While adjudging the quantum
of compensation or interest, as the case may be, under section 71, the adjudicating officer shall have due
regard to the following factors, namely:
(a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, m ade as a
result of the default;
(b) the amount of loss caused as a result of the default;
(c) the re petitive nature of the default;
(d) such other factors which the adjudicating officer considers necessary to the case in furtherance
of justice.
CHAPTER IX
FINANCE, ACCOUNTS, AUDITS AND REPORTS
73. Grants and loans by Central Government .The Central Government may, after due
appropriation made by Parli ament in this behalf, make to the Authority grants and loans of such sums of
money as that Government may consider necessary.
74. Grants and loans by State Government .The State Government may, after due appropriation
made by State Legislature by law in this behalf, make to the Authority, grants and loans of such sums of
money as the State Government may think fit for being utilised for the purposes of this Act.
75. Cons titution of Fund .(1) The appropriate Government shall constitute a fund to be called the
'Real Estate Regulatory Fund and th ere shall be credited thereto,
(a) all Government gr ants received by the Authority;
(b) the fees received under this Act;
(c) the interest accrued on the amounts ref erred to in clauses ( a) to ( b).
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(2) The Fun d shall be applied for meeting
(a) the salaries and allowances payable to the Chairperson and other Members, the adjudicating
officer and the administrative expenses includin g the salaries and allowances payable to the officers
and other employees of the Author ity and the Appellate Tribunal;
(b) the other expenses of the Authority in connection with the discharge of its functions and f or
the purposes of this Act.
(3) The Fund shall be administered by a committee of such Members of the Authority as may be
determined by the Chairperson.
(4) The committee appointed under sub -section ( 3) shall spend monies out of the Fund for carrying
out the objects for which the Fund has been con stituted.
76. Crediting sums realised by way of penalties to Consolidated Fund of India or State
account .(1) All sums realised, by way of penalties, imposed by the Appellate Tribunal or the
Authority, in the Union territories , shall be credited to the Con solidated Fund of India.
(2) All sums realised, by way o f penalties, imposed by the App ellate Tribunal or the Authority, in a
State, shall be credited to such account as the State Government may specify.
77. Budget, accounts and audit .(1) The Authority shall prepare a budget, maintain proper
accounts and other relevant records and prepare an annual statement of accounts in such form as may be
prescribed by the appropriate Government in consultation with the Comptroll er and Auditor General of
India.
(2) The accounts of the Authority shall be audited by the Comptroller and Auditor General of India at
such intervals as may be specified by him and any expenditure incurred in connection with such audit
shall be payable by the Authority to the Comptroll er and A uditor General of India.
(3) The Comptroller and Auditor -General and any person appointed by him in connection with the
audit of the accounts of the Authority under this Act shall have the same rights and privileges and
authority in connection with such au dit as the Comptroller and Auditor General generally has in
connection with the audit of Government accounts and, in particular shall have the right to demand and
production of books, accounts, connected vouchers and other documents and papers, and to insp ect any o f
the offices of the Authority.
(4) The accounts of the Authority, as certified by the Comptroller and Auditor -General of India or any
other person appointed by him in this behalf, together with the audit report thereon shall be forwarded
annually to the appropriate Government by the Authority and the appropriate Government shall cause the
audit report to be laid, as soon as may be after it is received, before each House of Parliament or, as the
case may be, before the State Legislature or the Unio n territory Legislature, where it consists of two
Houses, or where such legislature consists of one House, before th at House.
78. Annual report .(1) The Authority shall prepare once in every year, in such form and at such
time as may be prescribed by the a ppropriate Government,
(a) a description of all the activities of the A uthority for the previous year;
(b) the annual acco unts for the previous year; and
(c) the programm es of work for the coming year.
(2) A copy of the report received under sub -section ( 1) shall be laid, as soon as may be after it is
received, before each House of Parliament or, as the case may be, before the State Legislature or the
Union Territory Legislature, where it consists of two Houses, or where such legislature consists of one
House, before that House.
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CHAPTER X
MISCELLANEOUS
79. Bar of jurisdiction .No civil court shall have jurisdiction to entertain any suit or proceeding in
respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is
empo wered by or under this Act to determine and no injunction shall be granted by any court or other
authority in respect of any action taken or to be taken in pursuance of any power conferred by or under
this Act.
80. Cognizance of offences .(1) No court shal l take cognizance of any offence punishable under
this Act or the rules or regulations made thereunder save on a complaint in writing made by the Authority
or by any officer of the Authority duly authorised by it for this purpose.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try any offence punishable under this Act.
81. Delegation .The Authority may, by general or special order in writing, delegate to any member,
officer of the Authority or an y other person subject to such conditions, if any, as may be specified in the
order, such of its powers and functions under this Act (except the power to make regulations under
section 85 ), as it may deem necessary.
82. Power of appropriate Government to supersede Authority .(1) If, at any time, the
appropriate Government is of the opinion,
(a) that, on account of circumstances beyond the control of the Authority, it is unable to discharge
the functions or perform the duties imposed on it by or under the provisions of this Act; or
(b) that the Authority has persistently defaulted in complying with any direction given by the
appropriate Government under this Act or in the discharge of the functions or performance of the
duties imposed on it by or under the provisions of this Act and as a result of such default the financial
position of the Authority or the administration of the Authority has suffered; or
(c) that circumstances exist which render it necessary i n the public interest so to do,
the appropriate Government may, by notification, supersede the Authority for such period, not exceeding
six months, as may be specified in the notification and appoint a person or persons as the President or the
Governor, as the case may be, may direct to exercise powers and discharge functions under this Act:
Provided that before issuing any such notification, the appropriate Government shall give a
reasonable opportunity to the Authority to make representations against the proposed supersession and
shall consider the rep resentat ions, if any, of the Authority.
(2) Upon the publication of a notification under sub -section (1) superseding the Authority,
(a) the Chairperson and other Members shall, as from the date of supersession , vacate their
offices as such;
(b) all the po wers, functions and duties which may, by or under the provisions of this Act, be
exercised or discharged by or on behalf of the Authority shall, until the Authority is reconstituted
under sub -section ( 3), be exercised and discharged by the person or person s refe rred to in
sub-section ( 1); and
(c) all properties owned or controlled by the Authority shall, until the Authority is reconstituted
under sub -section ( 3), vest in the appropriate Government.
(3) On or before the expiration of the period of supersession specified in the notification issued under
sub-section ( 1), the appropriate Government shall reconstitute the Authority by a fresh appointment of its
Chairperson and other members and in such case any person who had vacated his office under cl ause ( a)
of sub -section ( 2) shall not be deemed to be d isqualified for re -appointment.
(4) The appropriate Government shall cause a copy of the notification issued under sub -section ( 1)
and a full report of any action taken under this section and the circu mstances leading to such action to be
laid before each House of Parliament or, as the case may be, before the State Legislature, or the Union
34
Territory Legislature, as the case may be, where it consists of two Houses, or where such legislature
consists of one House, before that House.
83. Powers of appropriate Government to issue directions to Authority and obtain reports and
returns. (1) Without prejudice to the foregoing provisions of this Act, the Authority shall, in exercise of
its powers and in perform ance of its functions under this Act, be bound by such directions on questions of
policy, as the appropriate Government may give in w riting to it from time to time:
Provided that the Authority shall, as far as practicable, be given an opportunity to expres s its views
before any direction is give n under this sub -section.
(2) If any dispute arises between the appropriate Government and the Authority as to whether a
question is or is not a question of policy, the decision of the appropriate Government thereon shall be
final.
(3) The Authority shall furnish to the appropriate Government such returns or other information with
respect to its activities as the appropriate Government may, from time to time, require.
84. Power of appropriate Government to make rules .(1) The appropriate Government shall,
within a period of six months of the commencement of this Act, by notification, make rules for carrying
out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:
1[(a) the form, time and manner of making application and fees payable therewith under
sub-section ( 1) of section 4 ;
(ab) information and documents for application to the Authority for registration under clause ( m)
of sub -section ( 2) of section 4;
(ac) the form of application and the fees for extension of registration under section 6;]
(b) the form and manner of making application and fee and documents to be accompanied with
such application as unde r sub -section ( 2) of section 9;
(c) the period, manner and conditions under which the registration is to be granted unde r
sub-section ( 3) of section 9;
(d) the validity of the period of registration and the manner and fee for renewal unde r
sub-section ( 6) of section 9;
(e) the maintenance and preservation of books of account, records and documents under
clause ( b) of section 10;
(f) the discharge of other f unctions by the real estate agent under clause ( e) of section 10;
(g) the rate of int erest payable under section 12;
(h) the form and particulars of agreement for sale under sub-section ( 2) of section 13;
(i) the rate of interest payable under clause ( b) of sub -section ( 1) of section 18;
(j) the rate of interest payable under sub-section ( 4) of section 19;
(k) the rate of interest payable under sub-section ( 7) of section 19;
(l) the manner of selection of Chairperson and Members of Authority under section 2 2;
(m) the salaries and allowances payable to, and the other terms and conditions of service of, the
Chairperson and other Members of the Authority under sub-section ( 1) of section 24;
(n) the administrative powers of the Chairpersons under section 25;
1. Subs. by the Real Estate (Regulation and Development) Removal of Difficulties Order, |
1. Subs. by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347(E)] , for clause ( a)
(w.e.f. 28 -10-2016).
35
(o) the salaries and allowances payable to, and the other terms and conditions of service of, the
officers and other employees of the Authority under sub-section ( 2) of section 28;
1[(oa) the form, manner and fees for filing of a complaint under sub -section ( 2) of section 31;]
(p) the details to be published on the website as under clause ( b) and under clause ( d) of
section 34;
(q) the additional functions which may be performed by the Authority under clause ( iv) of
sub-section ( 2) of section 35;
(r) the mann er of recovery of interest, penalty and compensation under sub-section ( 1) of
section 40;
(s) the manner of implementation of the order, direction or decisions of the adjudicating officer,
the Authority or the Appellate Tribunal under sub -section ( 2) of s ection 40;
(t)recommendations received from the Central Advisory Council under sub-section ( 2) of
section 42;
(u) the form and manner and fee for fil ing of appeal under sub-section ( 2) of section 44;
(v) the manner of selection of Members of the Tribunal under sub-section ( 3) of section 46;
(w) the salaries and allowances payable to, and the other terms and conditions of service of, the
Chairperson and other Members of the Appellate Tribunal under sub-section ( 1) of section 48;
(x) the procedure for inquir y of the charges against the Chairperson or Judicial Member of the
Tribunal under sub-section ( 4) of section 49;
(y) the salaries and allowances payable to, and the other terms and conditions of service of, the
officers and employees of the Appellate Tribu nal under sub-section ( 3) of section 51;
(z) any other powers of the Tribunal under clause ( g) of sub-section ( 4) of section 53;
(za) the powers of the Chairperson of the Appel late Tribunal under section 54;
(zb) the terms and conditions and the payment of such sum for compounding of the offences
under section 70;
(zc) the manner of inquiry under sub-section ( 1) of section 71;
(zd) the form to be specified in which the Authority shall prepare a budget, maintain proper
accounts and other relevant records and prepare an annual statement of accounts under sub -section ( 1)
of section 77;
(ze) the form in which and time at which the Authority shall prepare an annual report under
sub-section ( 1) of section 78;
(zf) any other matter which is to be, or may be, prescr ibed, or in respect of which provision is to
be made, by rules.
85. Power to make regulations .(1) The Authority shall, within a period of three months of its
establishment, by notification, make regulations, consistent with this Act and the rules made the reunder to
carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may
provide for all or any of the following matters, namely:
2* * * * *
(c) such other information and documents required under clause ( f) of sub-section ( 1) of
section 11;
1. Ins. by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347(E)] ,
(w.e.f. 28 -10-2016).
2. Omitted by ibid. (w.e.f. 28 -10-2016).
36
(d) display of sanctioned plans, layout plans along with specifications, approved by the competent
authority, for display under clause ( a) of sub-section ( 3) of section 11;
(e) prep aration and maintenance of other details under sub-section ( 6) of section 11;
(f) time, places and the procedure in regard to transaction of business at the meetings of the
Authority under sub -section ( 1) of section 29;
1* * * * *
(h) standard fees to be levied on the promoter, the allottees or the real estate agent under
clause ( e) of section 34;
(i) any other matter which is required to be, or may be, specified by regulation or in respect of
which provision is to be made by regulations.
86. Laying of rules .(1) Every rule made by the Central Government, every regulation made by the
Authority under the Union territory of Delhi and the Union territories without Legislature and every
notification issued by the Central Government under this Act shall b e laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total period of thirty days which may
be comprised in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in making any
modification in the rule o r regulation or in the notification, as the case may be, or both Houses agree that
the rule or regulation or the notification sho uld not be made, the rule or regulation or notification, as the
case may be, shall thereafter have effect only in such modified form or be of no effect, as the case may
be; so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule or regulation or notification, as the case m ay be.
(2) Every rule made by a State Government or the Union territory Government, as the case may be,
every regulation made by the Authority under the St ate Government or 2[the Union territory Government
of Puducherry or the Union territory Government of Jammu and Kashmir] , as the case may be, and every
notification issued by the State Government or 2[the Union territory Government of Puducherry or the
Union territory Government of Jammu and Kashmir] , as the case may be, under this Act, shall be laid as
soon as may be, after it is made, before the State Legislature, or the Union territory Legislature, as the
case may be, where it consists of two Houses, or where such legislature consists of one House, before that
House.
87. Members, etc., to be public servants .The Chairperson, Members and other officers and
employees of the Authority, and the Appellate Tribunal and the adjudicating officer shall be deemed to be
public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860) .
88. Application of other laws not barred .The provisions of this Act shall be in addition to, and
not in derogation of, the provisions of any other law for the time being in force.
89. Act to have overriding effect .The provisions of this Act shall have effect, notwithstanding
anything inconsistent therewith contained in any other law for the time being in force.
90. Protection of action taken in good fai th.No suit, prosecution or other legal proceedings shall
lie against the appropriate Government or the Authority or any officer of the appropriate Government or
any member, officer or other employees of the Authority for anything which is in good faith do ne or
intended to be done under this Act or the rules or regulations made thereunder.
91. Power to remove difficulties .(1) If any difficulty arises in giving effect to the provisions of
this Act, the Central Government may, by order, published in the Offi cial Gazette, make such provisions
not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty:
Provided that no order shall be made under this section after the expiry of two years from the date o f
the commen cement of this Act.
1. Omitted by the Real Estate (Regulation and Development) Removal of Difficulties Order, 2016 [S.O. 3347 (E)] ,
(w.e.f. 28 -10-2016).
2. Subs. by the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Third Order, 2020, vide notification No. S.O.
3807 (E) dated (26-10-2020).
37
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each
House of Parliament.
92. Repeal .The Maharashtra Housing (Regulation and Development) Act, 2012 (Maharashtra Act
No. II of 2014) is hereby repealed. |
THE INDIAN INSTITUTES OF INFORMATION TECHNOLOGY
(PUBLIC -PRIVATE PARTNERSHIP) ACT, 2017
NO. 23 OF 2017
[9th August, 2017.]
An Act to declare certain Indian Institutes of Information Technology established under public -private
partnership as institutions of national importance, with a view to develop new knowledge in
information technology and to provide manpower of global standards for the information technology
industry and to provide for certa in other matters connected with such institutions or incidental
thereto.
BE it enacted by Parliament in the Sixty -eighth Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1. Short title and commencement .(1) This Act may be called the Indian Institutes of Information
Technology (Public -private Partnership) Act, 2017.
(2) It shall come into force on such date1 as the Central Government may, by notification in the
Official Gazette, appoint.
2. Declaration of certain institutions as institutions of national importance .Whereas the objects of
the Institutes mentioned in the Schedule are such as to make them institutions of national importance, it is
hereby declared that each such Institute is an institution of national importance.
3. Definitions .In this Act, unless the context otherwise requires,
(a) appointed day means the date of establishment of the Institutes established under
sub-section ( 2) of section 4;
(b) Board , in relation to any Institute, means the Board of Governors referred to in
sub-section ( 1) of section 14;
(c) Chairperson means the Chairperson of the Board appointed under sub -section ( 2) of
section 14;
(d) Co-ordination Forum means the Co -ordination Forum established under sub -section ( 1) of
section 38;
(e) Director means the Director of the Institute;
(f) existing Institute means the Institute mentioned in column (3) of the Schedule;
(g) industry partner means an individual, or a trust established under the Indian Trusts Act, 1882,
(2 of 1882) or a company established under the Companies Act, 2013 (18 of 2013) or society formed
and registered under the S ocieties Registration Act, 1860 (21 of 1860 ) or a fi nancial institution or a
combination of one or more of such industry partners;
(h) Institute means any of the institutions mentioned in column (5) of the Schedule and such
other Institutes established under section 11;
(i) notification means a notification published in the Official Gazette and the expression
notify shall be construed accordingly;
(j) prescribed means prescribed by rules made under this Act;
(k) public -private partnership means such partnership under a scheme of th e Central
Government which provides for establishment of Institute involving collaboration between the
Central Government, the State Government and industry partners;
(l) Schedule means the Schedule to this Act;
(m) Senate , in relation to any Institute, means the Senate thereof;
1. 6th September, 2017 vide notification No. S.O. 2928(E) dated the 6 September, 2017, see Gazette of India, Extraordinary,
Part II, sec. 3( ii).
4
(n) Statutes and Ordinances , in relation to any Institute, mean the Statutes and Ordinances of
the Institute made under this Act.
CHAPTER II
THE INSTITUTES
4. Incorporation of Institutes .(1) On and from the commencement of this Act, every existing
Institute, shall be a body corporate by the same name as mentioned in column ( 5) of the Schedule.
(2) On and from the appointed day, any other Institute of Information Technology as may be
established under section 11 shall be a body corporate by such name as the Central Government may, by
notification, specify.
(3) Every existing Institute or any Institute established under sub -section ( 2) shall have perpetual
succession and a common seal, with power, subje ct to the provisions of this Act, to acquire, hold and
dispose of property, both movable and immovable, and to contract, and shall, by its name, sue or be sued .
5. Effect of incorporation of Institutes. On and from the date of commencement of this Act,
(a) any reference to any existing Institute in any contract or other instrument shall be deemed to be
reference to the corresponding Institute mentioned in column (5) of the Schedule;
(b) all properties, movable and immovable, belonging to every existing Institute shall vest in the
corresponding Institute mentioned in column (5) of the Schedule ;
(c) all rights, debts and other liabilities of every existing Institute shall be transferred to, and be the
rights and liabilities of, the corresponding Institute mentioned in column (5) of the Schedule;
(d) every person employed by any existing Institute, immediately before such commencement, shall hold
his office or service in the corresponding Institute mentioned in column (5) of the Schedule, with the same
tenur e, at the same remuneration and upon the same terms and conditions and with the same rights and
privileges as to pension, leave, gratuity, provident fund and other matters as he would have held the same if
this Act had not been enacted and shall continue t o do so unless and until his employment is terminated or
until such tenure, remuneration and the terms and conditions are duly altered by the Statutes:
Provided that if the alteration so made is not acceptable to such employee, his employment may be
termin ated by the Institute in accordance with the terms of the contract with the employee or, if no
provision is made therein in this behalf, on payment to him by the Institute of compensation equivalent
to three months' remuneration in the case of permanent em ployees and one month's remuneration in
case of other employees:
Provided further that any reference, by whatever form of words, to the Director, Registrar and other
officers of any existing Institute, in any law for the time being in force, or in any inst rument or other
document, shall be deemed to be reference to the Director, Registrar and other officers of the
corresponding Institute mentioned in column (5) of the Schedule;
(e) every person pursuing, before the commencement of this Act, any academic or research course in
any existing Institute, shall be deemed to have migrated and registered with the corresponding Institute
mentioned in column (5) of the Schedule, on such commencement at the same level of course in the
Institute from which such person mi grated;
(f) all suits and other legal proceedings instituted or which could have been instituted by or against an
existing Institute, immediately before the commencement of this Act, shall be continued or instituted by
or against the corresponding Institut e mentioned in column (5) of the Schedule.
6. Objects of Institute. Every Institute shall have the following objectives, namely:
(a) to emerge amongst the foremost institutions in information technology and allied fields of
knowledge in the global context;
(b) to advance new knowledge and innovation in information technology and allied fields to
empower the nation to the forefront in the global context;
5
(c) to develop competent and capable youth imbued with the spirit of innovation and
entrepreneurs hip with the social and environmental orientation to meet the knowledge needs of the
country and provide global leadership in information technology and allied fields;
(d) to promote and provide transparency of highest order in matters of admission, appoin tment to
various positions, academic evaluation, administration and finance.
7. Powers and functions of Institute. (1) Subject to the provisions of this Act, every Institute shall
exercise the following powers and perform the following functions, namely:
(a) to provide instructions in such fields of knowledge relating to information technology and
allied areas as the Institute may deem fit, for the advancement of learning and dissemination of
knowledge;
(b) to lead, organise and conduct research and innova tion in information technology and allied
fields of knowledge in such manner as the Institute may deem fit, including in collaboration or in
association with any other Institute, educational institution, research organisation, body corporate or
financial o rganisations at national or global level;
(c) to hold examinations and grant degrees, diplomas and other academic distinctions or titles and
to confer honorary degrees;
(d) to create academic, administrative, technical, ministerial and other posts under the Institute
other than the post of Director of the Institute and to make appointments thereto;
(e) to appoint persons working in any other Institute or educational institution or involved in
research of significance in any industry as adjunct, guest or v isiting faculty of the Institute on such
terms and for such duration as the Institute may decide;
(f) to create administrative and other posts and to make appointments thereto on the basis of
criteria as may be decided by the Board;
(g) to make provision f or dissemination of knowledge emerging from research and for that purpose
to enter into such arrangements, including consultancy and advisory services, with other institutions,
industry, civil society or other organisations, as the Institute may deem neces sary;
(h) to create a website, highlight all information not restricted to those related to students,
admission, fee, administrative structure, policies including recruitment rules, faculty and non -faculty
posts, annual reports and financial details includ ing statement of account of the Institute;
(i) to determine, specify and receive payment of fees and other charges, as the Institute may deem
fit, from students and any other person, institution or body corporate for instructions and other
services, includ ing training, consultancy and advisory services, provided by the Institute;
(j) to deal with any property belonging to, or vested in, the Institute in such manner as the Institute
may deem fit for advancement of the objectives of the Institute:
Provided that no land or other immovable property shall be disposed of by the Institute without
the prior approval of the concerned State Government and the Central Government;
(k) to receive gifts, grants, donations or benefactions from the Government and to recei ve
bequests, donations and transfer of movable or immovable properties from testators, donors or
transferors, as the case may be;
(l) to co -operate with educational or other institutions in any part of the world having objects
wholly or partly similar to t hose of the Institute by exchange of teachers and scholars and generally in
such manner as may be conducive to their common objects;
(m) to establish and maintain such infrastructure as may be necessary, incidental or conducive to
the attainment of the obj ectives of the Institute;
(n) to institute and award fellowships, scholarships, exhibitions, prizes and medals; and
(o) to do all such things as may be necessary, incidental or conducive to the attainment of all or
any of the objectives of the Institute.
6
(2) Subject to the provisions of this Act, every Institute may take up the following works, namely:
(a) supporting and collaborating with educational Institutes imparting technical or information
technology courses located in the zone or region;
(b) advisi ng the State Governments and Union territory Administrations included in its zone in
matters of information technology and other technological issues referred by them to the Institute for
advice.
8. Institutes to be open to all races, creeds and classes .(1) Every Institute shall be open to all
citizens irrespective of gender, caste, creed, disability, domicile, ethnicity, social or economic
background.
(2) No bequest, donation or transfer of any property shall be accepted by any Institute which in the
opinion of the Co -ordination Forum involves conditions or obligations opposed to the spirit and object of
this section.
(3) Admissions to every programme of study in each Institute shall be based on merit assessed
through transparent and reasonable criteria di sclosed through its prospectus, prior to the commencement
of the process of admission by such Institute:
Provided that every such Institute shall be a Central Educational Institution for the purposes of the
Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) .
9. Teaching at Institute .All teaching at each of the Institute shall be conducted by or in the name
of the Institute in accordance with the Statutes and Ordinances made in this behalf.
10. Institute to be a distinct legal entity not -for-profit . (1) Every Institute shall be a not -for-profit
legal entity and no part of the surplus, if any, in revenue of such Institute, after meeting all expenditure in
regard to its operations under this Act, shall be invested for any purpose other than for the growth and
development of such Institute or for conducting research therein.
(2) Every Institute shall strive to raise funds for creation of a corpus for self -sufficiency, sustainability
and future development of the Institute.
11. Establishment of Institute by Central Government, State Government and industry
partners. (1) The State Government shall identify at least one industry partner, and preferably three industry
partners, for collaboration and submit a proposal to the Cent ral Government.
(2) The Central Government shall examine the proposal on the basis of such criteria, as may be
prescribed, which shall include the following, namely:
(a) the investment of capital required for establishing the proposed Institute to be born e by the
Central Government, the concerned State Government and industry partners in the ratio 50:35:15 and
recurring expenditure, as may be considered necessary during the first five years of operation, to be
made available by the Central Government:
Provided that the ratio of investment of capital required for establishing the proposed Institute in
North Eastern States shall be 57.5:35:7.5;
(b) the expertise and standing of the industry partners proposed in sub -section ( 1) in the field of
information technology;
(c) the assessment of the capability, financial and other resources of industry partners to support
the Institute;
(d) the suitability of adequate land, to the extent of fifty to hundred acres, to be provided by the
State Government free of cost;
(e) the availability of, or the commitment of the State Government to make available, adequate
physical infrastructure namely, water, electricity, road connectivity and security, at the proposed site.
(3) The Central Government may, with the concurre nce of the concerned State Government, suggest
modifications, if any, to the proposal submitted to it under sub -section ( 1).
7
(4) Where a proposal submitted by the State Government under sub -section ( 1) is not acceptable to the
Central Government, the Cent ral Government shall communicate its decision to that State Government,
specifying the reasons for such decision.
(5) The Central Government shall, on acceptance of the proposal with modifications, if any, under
sub-section ( 3), enter into a memor andum of understanding or an agreement with the concerned State
Government and the industry partners for the establishment of the proposed Institute.
(6) The industry partner shall
(a) actively participate in the governance of the Institute within the overall framework;
(b) support and facilitate joint research projects with the Indian Institutes of Information Technology
either through funding, collaboration or in any other manner;
(c) depute experienced individuals as adjunct faculty;
(d) encourage, e nable, support and mentor students to do research project as a part of their course
curriculum, within their enterprise;
(e) accept faculty members of the Indian |
do research project as a part of their course
curriculum, within their enterprise;
(e) accept faculty members of the Indian Institutes of Information Technology on a sabbatical to
work for short period with the industr y;
(f) co-create programs as per the requirements of the industry with the Institution;
(g) provide internship to students of the Indian Institutes of Information Technology;
(h) facilitate for placement of students from the Indian Institutes of Information Technology;
(i) sponsor their eligible employees for doctorate studies in the Indian Institutes of Information
Technology; and
(j) fund and mentor the startups in the Institution.
(7) Every memorandum of understanding or agreement referred to in sub -section ( 5) shall contain
(a) the investment proposal of capital in establishment of the Institute and the respective shares as
may be prescribed;
(b) the first Statutes of the Institute;
(c) the commitment of the Central Government, the concerned State Government, and the
industry partner in ensuring autonomy to the proposed Institute; and
(d) the conditions, if the industry partners pulls out.
CHAPT ER III
AUTHORITIES OF INDIAN INSTITUTES OF INFORMATION TECHNOLOGY
ESTABLISHED IN PUBLIC -PRIVATE PAR TNERSHIP
12. Visitor. (1) The President of India shall be the Visitor of every Institute.
(2) The Visitor may appoint one or more persons to review the work and progress of any Institute and
to hold inquiries into the affairs thereof and to report thereon in such manner as the Visitor may direct.
(3) Upon receipt of any such report, the Visitor may take such action and issue such directions as
he considers necessary in respect of any of the matters dealt within the report and the Institute shall be
bound to comply with such directions within a reasonable time.
13. Authorities of Institute. The following shall be the authorities of an Institute, namely:
(a) Visitor;
(b) Board of Governors;
(c) Senate;
(d) Finance Committee;
8
(e) such other authorities or posts as may be declared by the Statutes to be the authorities of the
Institute.
14. Board of Governors .(1) The Board of Governors of each Institute shall be the principal policy
making and executive body of the Institute.
(2) The Board shall consist of the following members, namely:
(a) Chairperson, an eminent technologist or industrialist or educationist to be nominated by the
Visitor on the recommendation of the Central Government;
(b) one nominee each of the Central Government and the concerned State Government;
(c) three eminent persons, of which at least one shall be a woman, appointed by the Board out of
industry, research laboratories, and civil society, one from each category;
(d) two eminent academicians appointed by the Board;
(e) one nominee r epresenting each of the industry partners:
Provided that if there are more than two industry partners then the number of representatives of
industry partners at any time would be limited to two, chosen amongst themselves by rotation every
two years;
(f) Director of an Indian Institute of Technology or a National Institute of Technology located in
the region, to be nominated by the Board;
(g) two members from the faculty of the Institute, preferably one Professor and one
Associate/Assistant Professor, to b e nominated by the Senate;
(h) one person from the Scheduled Castes or the Scheduled Tribes distinguished in the field of
education or industry or social service or public service, to be nominated by the Board, in case any of the
above do not belong to the Scheduled Castes or the Scheduled Tribes; and
(i) Director of the Institute, ex officio.
(3) Registrar of the concerned Institute shall be the ex officio non-member Secretary of the Board.
(4) The First Board of Governors shall be notified by the Central Government by obtaining nominations
under sub -section ( 2), other than the members referred to in clauses ( c), (d), (f) and ( h), which shall be
decided in the first meeting of the Board of Governors.
15. Term of office of , vacancies among and allowances pay able to, members of Board. (1) Save
as otherwise provided in this section, the term of office of the Chairperson or any other member of the
Board, other than an ex officio member, shall be for a period of three years from the date of nomination.
(2) The term of office of an ex officio member shall continue so long as the member holds the office
by virtue of which he is a member.
(3) A member of the Board, other than an ex officio member, who fails to attend three consecutive
meetings of the Board wi thout the leave of absence, shall cease to be a member of the Board.
(4) One-third of the members of the Board shall form a quorum of the Board, provided at least three
members are from members referred to in clauses other than clauses ( e), (g) and ( i) of sub-section ( 2) of
section 14.
(5) The members of the Board shall be entitled to such allowances, as may be laid down in Statutes, for
attending meetings of the Board or as may be convened by the Institute.
16. Resignation of Chairperson. (1) The Chairperson may, by writing under his hand addressed to
the Visitor, resign his office.
(2) Any member of the Board, except ex officio members, may, by writing under his hand addressed
to the Chairperson, resign his office.
17. Powers and functions of Board. (1) Subject to the provisions of this Act, the Board shall be
responsible for the general policy making, superintendence, providing direction and shall have the power
to frame, amend, modify or rescind the Statutes and the Ordinances governing the affairs of the Institute
to achieve the objectives specified in section 6.
9
(2) Without prejudice to the provisions of sub -section ( 1), the Board shall have the following powers,
namely:
(a) to decide questions of policy relating to the Institute;
(b) to establish departments, faculties or schools of studies and initiate programmes or courses of
study at the Institute;
(c) to examine and approve the annual budget estimates of the Institute;
(d) to examine and approve the plan for development of the Institu te and to identify sources of
finance for implementation of the plan;
(e) to create teaching, academic, administrative, technical and other posts and to make
appointments thereto;
(f) to provide by the Statutes, the qualifications, criteria and processes f or appointment to teaching
and other posts in the Institute;
(g) to approve fees and other charges payable for pursuit of studies, courses or programmes in the
Institute;
(h) to make Statutes, subject to provisions of section 32, governing the administration,
management and operations of such Institute;
(i) to grant degrees, diplomas and other academic distinctions or titles, and to institute and award
fellowships, scholarships, prizes and medals; and
(j) to exercise such other powers and perfor m such other duties as may be conferred or imposed
by this Act or the Statutes.
(3) The Board may, subject to the provisions of this Act and the Statutes, delegate such powers and
functions to the Senate or the Director, as the Board may deem fit.
(4) The Board shall put in place policies to make the Institute self -sustaining within a period of five
years.
(5) The Board shall periodically conduct a review of the performance of the Director with specific
reference to the leadership in the achievement of the objectives of the Institute.
(6) The Board shall in exercise of the powers and discharge of functions strive to provide autonomy
in academic matters to the Senate and departments of faculties or schools, as the case may be.
(7) Wherein the opinion of the Director or the Chairperson, the situation is so emergent that an
immediate decision needs to be taken in the interest of the Institute, the Chairperson, in consultation with
the Director, may issue such orders as may be necessary, recording in writing the grounds for the opinion:
Provided that such orders shall be submitted for ratification of the Board in the next meeting.
18. Senate. (1) The Senate of every Institute shall consist of the following persons, namely:
(a) the Director of the Institute who shall be the ex officio Chairperson of the Senate;
(b) all Deans, ex officio ;
(c) heads of all departments, faculties or schools, ex officio , as the case may be, of the Institute;
(d) all full -time professors other than th e Deans or heads of the Departments;
(e) three persons from amongst educationists of repute or persons from another field related to the
activities of the Institute who are not in service of the Institute, nominated by the Board;
(f) three persons who are not members of teaching staff co -opted by the Senate for their
specialised knowledge; and
(g) Registrar of the Institute, ex officio Secretary.
(2) The term of office of members nominated under clauses ( e) and ( f) shall be for a period of two
years from th e date of nomination.
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(3) The term of office of an ex officio member shall continue so long as the member holds the office
by virtue of which he is a member.
19. Powers and functions of Senate. (1) Subject to the provisions of this Act, the Statutes and the
Ordinances, the Senate shall be the principal academic body of the Institute and shall have the power to
enact, amend or modify the Ordinances governing academic matters and the affairs and well -being of
students.
(2) Without prejudice to the provision s of sub -section ( 1), the Senate shall have the following powers,
namely:
(a) to specify the criteria and procedure for admission to courses or programmes of study offered
by the Institute;
(b) to recommend to the Board creation of teaching and other acad emic posts, determination of
the number and emoluments of such posts and defining the duties and conditions of service of
teachers and other academic posts;
(c) to recommend to the Board about starting of new programmes or courses of study;
(d) to specify the broad academic content of programmes and courses of study and undertake
modifications therein;
(e) to specify the academic calendar and approve grant of degrees, diplomas and other academic
distinctions or titles;
(f) to appoint examiners, moderators, tabulators and such other personnel for different
examinations;
(g) to recognise diplomas and degrees of Universities and other Institutes and to determine
equivalence with the diplomas and degrees of the Institute;
(h) to suggest measures for departmental co-ordination;
(i) to make major recommendations to the Board of Governors on
(A) measures for improvement of standard of teaching, training and research;
(B) institution of chairs, fellowships, s cholarships, studentships, free ships, medals and prizes
and other related matters;
(C) establishment or abolition of departments or centres; and
(D) academic functioning of the Institute, discipline, residence, admissions, examinations,
award of fellowships and studentships, freeships, concessions, attendance and other related
matters;
(j) to appoint sub -committees to advise on such specific matters as may be referred to by the Board
or by itself;
(k) to consider the recommendations of the sub -committees and to take such action including
making of recommendations to the Board as may be required;
(l) to take periodical review of the activities of the departments or centres and to take appropriate
action including making of recommendations to the Board with a view to maintain and improve the
standards of instructions , in the institutions; and
(m) to exercise such other powers and discharge such other functions as may be assigned to it, by
Statutes or otherwise, by the Board.
20. Finance Committee. (1) The Finance Committee of each Institute shall consist of the follow ing
persons, namely:
(a) the Chairperson of the Board shall be the ex officio Chairperson of the Committee;
11
(b) one representative of the Government of India, Ministry of Human Resource Development,
Department of Higher Education handling the matters relating to finance, ex officio ;
(c) one representative of the State Government in which the Institute is located, ex officio ;
(d) one representative of the industry partners chosen from amongst themselves;
(e) the Director, ex officio ; and
(f) the officer in -charge of finance and accounts of the Institute, ex officio Secretary.
(2) The members of the Finance Committee other than ex officio members shall hold office for a term
of three years.
21. Powers and functions of Finance Committee. The Finance Committee shall examine the accounts,
scrutinise proposals for expenditure and fina ncial estimates of the Institute and thereafter submit it to the
Board together with its comments for approval.
22. Meetings. (1) The Chairperson shall ordinarily preside over the meetings of the Board, Finance
Committee and at the convocations of the Inst itute.
(2) It shall be the duty of the Chairperson to ensure that the decisions taken by the Board are
implemented.
(3) The Chairperson shall exercise such other powers and perform such other duties as may be
assigned to him by this Act or the Statutes.
23. Director. (1) The Director shall be the principal executive officer of the Institute and shall be
responsible for implementation of the decisions of the Board and Senate and for day -to-day
administration of the Institute.
(2) The Director shall be appointed by the Visitor, on such terms and conditions of service as may be
laid down by the Statutes.
(3) The Director shall be appointed out of the panel of names recommended by a search -cum-
selection committee consisting of
(a) Chairperson of the Board , who shall be the Chairperson of the search -cum-selection
committee;
(b) two members, nominated by the Board, from amongst eminent administrators, industrialists,
educationists, scientists, technocrats and management specialists;
(c) nominee of the State Government in which the Institute is located;
(d) nominee of one of the industry partners by rotation;
(e) head of the Bureau, Ministry of Human Resource Development dealing with Indian Institutes
of Information Technology Member Secretary, ex officio ;
(4) The Director shall exercise the powers and perform the duties as may be assigned under this Act or
the Statutes or Ordinances, or as may be delegated by the Board.
(5) The Director shall, except on account of resignation or removal, hold office for a peri od of five
years from the date of assumption of charge as Director.
(6) The Director may, by writing under his hand addressed to the Chairperson, resign his office.
(7) The Visitor may remov e from office the Director, who
(a) has been adjudged as insolven t; or
(b) has been convicted of an offence which, in the opinion of the Visitor, involves moral
turpitude; or
(c) has become physically or mentally incapable of acting as a Director; or
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(d) has acquired such financial or other interest as is likely to affe ct prejudicially the functions as
a Director; or
(e) has so abused the position or so conducted as to render the continuance in office prejudicial to
the public interest:
Provided that the Director shall not be removed from office except by an order made by the Visitor,
after an enquiry instituted by the Board, in which the Director has been |
be removed from office except by an order made by the Visitor,
after an enquiry instituted by the Board, in which the Director has been informed of the charges and given
a reasonable opportunity of being heard in respect of those charges.
(8) The Board shall initiate the process of appointment in respe ct of any vacancy due to arise for the
post of Director on completion of tenure before a period of six months from the date of arising of such
vacancy and that the process of appointment shall be completed before such vacancy arises.
(9) Where the post of Director falls vacant on account of any reason other than completion of tenure,
the process of appointment shall be initiated by the Board within one month of such vacancy and process
shall be completed as early as possible.
24. Registrar. (1) The Registra r of every Institute shall be appoint ed on such terms and conditions
as may be laid down by the Statutes.
(2) The Registrar shall exercise such powers and perform such duties as may be assigned to him by
the Statutes or by the Director.
(3) The Registrar s hall be responsible to the Director for the proper discharge of his functions.
25. Review of performance of Institute .(1) The Institute shall, within five years from the
date of establishment and incorporation under this Act and thereafter at the expiration of every fifth
year, constitute, with the prior approval of the Board, a review committee or shall appoint an agency as a
third party to evaluate the performance of the Institute and its achieve ments with respect to its objectives
during the said period.
(2) The review committee constituted under sub -section ( 1) shall consist of members of repute in
academia or industry, from relevant fields of teaching, learning and research in such Institute.
(3) The third party agency appointed under sub -section ( 1) shall have past experience of conducting
such evaluations.
(4) The review committee or the third party agency, as the case may be, shall assess the performance
of Institute and shall submit its repo rt with recommendations on
(a) the extent of fulfilment of the objects of the Institute mentioned in section 6, as demonstrated
by the state of teaching, learning and research, and its contribution to the society;
(b) the promotion of transformational res earch and its impact on industry and society;
(c) the advancement of fundamental research beyond the current frontiers of knowledge;
(d) the establishment of the Institute as amongst the global leaders in the area of information
technology;
(e) such other parameters as the Board may consider necessary and specify.
(5) The Board shall place the report of the review committee or the third party agency in the public
domain and on its website and consider the recommendations referred to in sub -section ( 3) and t ake such
action as it may deem fit:
Provided that the recommendations of the review committee or the third party agency along with an
explanatory memorandum on the action taken or proposed to be taken, specifying the reasons thereof,
shall be submitted to the Central Government.
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CHAPTER IV
ACCOUNTS AND AUDIT
26. Grants by Central Government and State Governments. (1) For the purposes of enabling the
Institute to discharge their functions efficiently under this Act, the Central Government and the State
Government may, after due appropriation made by the Parliament and the concerned State Legislature, as
the case may be, by law in this behalf, pay to each Institute in every financial year such sums of money in
such manner as is required to fulfil their ob ligations under section 11.
(2) The Central Government and the concerned State Government shall provide to each Institute,
grants of such sums of money as are required to meet the expenditure on scholarships or fellowships
instituted by it, including schol arships or fellowships for students from socially and educationally
backward classes of citizens enrolled in such Institute.
27. Fund of Institute .(1) Every Institute shall maintain a Fund to which shall be credited
(a) all monies provided by the Central Government or the State Government or industry partner,
as the case may be;
(b) all fees and other charges received by the Institute from students;
(c) all monies received by the Institute by way of grants, gifts, donations, benefactions, bequests
or transfers;
(d) all monies received by the Institute from utilisation of intellectual property arising from
research conducted or provision of advisory or consultancy services by it; and
(e) all monies received by the Institute in any other manner or from a ny other source.
(2) The Fund of every Institute shall be applied towards meeting the expenses of the Institute
including expenses incurred in the exercise of its powers and discharge of its duties under this Act,
furtherance of research in the Institute o r in collaboration with other educational institutions or industry
and for capital investment aimed at the growth and development of the Institute.
(3) All monies credited to the Fund of every Institute shall be deposited in such banks or invested in
such manner as the Institute may, with approval of the Board, decide.
(4) Each Institute shall create a corpus fund for long term sustainability of the Institute, to which shall
be credited such per cent. of the net income of the Institute and donations made sp ecifically towards such
corpus fund as the Central Government may, in accordance with the provisions of the Inco me-tax Act,
1961 (43 of 1961) , notify:
Provided that the Board may also create endowment funds for specific purpose to which donations
may be s pecifically made.
28. Accounts and audit. (1) Every Institute shall maintain proper accounts and other relevant
records and prepare annual statement of accounts including the balance sheet in such form and accounting
standard as may be specified by notific ation, by the Central Government in consultation with the
Comptroller and Auditor -General of India.
(2) Where the statement of income and expenditure and the balance sheet of the Institute do not
comply with the accounting standards, the Institute shall di sclose in its statement of income and
expenditure and balance sheet, the following, namely:
(a) the deviation from the accounting standards;
(b) the reasons for such deviation; and
(c) the financial effect, if any, arising out due to such deviation.
(3) The accounts of every Institute shall be audited by the Comptroller and Auditor -General of India or
any other person in accordance with the provisions of the extant rules and any expenditure incurred by audit
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team in connection with such audit shall be p ayable by the Institute to the Comptroller and Auditor -General
of India or such person.
(4) The Comptroller and Auditor -General of India and any person appointed in connection with the audit
of the accounts of any Institute shall have the same rights, priv ileges and authority in connection with such
audit as the Comptroller and Auditor -General of India has in connection with the audit of the Government
accounts and, in particular shall have the rights to demand the production of books, accounts, connected
vouchers and other documents and papers and to inspect the offices of the Institute.
(5) The accounts of every Institute as certified by the Comptroller and Auditor -General of India or
any other person appointed in this behalf together with the audit report thereon shall be forwarded
annually to the Central Government.
29. Pension and provident fund. Every Institute may constitute for the benefit of its employees
such provident or pension fund or provide such insurance scheme as it may deem fit in such manne r and
subject to such conditions as may be laid down by the Statutes.
30. Appointments. All appointments of the staff of every Institute, except that of the Director, shall
be made in accordance with the procedure laid down in the Statutes.
31. Statu tes.Subject to the provisions of this Act, the Statutes may provide for all or any of the
following matters, namely:
(a) the formation of departments of teaching;
(b) the institution of fellowships, scholarships, exhibitions, medals and prizes;
(c) the terms of office and the method of appointment of officers of the Institute;
(d) the qualifications of teachers of the Institute;
(e) the classification, method of appointment and the determination of the terms and conditions of
service of teachers and other staf f of the Institute;
(f) the constitution of pension, insurance and provident funds for the benefit of the officers,
teachers and other staff of the Institute as per the provisions existing from time to time;
(g) the constitution, powers and duties of the a uthorities of the Institute;
(h) the establishment and maintenance of halls and hostels;
(i) the conditions of residence of students of the Institute and the levying of fees for residence in
the halls and hostels and of other charges;
(j) the allowances to be paid to the Chairperson and members of the Board;
(k) the authentication of the orders and decisions of the Board;
(l) the meetings of the Board, the Senate, or any committee, the quorum at such meetings and the
procedure to be followed in the conduct of their business; and
(m) any other matter as may be considered necessary for the efficient functioning of the Institute.
32. Statu tes how to be made .(1) The first Statute of each Institute shall be framed by the Board
with the prior approval of the Visitor.
(2) The Board may, from time to time, make new or additional Statutes or may amend or repeal the
Statutes.
33. Ordinance. Subject to the provisions of this Act and the Statutes, the Ordinances of every
Institute may provide for all or any of the f ollowing matters, namely:
(a) the admission of the students to the Institute;
(b) the courses of study to be laid down for all degrees and diplomas of the Institute;
(c) the conditions under which students shall be admitted to the degree or diploma course s and to
the examinations of the Institute, and shall be eligible for degrees and diplomas;
15
(d) the conditions of award of the fellowships, scholarships, exhibitions, medals and prizes;
(e) the conditions and mode of appointment and duties of examining bodies, examiners and
moderators;
(f) the conduct of examinations;
(g) the maintenance of discipline among the students of the Institute; and
(h) any other matter which by this Act or the Statutes is to be or may be provided for by the
Ordinances.
34. Ordinance how to be made .(1) Save as otherwise provided in this section, Ordinances shall be
made by the Senate.
(2) All Ordinances made by the Senate shall have effect from such date as it may direct, but every
Ordinance so made shall be submitted, as so on as may be, to the Board and shall be considered by the
Board at its next meeting.
(3) The Board shall have power by resolution to modify or cancel any such Ordinance and such
Ordinance shall from the date of such resolution stand modified accordingly or cancelled, as the case may
be.
35. Tribunal of Arbitration. (1) (a) Any dispute arising out of a contract between an Institute and any
of its employees shall, at the request of the employee concerned or at the instance of the Institute, be referred
to a Tribunal of Arbitration consisting of one member appointed by the Institute, one member nominated by
the employee, and an umpire appointed by the Visitor.
(b) The decision of the Tribunal shall be final and shall not be questioned in any court.
(c) No suit or proceeding shall lie in any court in respect of any matter, which is required by
sub-section ( 1) to be referred to the Tribunal of Arbitration.
(d) The Tribunal of Arbitration shall have power to regulate its own procedure:
Provided that the Tribunal shall have regard to the principles of natural justice while making such
procedure.
(e) Nothing in any law for the time being in force relating to arbitration shall apply to arbitrations
under this section.
(2) Any student or candidate for an exam ination whose name has been removed from the rolls of the
Institute by the orders or resolution of the Director of the Institute and who has been debarred from
appearing at the examinations of the Institute for more than one year, may within ten days of th e date of
receipt of such resolution by him, appeal to the Board who may confirm, modify or reverse the decision
of the Director.
(3) Any dispute arising out of any disciplinary action taken by the Institute against a student shall, at
the request of such student, be referred to a Tribunal of Arbitration and the provisions of sub -section ( 1)
shall, as far as may be, apply to a reference made under this sub -section.
(4) Every employee or student of the Institute, notwithstanding anything contained in this Ac t, have a
right to appeal within such time as may be laid down by the Statutes, to the Board of Governors against
the decision of any officer or authority of the Institute, as the case may be, and thereupon the Board may
confirm, modify or reverse the deci sion appealed against.
36. Annual report of Director. (1) There shall be attached to every statement of accounts laid
before the Board of each Institute, a report by its Director, with respect to
(a) the state of affairs of such Institute;
(b) the amount, if any, which it proposes to carry forward to any surplus reserves in its balance
sheet;
16
(c) the extent to which understatement or overstatement of any surplus of income over expenditure or
any shortfall of expenditure over income has been indicated in the auditor's report and the reasons for such
understatement or overstatement;
(d) the productivity of research projects undertaken by the Institute measured in accordance with
such norms as may be specified by any statutory regulatory authority;
(e) appoi ntments of the officers and teachers of the Institute;
(f) benchmark and internal standards set by the Institute, including the nature of innovations in
teaching, research and application of knowledge.
(2) The Director shall also be bound to give the compl ete information and explanation in its report on
every reservation, qualification or adverse remark contained in the auditors' report.
37. Annual report of each Institute .(1) The annual report of each Institute shall be prepared under
the direction of the Board, which shall include, among other matters, the steps taken by the Institute
towards the fulfilment of its objects and an outcome based assessment of the research being undertaken in
such Institute, and be submitted to the Board on or before such dat e as may be specified and the Board
shall consider the report in its annual meeting.
(2) The annual report as approved by the Board shall be published and placed on the website of the
Institute.
(3) The Board shall prepare and release for every year a repo rt, in English and in Hindi, the working
of the Institute in the previous year on or before the expiry of nine months from the close of financial
year, and a copy of the same, together with an audited statement of accounts showing the income and
expenditur e for the previous year shall be submitted to the Central Government and the concerned State
Government within that stipulated time, and the same may be caused to be laid before each House of
Parliament and the concerned State Legislature.
CHAPTER V
CO-ORDINATION FORUM
38. Co-ordination Forum .(1) In order that there may be better co -ordination among the Institutes,
the Central Government may, by notification in the Official Gazette, establish, with effect from such date
as may be specified in the notification, a central body to be called the Co -ordination Forum for all the
Institutes specified in column (5) of the Schedule.
(2) The Co-ordination Forum shall consist of the following members, namely |
itutes specified in column (5) of the Schedule.
(2) The Co-ordination Forum shall consist of the following members, namely:
(i) the Minister in -charge of the Ministry or Department of the Central Government having
administrative control of technical education, ex officio , as Chairperson;
(ii) Secretary to the Government of India, in -charge of the Department of the Central Government
having administrative control of technical education, ex officio ;
(iii) four Secretaries in -charge of department looking after Indian Institutes of Information
Technology of State G overnments in which the Institutes are located, to be nominated by the
Chairperson of the Co -ordination Forum, by rotation for two years, ex officio ;
(iv) four Chairpersons of the Institutes, to be nominated by the Chairperson of the Co -ordination
Forum, b y rotation for two years;
(v) the Directors of each of the Institutes, ex officio ;
(vi) four industry partners, to be nominated by the Chairperson of the Co -ordination Forum, not
more than one from any Institute, by rotation every two years;
(vii) three persons of eminence, of which at least one shall be a woman, in academia, industry or
public service, to be nominated by the Co -ordination Forum; and
(viii) one representative of All India Council of Technical Education:
17
Provided that while nominating unde r clauses ( iii), (iv) and ( vi), care shall be taken to ensure
representation of as many Institutes as possible by selecting Secretaries of State Governments,
Chairpersons of the Institutes, and representatives of industry partners from the Board of differe nt
Institutes to the extent possible.
(3) An officer of the Department of Higher Education, Government of India, not below the rank of
Joint Secretary, concerned with technical education, ex officio , to act as the Member -Secretary of the
Co-ordinatio n Forum.
(4) The Co -ordination Forum may, at its discretion, constitute a Standing Committee of the Indian
Institute of Information Technology Co -ordination Forum (Public -private Partnership) to assist the
Co-ordination Forum in discharge of its dut ies and responsibilities.
(5) The expenditure on the Co -ordination Forum shall be met by the resources pooled by all the
Institutes governed by this Act.
39. Term of office and allowances payable to members of Co -ordination Forum .(1) The term
of office of a member referred to in clause ( viii) of sub -section ( 2) of section 38 shall be three years from
the date of nomination.
(2) The term of office of an ex officio member shall continue so long as the member holds the office
by virtue of which he is a member .
(3) While nominating members to the Co -ordination Forum under clauses ( iii), (iv) and ( vi) of
sub-section ( 2) of section 38, the Chairperson of the Co -ordination Forum shall, to the extent possible, ensure
maximum possible representation from each Institute.
(4) The members of the Co -ordination Forum shall be entitled to travelling and such other allowances,
as may be prescribed, for attending meetings of the Co -ordination Forum or its Committees thereof.
40. Function s and duties of Co -ordination Forum. (1) The Co -ordination Forum shall facilitate
the sharing of experience, ideas and concerns with a view to enhancing the performance of all the
Institutes.
(2) Without prejudice to the provisions of sub -section ( 1), the C o-ordination Forum shall perform the
following functions, namely:
(a) advise the Central Government to include a new institution or exclude an existing institution
from the Schedule;
(b) deliberate on such matters of common interest to Institutes as may b e referred to it by any
Institute;
(c) promote necessary co -ordination and co -operation in the working of the Institutes;
(d) recommend to the Central Government, the institution of scholarships including for research
and for the benefit of students belong ing to the Scheduled Castes, the Scheduled Tribes and other
socially and educationally backward classes of citizens; and
(e) perform such other functions as may be referred to it by the Central Government or any State
Government:
Provided that nothing in t his section shall derogate the powers and functions vested by law in the
Board or Senate or other authorities of each Institute.
(3) The Chairperson of the Co -ordination Forum shall ordinarily preside at the meetings of the
Co-ordination Forum and in the absence, the Secretary to the Government of India, in -charge of the
Department of the Central Government having administrative control of technical education, shall preside at
the meeting.
(4) The Co -ordination Forum shall meet at least once in every year, or as and when deemed
necessary by the Chairperson of the Co -ordination Forum, and follow such procedure in its meetings, as
may be prescribed.
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CHAPTER VI
MISCELLANEOUS
41. Power to make rules. (1) The Central Government may, after previous publication, by
notification make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, name ly:
(a) the form and manner in which the State Government shall submit proposal to the Central
Government under sub -section ( 2) of section 11;
(b) the investment proposal of capital in establishment of the Institute and the respective shares
under sub -section ( 7) of section 11;
(c) the travelling and other allowances payable to members of the Co -ordination Forum under
sub-section ( 4) of section 39;
(d) the procedure to be followed in the meetings of the Co -ordination Forum under
sub-section ( 4) of section 40.
42. Acts and proceedings not to be invalidated by vacancies, etc. No act of the Co -ordination
Forum, or any Institute or Board or Senate or any other body set up under this Act or the Statutes, shall be
invalid merely by reason of
(a) any vacancy or defect in the constitution thereof; or
(b) any irregularity in its procedure not affecting the merits of the case; or
(c) any defect in the selection, nomination or appointment of a person acting as a member thereof.
43. Returns and information to be provided to Central Government or State Government. (1)
The Institute shall furnish to the Central Government such returns or other information with respect to its
policies or activities as the Central Government may, for the purpose of r eporting to Parliament or for the
making of policy, from time to time require.
(2) The Institute, shall furnish to the State Government in which such Institute is located, such returns
or other information with respect to its policies or activities as that Government may, for the purpose of
reporting to the concerned State Legislature or for the making of policy, from time to time require.
44. Power of Central Government to issue directions. The Institute shall carry out such directions
as may be issued to it from time to time by the Central Government for the efficient administration of this
Act.
45. Institute to be public authority under Right to Information Act .The provisions of the Right
to Information Act, 2005 (22 of 2005) shall apply to each Institut e, as if it were a public authority defined
in clause ( h) of section 2 of the Right to Information Act, 2005.
46. Transitional provisions .Notwithstanding anything contained in this Act
(1) (a) the Board of every Institute functioning as such immediately before the commencement of
this Act shall continue to function until a new Board is constituted for that Institute under this Act, but
on the constitution of a new Board under this Act, the members of the Board holding office before such
commencement of th is Act shall cease to hold office;
(b) every Senate constituted in relation to every Institute before the commencement of this Act shall
be deemed to be the Senate constituted under this Act until a Senate is constituted under this Act for that
Institute, but on the constitution of the new Senate under this Act, the members of the Senate holding
office before the commencement of this Act shall cease to hold office;
(c) rules, bye -laws and Ordinances of each existing Institute as in force, immediately, befor e the
commencement of this Act, shall continue to apply in the corresponding institute in so far as they are
not inconsistent with the provisions of this Act, until the first Statutes and Ordinances are made under
this Act;
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(d) in case there are no such ru les, bye -laws or Ordinances, the Statutes, Ordinances, rules and
regulations of one of the existing centrally funded Indian Institutes of Information Technology as
adopted by the Board of the concerned Institute, shall apply to the Institute in so far as t hey are not
inconsistent with the provisions of the Act until the first Statutes and the Ordinances are made under
this Act.
(2) The Central Government may, without prejudice to the provisions of sub -section ( 1), if it
considers necessary and expedient to do so, by notification, take such measures which may be necessary
for the transfer of the existing Institute to the corresponding Institute mentioned under column (5) of the
Schedule.
47. Power to remove difficulties. (1) If any difficulty arises in giving effect to the provisions of this
Act, the Central Government may, by order published in the Official Gazette, make such provisions or give
such directions not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient
for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of the period of three
years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each
House of Parliament.
48. Laying of rules, Statutes, Ordinances and notification. Every rule, Statute, Ordinance made, and
every notification issued, by the Central Government under this Act, shall be laid, as soon as may be after it i s
made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the ses sion or the successive sessions aforesaid, both Houses agree in making
any modification in the rule, Statute, Ordinance or notification or both Houses agree that the rule, Statute,
Ordinance or notification should not be made or issued, the rule, Statute, Ordinance or notification shall
thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any
such modification or annulment shall be without prejudice to the validity of anything previously done under
that rule, Statute, Ordinance or notification.
20
THE SCHEDULE
[See section 4( 1)]
Sl. No Name of the
State Name of the existing institute Location Name of Institute
Incorporated under
this Act
(1) (2) ( 3 ) (4) (5)
1. Andhra Pradesh Indian Institute of Information
Technology, Sri City Chittoor, being
a society registered under the
Societies Registration Act, 1860 (21
of 1860) Indian Institute of
Information
Technology, Sri
City, Chittoor Indian Institute of
Information
Technology,
Sri City, Chittoor.
2.
Assam
Indian Institute of Information
Technology, Guwahati, being a
society registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Guwahati Indian Institute of
Information
Technology,
Guwahati.
1[2A Bihar Indian Institute of Information
Technology, Bhagalpur being a
society registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Bhagalpur Indian Institute of
Information
Technology,
Bhagalpur.]
3. Gujarat Indian Institute of Information
Technology, Vadodara, being a
society registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Vadodara Indian Institute of
Informati on
Technology,
Vadodara.
1[3A Gujarat Indian Institute of Information
Technology, Surat being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology, Surat Indian Institute of
Information
Technology, Surat.]
4. Haryana Indian Institute of Information
Technology, Sonepat, being a society
registered under the Societies
Registration Act, 1860 (21 of 1860 Indian Institute of
Information
Technology,
Sonepat Indian Institute of
Information
Techn ology,
Sonepat.
5. Himachal
Pradesh Indian Institute of Information
Technology, Una, being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology, Una Indian Institute of
Information
Technology, Una.
6.
Jharkhand
Indian Institute of Information
Technology, Ranchi, being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology, Ranchi Indian Institute of
Information
Technology,
Ranchi.
7. Karnataka Indian Institute of Information
Technology, Dharwad, being a
society registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Dharwad Indian Institute of
Information
Technology,
Dharwad.
1. Ins. by Act 2 8 of 20 20, s. 3 (w.e.f. 10 -10-2020).
21
Sl. No Name of the
State Name of the existing institute Location Name of Institute
Incorporated under
this Act
(1) (2) ( 3 ) (4) (5)
1[7A. Karnataka
Indian Institute of Information
Technology, Raichur being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Raichur Indian Institute of
Information
Technology,
Raichur.]
8. Kerala Indian Institute of Information
Technology, Kottayam, being a
society registered un der the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Kottayam |
60 (21 of 1860) Indian Institute of
Information
Technology,
Kottayam Indian Institute of
Information
Technology,
Kottayam.
1[8A Madhya
Pradesh Indian Institute of Information
Technology, Bhopal being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology, Bhopal Indian Institute of
Information
Technology,
Bhopal.]
9. Maharashtra Indian Institute of Information
Technology, Nagpur, being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Nagpur Indian Institute of
Information
Technology,
Nagpur.
10. Maharashtra Indian Institute of Information
Technology, Pune, being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology, Pune Indian Institute of
Information
Technology, Pune.
11. Manipur
Indian Institute of Information
Technology, Senapati, being a
society regist ered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology,
Senapati Indian Institute of
Information
Technology,
Senapati.
12. Rajasthan
Indian Institute of Information
Technology, Kota, being a society
registered under the Societies
Registration Act, 1860 (21 of 1860) Indian Institute of
Information
Technology, Kota Indian Institute of
Information
Technology, Kota.
13. Tamil Nadu Indian Institute of Information
Technology, Tiruchirapalli, being
a society registered under the
Societies Registration Act, 1860
(21 of 1860) Indian Institute of
Information
Technology,
Srirangam,
Tiruchirapalli Indian Institute of
Information
Technology,
Tiruchirapalli.
1[13A Tripura Indian Institute of Information
Tech nology, Agartala being a
society registered under the
Societies Registration Act, 1860
(21 of 1860) Indian Institute of
Information
Technology,
Agartala Indian Institute of
Information
Technology,
Agartala.]
14. Uttar
Pradesh
Indian Institute of Information
Technology, Lucknow, being a
society registered under the
Societies Registration Act, 1860
(21 of 1860) Indian Institute of
Information
Technology,
Lucknow Indian Institute of
Information
Technology,
Lucknow.
1. Ins. by Act 28 of 2020, s. 3 (w.e.f. 10 -10-2020).
22
Sl. No Name of the
State Name of the existing institute Location Name of Institute
Incorporated under
this Act
(1) (2) ( 3 ) (4) (5)
15. West Bengal Indian Institute of Information
Technology, Kalyani, being a
society registered under the
Societies Registration Act, 1860
(21 of 1860) Indian Institute of
Information
Technology,
Kalyani Indian Institute of
Information
Technology,
Kalyani.
|
THE TRADE MARKS ACT, 1999
ACT NO. 47 OF 1999
[30th December, 1999. ]
An Act to amend and consolidate the law relating to trade marks, to provide for registration and
better protection of trade marks for goods and services and for the prevention of the use of
fraudulent marks.
BE it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement .(1) This Act may be ca lled the Trade Marks Act, 1999.
(2) It extends to the whole of India.
(3) It shall come into force on such date1 as the Central Government may, by notification in the
Official Gazette, appoin t:
Provided that different dates may be appointed for different provisions of this Act, and any refer ence
in any such provision to the commencement of this Act shall be construed as a reference to the comin g
into force of that provision.
2. Definitions a nd interpretation .(1) In this Act, unless th e context otherwise requires,
2* * * * *
(b) assignment means an assignment in writing b y act of the parties concerned;
(c) associated trade marks means trade marks deemed to be, or required to be, registered as
associa ted trade marks under this Act;
2* * * * *
(e) certification trade mark means a mark capable of distinguishing the goods or services in
connection with which it is used in the course of trade which are certified by the proprietor of the
mark in respect of origin, material, mode of manufacture of goods or performance of servi ces, quality,
accuracy or other characteristics from goods or services not so certified and registrable as such under
Chapter IX in respect of those goods or services in the name, as proprietor of the certificat ion trade
mark, of that person;
2* * * * *
(g) collective mark means a trade mark distinguishing the goods or services of members of an
association of persons (not being a partnership within the meaning of the Indian Partnership
Act, 1932 (9 of 1932) which is the proprietor of the m ark from those of others;
(h) deceptively similar .A mark shall be deemed to be deceptively similar to another mark if
it so nearly resembles that other mark as to be likely to deceive or cause confusion;
(i) false trade description means
(I) a trade description which is untrue or misleading in a material respect as regards the goods
or serv ices to which it is applied; or
(II) any alteration of a trade description as regards the goods or services to which it is applied,
whether by way of addition, effa cement or otherwise, where that alteration makes the description
untrue or misle ading in a material respect; or
1. 15th September, 2003, vide notification No. S.O. 1048(E), dated 15th September, 2003, see Gazette of India, Extraordinary,
Part II, sec. 3( ii).
2. Clauses ( a), (d) and ( f) omitted by Act 33 of 2021, s. 21 (w.e.f. 4 -4-2021).
7
(III) any trade description which denotes or implies that there are contained, as regards the
goods to which it is applied, more yards or metres than there are contained therein standa rd yards
or standard metres; or
(IV) any marks or arrangement or com bination thereof when applied
(a) to goods in such a manner as to be likely to lead persons to believe that the goods are
the manufacture or mercha ndise of some person other than the person whose merchandise or
manufacture they really are;
(b) in relation to services in such a manner as to be likely to lead persons to believe that
the services are provided or rendered by so me person other than the pe rson whose services
they really are; or
(V) any false name or initials of a person applied to goods or services in such manner as if
such name or initials were a trade description in any ca se where the name or initials
(a) is or are not a trade ma rk or pa rt of a trade mark; and
(b) is or are identical with or deceptively similar to the name or initials of a person
carrying on business in connection with goods or services of the same description or both and
who has not authorise d the us e of such name or initials; and
(c) is or are either the name or initials of a fictitious person or some person not bona fide
carrying on business in connecti on with such goods or services,
and the fact that a trade description is a trade mark or part of a trade mark shall not prevent such
trade description being a false trade description within the meaning of this Act;
(j) goods means anything which is the s ubject of trade or manufacture;
1* * * * *
(l) limitation s (with its grammatical variations) means any limitat ion of the exclusive right to
the use of a trade mark given by the registration of a person as proprietor thereof, including
limitations of that right as to mode or area of use within India or outside India;
(m) mark includes a device, brand, heading, la bel, ticket, name, signature, word, letter,
numeral, shape of goods, packaging or combination of colour s or any combination thereof;
1* * * * *
(o) name inclu des any abbreviation of a name;
(p) notify means to notify in the Trade Mark Journal published by the Registrar;
(q) package includes any case, box, container, covering, folder, receptacle, vessel, casket,
bottle, wrapper, label, band, ticket, reel, frame, capsu le, cap, lid, stopper an d cork;
(r) permitted use, in relation to a registered trade mark, means the use of trade mark
(i) by a registered user of the trade mark in relation to goods or services
(a) with which he is connec ted in the course of trade; and
(b) in respect of which the trade mark remains reg istered for the time being; and
(c) for which he is reg istered as registered user; and
(d) which complies with any conditions or limitations to which the registration of
registered user is subject; or
(ii) by a person other than the registered proprietor and registered user in relation t o goods or
services
(a) with which he is connec ted in the course of trade; and
1. Clauses ( k) and ( n) omitted by Act 33 of 2021, s. 21 (w.e.f. 4 -4-2021).
8
(b) in respect of which the trade mark remains reg istered for the time being; and
(c) by consent of such registe red proprie tor in a written agreement; and
(d) which complies with any conditions or limitations to which such user is subject and to
which the registratio n of the trade mark is subject;
1[(s) prescribed means ,
(i) in relation to proceedings before a Hi gh Court, prescribed by rules made by the High
Court; and
(ii) in other cases, prescribed by rules made under this Act; ]
(t) register means the Register of Trade Marks referred to i n sub -section ( 1) of section 6;
(u) registered (with its grammatical variations) m eans registered under this Act;
(v) registered proprietor, in relation to a trade mark, means the person for the time being
entered in the register as proprietor of the trade mark;
(w) registered trade mark means a trade mark which is actu ally on the r egister and remaining in
force;
(x) registered user means a person who is for the time being regis tered as such under
section 49;
(y) Registrar means the Registrar of Trade Marks referred to in section 3;
(z) Service means service of any description which is made available to potential users and
includes the provision of services in connection with business of any industrial or commercial matters
such as banking, communication, education, financing, insurance, chit funds, real esta te, transport,
storage, material treatment, processing, supply of electrical or other energy, boarding, lodging,
entertainment, amusement, construction, repair, conveying of news or information and advertising;
(za) trade description means any description, statement or other indication, direc t or indirect,
(i) as to the number, quantity, measure, g auge or weight of any goods; or
(ii) as to the standard of quality of any goods or services according to a classification
commonly used or recognise d in the trade; or
(iii) as to fitness for the purpose, strength, performance or behaviour of any goods, being
drug as defined in the Drugs and Cosmetics Act, 1940 (23 of 1940) , or food as defined in the
Prevention of Food Adulteration Act, 1954 (37 of 1954) ; or
(iv) as to the place or country in which or the time at which any goods or services were made,
produced or p rovided, as the case may be; or
(v) as to the name and address or other indication of the identity of the manufacturer or of the
person providing the services or of the person for whom the goods are manufactur ed or services
are provided; or
(vi) as to the mode of manufacture or producing any goods or providing services; or
(vii) as to the material of w hich any goods are composed; or
(viii) as to any goods being the subject of an existing patent, privilege or copyright,
and includes
(a) any description as to the use of any mark which according to the custom of the trade is
commonly taken to be an indicati on of any of the above matters ;
(b) the description as to any imported goods contained in any bill o f entry or shipping bill;
1. Subs. by Act 33 of 2021, s. 21, for clause ( s) (w.e.f. 4 -4-2021).
9
(c) any other description which is likely to be misunderstood or mistaken for all or any of the
said matters;
(zb) trade mark means a mark capable of being re presented graphically and which is capable of
distinguishing the goods or services of one person from those of others and may include shape of
goods, their packaging an d combination of colours; and
(i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used
in relation to goods or services for the purpose of indicating or so as to indicate a connection in
the course of trade between the goods or services, as the case may be, and some person having the
right as proprietor to use the mark; and
(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation
to goods or services for the purpose of indicating or so as to indicate a connecti on in the course of
trade between the goods or services, as the case may be, and some person having the right, either
as proprietor or by way of permitted user, to use the mark whether with or without any indication
of the identity of that person, and incl udes a certification trade mark or collective mark;
(zc) transmission means transmission by operation of law, devolution on the personal
representative of a deceased person and any other mode of transfer, not being assignment;
(zd) Technical Member means a Membe r who is not a Judicial Member;
1* * * * *
(zg) well known trade mark, in relation to any goods or services, means a mark which has
become so to the substantial segment of the public which uses such goods or receives such services
that the use of such mark in relation to other goods or services would be likely to be taken as
indicating a connection in the course of trade or rendering of services between those goods or services
and a person using the mark in relation to the fir st-mention ed goods or services.
(2) In this Act, unless the context othe rwise requires, any reference
(a) to trade mark shall include reference to collective mark or certification trade m ark;
(b) to the use of a mark shall be construed as a reference to the u se of printed or other vis ual
representation of the mark;
(c) to the use of a mark,
(i) in relation to goods, shall be construed as a reference to the use of the mark upon, or in
any physical or in any other rela tion whatsoever, to such goods;
(ii) in relation to services, shall be construed as a reference to the use of the mark as or as part
of any statement about the availability, provision o r performance of such services;
(d) to the Registrar shall be construed as including a reference to any officer when discharging the
functions of the Registrar in pursuance of sub -section ( 2) of section 3;
(e) to the Trade Marks Registry shall be construed as including a reference to any offi ce of the
Trade Marks Registry.
(3) For th e purposes of this Act, goods an d services are associated with each other if it is likely that
those goods might be sold or otherwise traded in and those services might be provided by the same
business and so with descriptions of good s and descriptions of services.
(4) For the purposes o f this Act, existing registered trade mark means a trade mark registered under
the Trade and Merchandise Marks Act, 1958 (43 of 1958) immediately befor e the commencement of this
Act.
1. Clauses ( ze) and ( zf) omitted by Act 33 of 2021, s. 21 (w.e.f. 4 -4-2021).
10
CHAPTER II
THE REGISTER AND CONDITIONS FOR REGISTRATION
3. Appointment o f Registrar and other officers .(1) The Central Government may, by
notification in the Official Gazette, appoint a perso n to be known as the Controller -General of Patents,
Designs and Trade Marks, who shall be the Registrar of Trade Mark s for the purposes of this Act.
(2) The Central Government may appoint such other officers with such designations as it thinks fit for
the purpose of discharging, under the superintendence and direction of the Registrar, such functions of the
Registrar under this Act as he may from time to ti me authorise them to discharge.
4. Power of Registrar to w ithdraw or transfer cases, etc .Without prejudice to the generality of
the provisions of sub -section ( 2) of section 3, the Registrar may, by order in writing and fo r reasons to be
recorded therein, withdraw any matter pending before an officer appointed under the said sub -section ( 2)
and deal with such matter himself either de novo or from the stage it was so withdrawn or transfer the
same to another officer so appoi nted who may, subject to special directions in the order of transfer,
proceed with the matter either de novo or from t he stage it was so transferred.
5. Trade Marks Registry and offices t hereof .(1) For the purposes of this Act, there shall be a
trade marks registry and the Trade Marks Registry established under the Trade and Merchandise Marks
Act, 1958 (43 of 1958) shall be the Trade Marks Registry under this Act.
(2) The head office |
(43 of 1958) shall be the Trade Marks Registry under this Act.
(2) The head office of the Trade Marks Registry shall be at such place as the Central Gov ernment
may specify, and for the purpose of facilitating the registration of trade marks, there may be established at
such places as the Central Government may think fit branch offices of the Trade Mark s Registry.
(3) The Central Government may, by notific ation in the Official Gazette, define the territorial limits
within which an office of the Trade Marks Regis try may exercise its functions.
(4) There shall be a se al of the Trade Marks Registry.
6. The Register of Trade Marks .(1) For the purposes of this Act, a record called the Register of
Trade Marks shall be kept at the head office of the Trade Marks Registry, wherein shall be entered all
registered trade marks with the names, addresses and description of the proprietors, notifications of
assignment and transmissions, the names, addresses and descriptions of registered users, conditions,
limitations and such other matter relating to registered tr ade marks as may be prescribed.
(2) Notwithstanding anything contained in sub -section ( 1), it shall be lawful for the Registrar to keep
the records wholly or partly in computer floppies diskettes or in any other electronic form subject to such
safeguards as may be prescribed.
(3) Where such register is maintained wholly or partly on computer under sub -section ( 2) any
reference in this Act to entry in the Register shall be construed as the reference to any entry as maintained
on computer o r in any other electronic form.
(4) No notice of any trust, express or implied or constructive, shall be entered in the register and no
such notice shall be receivable by the Registrar.
(5) The register shall be kept under the control a nd management of the Registrar.
(6) There shall be kept at each branch office of the Trade Marks Registry a copy of the register and
such of the othe r documents mentioned in section 148 as the Central Government may, by notification i n
the Official Gazette, direct.
(7) The Register of Trade Marks, both Part A and Part B, existing at the commencement of this Act,
shall be incorporated in and form part of the register under this Act.
7. Classi fication of goods and services .(1) The Registrar shall classify goods and services, as far
as may be, in accordance with the International classification of goods and services for the purposes of
registration of tra de marks.
(2) Any question arising as to the class within which any goods or services fall s shall be determined
by the Registrar whose decision shall be final.
11
8. Publication of alphabetical index .(1) The Registrar may publish in the prescribed manner an
alphabetical index of classification of goods and ser vices referred to in section 7.
(2) Where any goods or services are not specified in the alphabetical index of goods and services
published under sub -section ( 1), the classification of goods or services shall be determined by the
Registrar in accordance with sub -section ( 2) of section 7.
9. Absolute groun ds for refusal of registration .(1) The trade marks
(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the
goods or services of one perso n from those of another person;
(b) which consist exclusively of marks or indications which may serve in trade to designate the
kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the
goods or rendering of the service or other character istics of the goods or service;
(c) which consist exclusively of marks or indications which have become customary in the
current language or in the bona fide and established practices of the trade,
shall not be registered:
Provided that a trade mark shall not be refused registration if before the date of application for
registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade
mark.
(2) A mark shall not be registered as a trade mark if
(a) it is of such nature as to deceive the public or cause confusion;
(b) it contains or comprises of any matter likely to hurt the religious susceptibilities of any class
or se ction of the citizens of I ndia;
(c) it comprises or contain s scandalous or obscene matter;
(d) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950
(12 of 1950).
(3) A mark shall not be registered as a trade mark if it consists exclusively of
(a) the shape of goods which results from the nat ure of the goods themselves; or
(b) the shape of goods which is necessary t o obtain a technical result; or
(c) the shape which gives substantial value to the goods.
Explanation .For the purposes of this sectio n, the nature of goods or services in relation to which
the trade mark is used or proposed to be used shall not be a grou nd for refusal of registration.
10. Limitation as to colour .(1) A trade mark may be limited wholly or in part to any combination
of colours and any such limitation shall be taken into consideration by the 1[Registrar or the High Court,
as the case may be ] having to decide on the distinctive character of the trade mark.
(2) So far as a trade mark is registered without limitation of colo ur, it shall be deemed to be registered
for all colours.
11. Relative grounds for refusal of registration .(1) Save as provided in section 12, a trade mark
shall not be registered if, because of
(a) its identity with an earlier trade mark and similarity o f goods or services cove red by the trade
mark; or
(b) its similarity to an earlier trade mark and the identity or similarity of the goods or serv ices
covered by the trade mark,
there exists a likelihood of confusion on the part of the public, which include s the likelihood of
associati on with the earlier trade mark.
1. Subs. by Act 33 of 2021, s. 21, for tribunal (w.e.f. 4 -4-2021).
12
(2) A trade mark which
(a) is identical with or simila r to an earlier trade mark; and
(b) is to be registered for goods or services which are not similar to those for which the earlier
trade mark is registered in the name of a different proprietor,
shall not be registered if or to the extent the earlier trade mark is a well -known trade mark in India and the
use of the later mark without due cause would take u nfair advantage of or be detrimental to the distinctive
character or re pute of the earlier trade mark.
(3) A trade mark shall not be registered if, or to the extent that, its use in In dia is liable to be
prevented
(a) by virtue of any law in particular the law of passing off protecting an unregistered trade mark
used in the course of trade; or
(b) by virtue of law of copyright.
(4) Nothing in this section shall prevent the registration of a trade mark where the propri etor of the
earlier trade mark or other earlier right consents to the registration, and in such case the Registrar may
register the mark under special circumstances under section 12.
Explanation .For the purposes of this sect ion, earlier trade mark means
1[(a) a registered trade mark or an application under section 18 bearing an earlier date of filing or
an international registration referred to in section 36E or convention application referred to in
section 154 which has a date of application earlier th an that of the trade mark in question, taking
account, where appropriate, of the priorities claimed in respect of the trade marks; ]
(b) a trade mark which, on the date of the application for registration of the trade mark in
question, or where appropriate, of the priority claimed in respect of the application, was entitled to
protect ion as a well -known trade mark.
(5) A trade mark shall not be refused registration on the grounds specified in sub -sections ( 2) and ( 3),
unless objection on any one or more of t hose grounds is raised in opposition proceedings by the propri etor
of the earlier trade mark.
(6) The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into
account any fact which he considers relevant for determining a trade mark as a well-known trade mark
including
(i) the knowledge or recognition of that trade mark in the relevant section of the public including
knowledge in India obtained as a result of pr omotion of the trade mark;
(ii) the duration, extent and ge ographical area of any use of that trade mark;
(iii) the duration, extent and geographical area of any promotion of the trade mark, including
advertising or publicity and presentation, at fairs or exhibition of the goods or services t o which the
trade mark applies;
(iv) the duration and geographical area of any registration of or any application for registration of
that trade mark under this Act to the extent that they reflect the use or r ecognition of the trade mark;
(v) the record of successful enforcement of the rights in that trade mark, in particular the extent to
which the trade mark has been recognise d as a well -known trade mark by any court or Registrar under
that record.
(7) The Registrar shall, while determining as to whether a trade mark is known or recognise d in a
relevant section of the public for the purposes of sub -section ( 6), take into account
(i) the number of actual or potential cons umers of the goods or services;
(ii) the number of persons involved in the channels of distrib ution of the goods or services;
1. Subs. by Act 40 of 2010, s. 2, for clause ( a) (w.e.f. 8 -7-2013).
13
(iii) the business circles deal ing with the goods or services,
to which that trade mark applies.
(8) Where a trade mark has been determined to be well known in at least one relevant section of the
public in India by any court or Registrar, the Registrar shall consider that trade mark as a well -known
trade mark f or registration under this Act.
(9) The Registrar shall not require as a condition, for determining whe ther a trade mark is a
well-know n trade mark, any of the following, namely:
(i) that the tra de mark has been used in India;
(ii) that the trade mark has been registered;
(iii) that the application for registration of the trade mark has been filed in I ndia;
(iv) that the trade mark
(a) is well -known in; or
(b) has been registered in; or
(c) in respect of which an application for registration has been filed in,
any ju risdiction other than India, or
(v) that the trade mark is well -known to the public at large in India.
(10) While consideri ng an application for registration of a trade mark and opposition filed in respect
thereof, the Registrar shall
(i) protect a well -known trade mark against the id entical or similar trade marks;
(ii) take into consideration the bad faith involved either of the applicant or the opponent affecting
the ri ght relating to the trade mark.
(11) Where a trade mark has been registered in good faith disclosing the material information s to the
Registrar or where right to a trade mark has been acquired through use in good faith before the
commencement of this Act, then, nothing in this Act shall prejudice the validity of the registration of that
trade mark or right to use that trade mark on the ground that such trade mark is iden tical with or similar to
a well -known trade mark.
12. Registration in the case of honest concurrent use, etc .In the case of honest concurrent use or
of other special circumstances which in the opinion of the Regis trar, make it proper so to do, he may
permit the registration by more than one proprietor of the trade marks which are identical or similar
(whether any such trade mark is already registered or not) in respect of the same or similar goods or
services, subj ect to such conditions and limitations, if any, as the Reg istrar may think fit to impose.
13. Prohibition of registration of names of chemical elements or international non -propriet ary
names .No word
(a) which is the commonly used and accepted name of any single chemical element or any single
chemical compound (as distinguished from a mixture) in respect of a chemical sub stance or
preparation, or
(b) which is decl ared by the World Health Organis ation and notified in the prescribed manner by
the Registrar f rom time to time, as an international non -proprietary name or which is de ceptively
similar to such name,
shall be registered as a trade mark and any such registration shall be deemed for the purpose of section 57
to be an entry made in the register without sufficient cause or an entry wrongly remaining on the register,
as the circumstances may require.
14. Use of names and representations of living pe rsons or persons recently dead .Where an
application is made for the registration of a trade mark which falsely suggests a connection with any
living person, or a person whose death took place within twenty years prior to the date of application for
registration of the trade mark, the Re gistrar may, before he proceeds with the application, require the
14
applicant to furnish him with the consent in writing of such living person or, as the case may be, of the
legal representative of the deceased person to the connection appearing on the trade mark, and may refuse
to proceed with the application unless the applicant furnishes t he Registrar with such consent.
15. Registration of parts of trade marks and of trade marks as a s eries.(1) Where the
proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he may
apply to register the whole and th e part as separate trade marks.
(2) Each such separate trade mark shall satisfy all the conditions applying to and have all the incidents
of, an independent trade mark.
(3) Where a person claiming to be the proprietor of several trade marks in respect of the same or
similar goods or services or description of goods or description of services, which, while resembling each
other in the materi al particulars ther eof, yet differ in respect of
(a) statement of the goods or services in relation to which they are respectively used or proposed
to be used; or
(b) statement of number, price, quality or names of places; or
(c) other matter of a non -distinctive character which does not substantially affect the identity of
the trade mark; or
(d) colour,
seeks to register those trade marks, they may be registered a s a series in one registration.
16. Registration of trade m arks as associated trade marks .(1) Where a trade mark which is
registered, or is the subject of an application for registration, in respect of any goods or services is
identical with another trade mark which is registered, or is the subject of an application for registration, in
the name of the same proprietor in respect of the same goods or description of goods or same services or
description of services or so nearly resembles it as to be likely to deceive or cause confusion if used by a
person other than the proprietor, the Registrar may , at any time, require that the trade marks shall be
entered on the regi ster as associated trade marks.
(2) Where there is an identity or near resemblance of marks that are registered, or are the subject of
applications for registration in the name of the same proprietor, in respect of goods and services which are
associated with those goods or services, or goods |
lications for registration in the name of the same proprietor, in respect of goods and services which are
associated with those goods or services, or goods or services of that description, sub -section ( 1) shall
apply as it applies as where there is an identity or near resemblance of marks that are reg istered, or are the
subject of applications for registration, in the name of the same proprietor in respect of the same goods or
description of goods or same servi ces or description of services.
(3) Where a trade mark and any part thereof are, in accordance with the provisions of sub -section ( 1)
of section 15, registered as separate trade marks in the name of the same proprietor, they shall be deemed
to be, and shall be registe red as, associated trade marks.
(4) All trade marks registered in accord ance with the provisions of sub -section ( 3) of section 15 as a
series in one registration shall be deemed to be, and shall be registered as, associated trade marks.
(5) On application made in the prescribed manner by the registered proprietor of two or mor e trade
marks registered as associated trade marks, the Registrar may dissolve the association as respects any of
them if he is satisfied that there would be no likelihood of deception or confusion being caused if that
trade mark were used by any other per son in relation to any of the goods or services or both in respect of
which it is registered, and may amend the register accordingly.
17. Effect of registration of parts of a mark .(1) When a trade mark consists of several matters,
its registration shall c onfer on the proprietor exclusive right to the use of t he trade mark taken as a whole.
(2) Notwithstanding anything contained in sub -section (1), when a trade mark
(a) contains any part
(i) which is not the subject of a separate application by the propri etor for r egistration as a
trade mark; or
15
(ii) which is not separately registered by the proprietor as a trade mark; or
(b) contains any matter which is common to the trade or is otherwise of a non -distinctive
character,
the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole
of the trade mark so registered.
CHAPTER III
PROCEDURE FOR AND DURATION OF REGISTRATION
18. Application for registration .(1) Any person claiming to be the proprietor of a trade mark used
or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in
the prescribed manner for the registration of his trade mark.
(2) A single applicat ion may be made for registration of a trade mark for different classes of goods
and services and fee payable therefor shall be in respect of each s uch class of goods or services.
(3) Every application under sub -section ( 1) shall be filed in the office of t he Trade Marks Registry
within whose territorial limits the principal place of business in India of the applicant or in the case of
joint applicants the principal place of business in India of the applicant whose name is first mentioned in
the application as having a place of business in India, is situate:
Provided that where the applicant or any of the joint applicants does not carry on business in India,
the application shall be filed in the office of the Trade Marks Registry within whose territorial limi ts the
place mentioned in the address for service in India as disclosed in the application, is situate.
(4) Subject to the provisions of this Act, the Registrar may refuse the application or may accept it
absolutely or subject to such amendments, modificat ions, conditions or limitation s, if any, as he may
think fit.
(5) In the case of a refusal or conditional acceptance of an application, the Registrar shall record in
writing the grounds for such refusal or conditional acceptance and the materials used by h im in arriving at
his decision.
19. Withdrawal of acceptance .Where, after the acceptance of an application for registration of a
trade mark but before its registratio n, the Registrar is satisfied
(a) that the application has been accepted in error; or
(b) that in the circumstances of the case the trade mark s hould not be registered or should be
registered subject to conditions or limitations or to conditions additional to or different from the
conditions or limitations subject to which the application has been accepted,
the Registrar m ay, after hearing the applicant if he so desires, withdraw the acceptance and proceed as if
the app lication had not been accepted.
20. Advertisement of application .(1) When an application for registration of a trade mark has
been accepted, whether absolutely or subject to conditions or limitations, the Registrar shall, as soon as
may be after acceptance, cause the application as accepted together with the conditions or limitations, if
any, subject to which it has been accepte d, to be adver tised in the prescribed manner:
Provided that the Registrar may cause the application to be advertised before acceptance if it relates
to a trade mark to which sub -section ( 1) of section 9 and sub -sections ( 1) and ( 2) of section 11 apply, or in
any other case where it appears to him that it is expedient by reason of any excepti onal circumstances so
to do.
(2) Where
(a) an application has been advertised before acceptance under sub -section ( 1); or
(b) after adv ertisement of an application,
(i) an error in the app lication has been corrected; or
16
(ii) the application has been permitted to be amended under section 22,
the Registrar may in his discretion cause the application to be advertised again or in any case falling under
clause ( b) may, inste ad of causing the application to be advertised again, notify in the prescribed manner
the correction or ame ndment made in the application.
21. Opposition to registration .1[(1) Any person may, within four months from the date of the
advertisement or re-advertisement of an application for registration, give notice in writing in the
prescribed manner and on payment of such fee as may be prescribed, to the Registrar, of opposition to the
registration .]
(2) The Registrar shall serve a copy of the notice o n the applicant for registration and, within two
months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send
to the Registrar in the prescribed manner a counterstatement of the grounds on which he relies for his
application, and if he does not do so he shall be deemed to have abandoned his application.
(3) If the applicant sends such counter -statement, the Registrar shall serve a copy thereof on the
person giving notice of opposition.
(4) Any evidence upon whi ch the opponent and the applicant may rely shall be submitted in the
prescribed manner and within the prescribed time to the Registrar, and the Registrar shall give an
opportunity to them to be heard, if they so desire.
(5) The Registrar shall, after heari ng the parties, if so required, and considering the evidence, decide
whether and subject to what conditions or limitations, if any, the registration is to be permitted, and may
take into account a ground of objection whether reli ed upon by the opponent or not.
(6) Where a person giving notice of opposition or an applicant sending a counter -statement after
receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require
him to give security for the costs of proceed ings before him, and in default of such security being duly
given, may treat the opposition or application, as the case may be, as abandoned.
(7) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of
opposition or a counter -statement o n such terms as he thinks just.
22. Correction and amendment .The Registrar may, on such terms as he thinks just, at any time,
whether before or after acceptance of an application for registration under section 18, permit the
correction of any error in or in connection with the application or permit a n amendment of the
application:
Provided that if an amendment is made to a single application referred to in sub -section ( 2) of section
18 involving division of such application in to two or more applications, the date of making of the initial
application shall be deemed to be the date of making of the divided application s so divided.
23. Registration .(1) Subject to the provisions of section 19, when an application for registration of
a trade mark has been accepted and either
(a) the application has not been opposed and the time for notic e of opposition has expired; or
(b) the application has been opposed and the opposition has been deci ded in favour of the
applicant,
the Registrar shall, unless the Central Government otherwise directs, register the said trade mark 2[within
eighteen months of the filing of the application] and the trade mark when registered shall be registered as
of the date of the making of the said application and that date shall, subject to the provisions of section
154, be deemed to be the date of registration.
(2) On the registration of a trade mark, th e Registrar shall issue to the applicant a certificate in the
prescribed form of the registration thereof, sealed with the se al of the Trade Marks Registry.
(3) Where registration of a trade mark is not completed within twelve months from the date of the
application by reason of default on the part of the applicant, the Registrar may, after giving notice to the
1. Subs. by Act 40 of 2010, s. 3, for sub-section ( 1) (w.e.f. 8 -7-2013).
2. Ins. by s. 4, ibid. (w.e.f. 8 -7-2013).
17
applicant in the prescribed manner, treat the application as abandoned unless it is completed within the
time specifie d in that behalf in the notice .
(4) The Registrar may amend the register or a certificate of registration for the purpose of correcting a
cleric al error or an obvious mistake.
24. Jointly owned trade marks .(1) Save as provided in sub -section ( 2), nothing in this Act shall
authorise the registration of two or more persons who use a trade mark independently, or propose so as to
use it , as joint proprietors thereof.
(2) Where the relations between two or more persons interested in a trade mark are such that no one
of them is entitled as between himself and the other or ot hers of them to use it except
(a) on be half of both or all of them; or \
(b) in relation to an article or service with which both or all of them are co nnected in the course of
trade,
those persons may be registered as joint proprietors of the trade mark, and this Act shall have effect in
relation to any rights to the use of the trade mark vested in those persons as if those rights had been vested
in a single person.
25. Duration, renewal, removal and restoration of re gistration .(1) The registration of a trade
mark , after the commencement of this Act, shall be for a period of ten years, but may be renewed from
time to time in accordance with the provisions of this section.
(2) The Registrar shall, on application made by the registered proprietor of a trade mark in the
prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew
the registration of the trade mark for a period of ten years from the date of expiration of the original
registration or of the last renewal of registration, as the case may be (which date is in this section referred
to as the expira tion of the last registration).
(3) At the prescribed time before the expiration of the last registration of a trade mark the R egistrar
shall send notice in the prescribed manner to the registered proprietor of the date of expiration and the
conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained,
and, if at the expiration of the time pr escribed in that behalf those conditions have not been duly complied
with the Registrar may remove th e trade mark from the register:
Provided that the Registrar shall not remove the trade mark from the register if an application is made
in the prescribed f orm and the prescribed fee and surcharge is paid within six months from the expiration
of the last registration of the trade mark and shall renew the registration of the trade mark for a period of
ten years under sub -section ( 2).
(4) Where a trade mark has been removed from the register for non -payment of the prescribed fee, the
Registrar shall, after six months and within one year from the expiration of the last registration of the
trade mark, on receipt of an application in the prescribed form and on paym ent of the prescribed fee, if
satisfied that it is just so to do, restore the trade mark to the register and renew the registration of the trade
mark either generally or subject to such conditions or limitations as he thinks fit to impose, for a period of
ten years from the expir ation of the last registration.
26. Effect of removal from register for failure to pay fee for renewal .Where a trade mark has
been removed from the register for failure to pay the fee for renewal, it shall nevertheless, for the pur pose
of any application for the registration of another trade mark during one year, next after the date of the
removal, be deemed to be a trade mark already on the register, unless the 1[Registrar or the High Court, as
the case may be ] is satisfied either
(a) that there has been no bona fide trade use of the trade mark which has been removed during
the two years immedi ately preceding its removal; or
1. Subs. by Act 33 of 2021, s. 21, for Tribunal (w.e.f. 4 -4-2021).
18
(b) that no deception or confusion would be likely to arise from the use of the trade mark which is
the subj ect of the application for registration by reason of any previous use of the trade mark which
has been removed.
CHAPTER IV
EFFECT OF REGISTRATION
27. No action for infringem ent of unregistered trade mark .(1) No person shall be entitled to
institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade
mark.
(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off
goods or services as the goods of another person or as s ervices provided by another person, or t he
remedies in respect thereof.
28. Ri ghts conferred by registration .(1) Subject to the other provisions of this Act, the
registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive
right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is
registered and to obtain relief in respect of infringement of the trade mark in t he manner provided by this
Act.
(2) The exclus ive right to the use of a trade mark given under sub -section ( 1) shall be subject to any
conditions and limitations to whi ch the registration is subject.
(3) Where two or more persons are registered proprietors of trade marks , which are identical with or
nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so
far as their respective rights are subject to any conditions or limitations entered on the register) be deemed
to have been acquired by any one of th ose persons as against any other of those persons merely by
registration of the trade marks |
emed
to have been acquired by any one of th ose persons as against any other of those persons merely by
registration of the trade marks but each of those persons has otherwise the same rights as against other
persons (not being registered users using by way of permitted use) as he would have if he w ere the sole
registered proprietor.
29. Infringe ment of registered trade marks .(1) A registered trade mark is infringed by a person
who, not being a registered proprietor or a person using by way of permitted use, uses in the course of
trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or
services in respect of which the trade mark is registered and in such manner as to render the use of the
mark likely to be taken as being used as a trade mark.
(2) A regi stered trade mark is infringed by a person who, not being a registered proprietor or a person
using by way of permitted use, uses in the course of t rade, a mark which because of
(a) its identity with the registered trade mark and the similarity of the goo ds or services covered
by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the goods or services
covered by such registered trade mark; or
(c) its identity with the registered trade mark and t he identity of the goods or services covered by
such registered trade mark,
is likely to cause confusion on the part of the public, or which is likely to have an association with the
registered trade mark.
(3) In any case falling under clause ( c) of sub -section ( 2), the court shall presume that it is likely to
cause confu sion on the part of the public.
(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person
using by way of permitted use, uses in the course of trade, a mark which
(a) is identical with or similar to the registered trade mark; and
19
(b) is used in relation to goods or services which are not similar to those for which the trade mark
is registered ; and
(c) the registered trade mark has a reputation in India and the use of the mark without due cause
takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade
mark.
(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade
name or part of his trade name, or name of his business concern or part of the name , of his business
concern dealing in goods or services in respect of whic h the trade mark is registered.
(6) For the purposes of this section, a person uses a registere d mark, if, in particular, he
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes
under the registered trade mark, or offers or supplies services u nder the registered trade mark;
(c) imports or e xports goods under the mark; or
(d) uses the registered trade mark on bus iness papers or in advertising.
(7) A registered trade mark is infringed by a person who applies such registered trade mark to a
material i ntended to be used for labeling or packaging goods, as a business paper, or for advertising goods
or services, provided such person, when he applied the mark, knew or had reason to believe that the
application of the mark was not duly authorise d by the pro prietor or a licensee.
(8) A registered trade mark is infringed by any advertising of that t rade mark if such advertising
(a) takes unfair advantage of and is contrary to honest practices in indus trial or commercial
matters; or
(b) is detrimental t o its distinctive character; or
(c) is against th e reputation of the trade mark.
(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade
mark may be infringed by the spoken use of those words as well as by their visua l representation and
reference in this section to the use of a mark shall be construed accordingly.
30. Limits on e ffect of registered trade mark .(1) Nothing in section 29 shall be construed as
preventing the use of a registered trade mark by any person for the purposes of identifying goods or
services as those of th e proprietor provided the use
(a) is in accordance with honest practices in indust rial or commercial matters, and
(b) is not such as to take unfair advantage of or be detrimental to the disti nctive charact er or
repute of the trade mark.
(2) A registered t rade mark is n ot infringed where
(a) the use in relation to goods or services indicates the kind, quality, quantity, intended purpose,
value, geographical origin, the time of production of go ods or of rendering of services or other
charac teristics of goods or services;
(b) a trade mark is registered subject to any conditions or limitations, the use of the trade mark in
any manner in relation to goods to be sold or otherwise traded in, in any p lace, or in relation to goods
to be exported to any market or in relation to services for use or available for acceptance in any place
or country outside India or in any other circumstances, to which, having regard to those conditions or
limitations, th e registration does not extend;
(c) the us e by a person of a trade mark
(i) in relation to goods connected in the course of trade with the proprietor or a registered user
of the trade mark if, as to those goods or a bulk of which they form part, the register ed proprietor
or the registered user conforming to the permitted use has applied the trade mark and has not
20
subsequently removed or obliterated it, or has at any time expressly or impliedly consented t o the
use of the trade mark; or
(ii) in relation to services to which the proprietor of such mark or of a registered user
conforming to the permitted use has applied the mark, where the purpose and effect of the use of
the mark is to indicate, in accordance with the fact, that those services have been perfo rmed by
the proprietor or a registered user of the mark;
(d) the use of a trade mark by a person in relation to goods adapted to form part of, or to be
accessory to, other goods or services in relation to which the trade mark has been used without
infringe ment of the right given by registration under this Act or might for the time being be so used, if
the use of the trade mark is reasonably necessary in order to indicate that the goods or services are so
adapted, and neither the purpose nor the effect of th e use of the trade mark is to indicate, otherwise
than in accordance with the fact, a connection in the course of trade between any person and the
goods o r services, as the case may be;
(e) the use of a registered trade mark, being one of two or more trade marks registered under this
Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade
mark given by r egistration under this Act.
(3) Where the goods bearing a registered trade mark are lawfully acquired by a person, the sale of the
goods in the market or otherwise dealing in those goods by that person or by a person claiming under or
through him is not infringement of a trade mark by reason only of
(a) the registered trade mark having been assigned by the reg istered proprietor to some other
person, after the acquisition of those goods; or
(b) the goods having been put on the market under the registered trade mark by the proprietor or
with his consent.
(4) Sub -section ( 3) shall not apply where there exists legi timate reasons for the proprietor to oppose
further dealings in the goods in particular, where the condition of the goods , has been changed or
impaired after th ey have been put on the market.
31. Registration to be prima facie evidence of validity .(1) In all legal proceedings relating to a
trade mark registered under this Act (including applications under section 57), the original registration of
the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie
evidence of the validity thereof.
(2) In all legal proceedings as aforesaid a registered trade mark shall not be held to be invalid on the
ground that it was not a registrable trade mark under section 9 except upon evidence of distinctiveness
and that such evidence was not submitted to the Registrar before registration, if it is proved that the trade
mark had been so used by the registered proprietor or his predecessor in title as to have become
distincti ve at the date of registration.
32. Protection of reg istration on ground of di stinctiveness in certain cases .Where a trade mark
is registered in breach of sub -section ( 1) of section 9, it shall not be declared invalid if, in consequence of
the use which has been made of it, it has after registration and bef ore commencement of any legal
proceedings challenging the validity of such registration, acquired a distinctive character in relation to the
goods or servi ces for which it is registered.
33. Effect of acquiescence .(1) Where the proprietor of an earlier tr ade mark has acquiesced for a
continuous period of five years in the use of a registered trade mark, being aware of that use, he shall no
longer be entitled on the bas is of that earlier trade mark
(a) to apply for a declaration that the registration of th e later trade mark is invalid, or
(b) to oppose the use of the later trade mark in relation to the goods or services in relatio n to
which it has been so used,
unless the registration of the later trade mark was not applied in good faith.
21
(2) Where sub-section ( 1) applies, the proprietor of the later trade mark is not entitled to oppose the
use of the earlier trade mark, or as the case may be, the exploitation of the earlier right, notwithstanding
that the earlier trade mark may no longer be invoke d against his later trade mark.
34. Saving for vested rights .Nothing in this Act shall entitle the proprietor or a registered user of
registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or
nearly resembli ng it in relation to goods or services in relation to which that person or a predecessor in
title of his has continuously used that trade mark from a date prior
(a) to the use of the first -mentioned trade mark in relation to those goods or services by the
proprietor or a predecessor in title of his; or
(b) to the da te of registration of the first -mentioned trade mark in respect of those goods or
services in the name of the proprietor of a predecessor in title of his;
whichever is the earlier, and the Regis trar shall not refuse (on such use being proved) to register the
second mentioned trade mark by reason only of the registration of the first -mentioned trade mark.
35. Saving for use of name, address or de scription of goods or services .Nothing in this Act
shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide
use by a person of his own name or that of his place of business, or of the name, or of the name of the
place of business, of a ny of his predecessors in business, or the use by any person of any bona fide
description of the character or quality of his goods or services.
36. Saving for words used as name or description of an a rticle or substance or service .(1) The
registration of a trade mark shall not be deemed to have become invalid by reason only of any use after
the date of the registration of any word or words which the trade mark contains or of which it consists as
the name or description of an a rticle or substance or service :
Provided that, if it is proved either
(a) that there is a well known and established use of the said word as the name or description of
the article or substance or service by a person or persons carrying on trade therein, not being use in
relation to go ods or services connected in the course of trade with the proprietor or a registered user
of the trade mark or (in the case of a certification trade mark) in relation to goods or services certified
by the proprietor; or
(b) that the article or substance wa s formerly manufact ured under a patent that a period of two
years or more after the c esser of the patent has elapsed and that the said word is the only practicable
name or description of the article or substance,
the provisions of sub -section ( 2) shall app ly.
(2) Where the facts mentioned in clause ( a) or clause ( b) of the proviso to sub -section ( 1) are proved
with respect to any words, then,
(a) for the purposes of any proceedings under section 57 if the trade mark consists solely of such
words, the registration of the trade mark, so far as regards registration in respect of the article or
substance in question or of any goods of the same description, or of the services or of any services of
the same description, as the case requires, shall be deemed to be an entry wro ngly remaining on the
register;
(b) for the purposes of any other legal proceedings r elating to the trade mark,
(i) if the trade mark consists solely of such words, all rights of the proprietor under this Act or
any other law t o the use of the trade mark; or
(ii) if the t rade mark contains such words and other matter, all such right of the propr ietor to
the use of such words,
in relation to the article or substance or to any goods of the same description, or to the service or to any
servi ces of the same description, as the case requires, shall be deemed to have ceased on the date on
which the use mentioned in clause ( a) of the proviso to sub -section ( 1) first became well known and
established or at the expiration of the period of two years mentioned in clause ( b) of the said proviso.
22
1[CHAPTER IVA
SPECIAL PROVISIONS RELATING TO PROTECTION OF TRADE MARKS THROUGH INTERNATIONAL
REGISTRATION UNDER THE MADRID PROTOCOL
36A. Application of Act in case of international registration under Madrid Protocol .The
provisions of this Chapter shall apply to international applications and international registrations under
the Madrid Protocol.
36B. Definitions .In this Chapter, unless the context otherwise requires,
(a) application, in relation to a Contracting State or a Contracting Organisation, means an
application made by a person who is a citizen of, or is domiciled in, or has a real and effective
industrial or commercial establishment in, that Contracting State or a State which is a member of th at
Contracting Organisation, as the case may be.
Explanation. For the purposes of this clause, real and effective industrial or commercial
establishment means and includes any establishment where some bona fide industrial or commercial
activity takes pla ce and need not necessarily be the principal place of business;
(b) basic application means an application for the registration of a trade mark filed under
section 18 and which is used as a basis for applying for an international registration;
(c) basic registration means the registration of a trade mark under section 23 and which is used
as a basis for applying for an international registration;
(d) Common Regulations means the Regulations concerning the implementation of the Madrid
Protocol;
(e) Co ntracting Organisation means a Contracting Party that is an intergovernmental
organisation;
(f) Contracting Party means a Contracting State or Contracting Organisation party to the
Madrid Protocol;
(g) Contracting State means a country party to the Ma drid Protocol;
(h) international application |
rid Protocol;
(g) Contracting State means a country party to the Ma drid Protocol;
(h) international application means an application for international registration or for extension
of the protection resulting from an international registration to any Contracting Party made under the
Madrid Protocol;
(i) International B ureau means the International Bureau of the World Intellectual Property
Organisation;
(j) international registration means the registration of a trade mark in the register of the
International Bureau effected under the Madrid Protocol;
(k) Madrid Agree ment means the Madrid Agreement Concerning the International Registration
of Marks adopted at Madrid on the 14th day of April, 1891, as subsequently revised and amended;
(l) Madrid Protocol means the Protocol relating to the Madrid Agreement Concerning the
International Registration of Marks adopted at Madrid on the 27th day of June, 1989, as amended
from time to time.
36C. Trade Marks Registry to deal with international applications .Notwithstanding anything
contained in sub -section ( 3) of section 5, an international application shall be dealt with by the head office
of the Trade Marks Registry or such branch office of the Registry, as the Central Government may, by
notification in the Official Gazette, specify.
36D. International application originating from India .(1) Where an application for the
registration of a trade mark has been made under section 18 or a trade mark has been registered under
section 23, the applicant or the registered proprietor may make an international application on the form
prescribed by the Common Regulations for international registration of that trade mark.
1. Ins. by Act 40 of 2010, s. 5 (w.e.f. 8 -7-2013).
23
(2) A person holding an international registration may make an international application on the form
prescribed by the Common Regulations for extension of the protectio n resulting from such registration to
any other Contracting Party.
(3) An international application under sub -section ( 1) or sub -section ( 2) shall designate the
Contracting Parties where the protection resulting from the international registration is requi red.
(4) The Registrar shall certify in the prescribed manner that the particulars appearing in the
international application correspond to the particulars appearing, at the time of the certification, in the
application under section 18 or the registration under section 23, and shall indicate the date and number of
that application or the date and number of that registration as well as the date and number of the
application from which that registration resulted, as the case may be, and shall within the pres cribed
period, forward the international application to the International Bureau for registration, also indicating
the date of the international application.
(5) Where at any time before the expiry of a period of five years of an international registration ,
whether such registration has been transferred to another person or not, the application under section 18
or the registration under section 23, as the case may be, has been withdrawn or cancelled or has expired or
has been finally refused in respect of a ll or some of the goods or services listed in the international
registration, the protection resulting from such international registration shall cease to have effect:
Provided that where an appeal is made against the decision of registration and an action requesting for
withdrawal of application or an opposition to the application has been initiated before the expiry of the
period of five years of an international registration, any final decision resulting into withdrawal,
cancellation, expiration or refus al shall be deemed to have taken place before the expiry of five years of
the international registration.
(6) The Registrar shall, during the period of five years beginning with the date of international
registration, transmit to the International Bureau e very information referred to in sub -section ( 5).
(7) The Registrar shall notify the International Bureau the cancellation to be effected to an
international registration keeping in view the current status of the basic application or the basic
registration, as the case may be.
36E. International registrations where India has been designated .(1) The Registrar shall, after
receipt of an advice from the International Bureau about any international registration where India has
been designated, keep a record of the particulars of that international registration in the prescribed
manner.
(2) Where, after recording the particulars of any international registration referred to in
sub-section ( 1), the Registrar is satisfied that in the circumstances of the case the protection of trade mark
in India should not be granted or such protection should be granted subject to conditions or limitations or
to conditions additional to or different from the conditions or limitations subject to which the internatio nal
registration has been accepted, he may, after hearing the applicant if he so desires, refuse grant of
protection and inform the International Bureau in the prescribed manner within eighteen months from the
date on which the advice referred to in sub -section ( 1) was received.
(3) Where the Registrar finds nothing in the particulars of an international registration to refuse grant
of protection under sub -section ( 2), he shall within the prescribed period cause such international
registration to be adverti sed in the prescribed manner.
(4) The provisions of sections 9 to 21 (both inclusive), 63 and 74 shall apply mutatis mutandis in
relation to an international registration as if such international registration was an application for
registration of a trade mark under section 18.
(5) When the protection of an international registration has not been opposed and the time for notice
of opposition has expired, the Registrar shall within a period of eighteen months of the receipt of advice
under sub -section ( 1) notify the International Bureau its acceptance of extension of protection of the trade
mark under such international registration and, in case the Registrar fails to notify the International
Bureau, it shall be deemed that the protection has been extended to the trade mark.
(6) Where a registered proprietor of a trade mark makes an international registration of that trade
mark and designates India, the international registration from the date of the registration shall be deemed
24
to replace the registration h eld in India without prejudice to any right acquired under such previously held
registration and the Registrar shall, upon request by the applicant, make necessary entry in the register
referred to in sub -section ( 1) of section 6.
(7) A holder of internati onal registration of a trade mark who designates India and who has not been
extended protection in India shall have the same remedy which is available to any person making an
application for the registration of a trade mark under section 18 and which has n ot resulted in registration
under section 23.
(8) Where at any time before the expiry of a period of five years of an international registration,
whether such registration has been transferred to another person or not, the related basic application or, as
the case may be, the basic registration in a Contracting Party other than India has been withdrawn or
cancelled or has expired or has been finally refused in respect of all or some of the goods or services
listed in the international registration, the prot ection resulting from such international registration in India
shall cease to have effect.
36F. Effects of international registration .(1) From the date of the international registration of a
trade mark where India has been designated or the date of the re cording in the register of the International
Bureau about the extension of the protection resulting from an international registration of a trade mark to
India, the protection of the trade mark in India shall be the same as if the trade mark had been registered
in India.
(2) The indication of classes of goods and services given by the applicant shall not bind the Registrar
with regard to the determination of the scope of the protection of the trade mark.
36G. Duration and renewal of international regis tration .(1) The international registration of a
trade mark at the International Bureau shall be for a period of ten years and may be renewed for a period
of ten years from the expiry of the preceding period.
(2) Subject to payment of a surcharge prescribe d by the rules, a grace period of six months shall be
allowed for renewal of the international registration. ]
CHAPTER V
ASSIGNMENT AND TRANSMISSION
37. Power of registered propriet or to assign and give receipts .The person for the time being
entered in the register as proprietor of a trade mark shall, subject to the provisions of this Act and to any
rights appearing from the register to be vested in any other person, have power to assign the trade mark,
and to give effectual receipts for any con sideration f or such assignment.
38. Assignability and transmissibi lity of registered trade marks .Notwithstanding anything in
any other law to the contrary, a registered trade mark shall, subject to the provisions of this Chapter, be
assignable and transmissible, whether with or without the goodwill of the business concerned and in
respect either of all the goods or services in respect of which the trade mark is registered or of some o nly
of those goods or services.
39. Assignability and transmissibili ty of unregis tered trade marks .An unregistered trade mark
may be assigned or transmitted with or without the good will of the business concerned.
40. Restriction on assignment or transmission where multiple exc lusive rights would be
created .(1) Notwithstanding anythin g in sections 38 and 39, a trade mark shall not be assignable or
transmissible in a case in which as a result of the assignment or transmission there would in the
circumstances subsist, whether under this Act or any other law, exclusive rights in more than one of the
persons concern ed to the use, in relation to
(a) same goods or services;
(b) same de scription of goods or services;
(c) goods or services or description of goods or services which are associated with each other,
25
of trade marks nearly resemblin g each other or of identical trade mark, if having regard to the similarity
of the goods and services and to the similarity of the trade marks, the use of the trade marks in exercise of
those rights would be likely to deceive or cause confusion:
Provided t hat an assignment or transmission shall not be deemed to be invalid under this sub -section
if the exclusive rights subsisting as a result thereof in the persons concerned respectively are, having
regard to limitations imposed thereon, such as not to be exe rcisable by two or more of those persons in
relation to goods to be sold, or otherwise traded in, within India otherwise than for export therefrom, or in
relation to goods to be exported to the same market outside India or in relation to services for use a t any
place in Ind ia or any place outside India in relation to services ava ilable for acceptance in India.
(2) The proprietor of a registered trade mark who proposes to assign it may submit to the Registrar in
the prescribed manner a statement of case setting out the circumstances and the Registrar may issue to
him a certificate stating whether, having regard to the similarity of the goods or services and of the trade
marks referred to in the case, the proposed assignment would or would not be invalid under
sub-section ( 1), and a certificate so issued shall, subject to appeal and unless it is shown that the
certificate was obtained by fraud or misrepresentation, be conclusive as to the validity or invalidity under
sub-section ( 1) of the assignment in so far as such validity or invalidity depends upon the facts set out in
the case, but, as regards a certificate in favour of validity, only if application for the registration under
section 45 of the title of the person becoming entitled is made within six months from the date on w hich
the certificate is issued.
41. Restriction on assignment or transmiss ion when exclusive rights would be creat ed in
different parts of India .Notwithstanding anything in sections 38 and 39, a trade mark shall not be
assignable or transmissible in a case in which as a result of the assignment or transmission there would in
the circumstances subsist, whether un der this Act or any other law
(a) an exclusive right in one of the persons concerned, to the use of the trade mark limited to use
in relation to goods to be sold or otherwise traded in, in any place in India, or in relat ion to services
for use, or services available for accept ance in any place in India; and
(b) an exclusive right in another of these persons concerned, to the use of a trade m ark nearly
resembling the first -mentioned trade mark or of an identi cal trade mark in relation to
(i) the sa me goods or services; or
(ii) the same descr iption of goods or services; or
(iii) services which are associated with those goods or goods of that description or goods
which are associated with those services o r services of that description,
limited to use in relation to goods to be sold or otherwise traded in, or services for use, or available for
acceptanc e, in any other place in India:
Provided that in any such case, on application in the prescribed manner by the proprietor of a trade
mark who proposes to assign it, or by a person who claims that a registered trade mark has been
transmitted to him or to a predecessor in title of his since the commencement of this Act, the Registrar, if
he is satisfied that in all the circumstanc es the use of the trade mark in exercise of the said rights would
not be contrary to the public interest may approve the assignment or transmission, and an assignment or
transmission so approved shall not, unless it is shown that the approval was obtained by fraud or
misrepresentation, be deemed to be invalid under this section or section 40 if application for the
registration under section 45 of the title of the person becoming entitled is made within six months from
the date on which the approval is given or, in the case of a transmiss ion, was made before that date.
42. Conditions for assignment otherwise than in connection w ith the goodwill of a business .
Where an assignment of a trade mark, whe ther registered or unregistered is made otherwise than in
connection with the goodwill of the business in which the mark has been or is used, the assignment shall
not take effect unless the assignee, not later than the expiration of six months from the date on which the
assignment is made or within such extended per iod, if any, not exceeding three months in the aggregate,
as the Registrar may allow, applies to the Registrar for directions with respect to the advertisement of the
assignment, and advertises it in such form and manner and within such period as the Regis trar may direct.
26
Explanation .For the purposes of this section, an assignment of a trade mark of the following
description shall not be deemed to be an assignment made otherwise than in connection with the goodwill
of the business in w hich the mark is used , namely:
(a) an assignment of a trade mark in respect only of some of the goods or services for which the
trade mark is registered accompanied by the transfer of the goodwill of the business concerned in
those goods or services only; or
(b) an assignment of a trade mark which is used in relation to goods exported from India or in
relation to services for use outside India if the assignment is accompanied by the transfer of the
goodwi ll of the export business only.
43. Assignability and transmissibilit y of certification trade marks .A certification trade mark
shall not be assignable or transmissible otherwise than with the consent of the Registrar, for which
application shall be made in wr iting in the prescribed manner.
44. Assignability and transmissibi lity of associated trade marks .Associated trade marks shall
be assignable and transmissible only as a whole and not separately, but, subject to the provisions of this
Act, they |
shall
be assignable and transmissible only as a whole and not separately, but, subject to the provisions of this
Act, they shall, for all other purposes, be deemed to have been reg istered as separate t rade mark.
1[45. Registration of assignments and transmissions .(1) Where a person becomes entitled by
assignment or transmission to a registered trade mark, he shall apply in the prescribed manner to the
Registrar to register his title, and the Registrar shall, on receipt of the application, register him as the
proprietor of the trade mark in respect of the goods or services in respect of which the assignment or
transmission has effect, and shall cause particulars of such assignment or transmission to be e ntered on
the register.
(2) The Registrar may require the applicant to furnish evidence or further evidence in proof of title
only where there is a reasonable doubt about the veracity of any statement or any document furnished.
(3) Where the validity of an assignment or transmission is in dispute between the parties, the
Registrar may refuse to register the assignment or transmission until the rights of the parties have been
determined by a competent court and in all other cases the Registrar shall dispose of the application
within the prescribed period.
(4) Until an application under sub -section ( 1) has been filed, the assignment or transmission shall be
ineffective against a person acquiring a conflicting interest in or under the registered trade mark with out
the knowledge of assignment or transmission. ]
CHAPTER VI
USE OF TRADE MARKS AND REGISTERED USERS
46. Proposed use of trade mar k by company to be formed, etc .(1) No application for the
registration of a trade mark in respect of any goods or services shall be refused nor shall permission for
such registration be withheld, on the ground only that it appears that the applicant does not use or propose
to use the trade mark if th e Registrar is satisfied that
(a) a company is about to be formed and registe red under the Companies Act, 1956 (1 of 1956)
and that the applicant intends to assign the trade mark to that company with a view to the use thereof
in relation to those goods or services by the company, or
(b) the proprietor intends it to be used by a per son, as a registered user after the registration of the
trade mark.
(2) The provisions of section 47 shall have effect, in relation to a trade mark registered under the
powers conferred by this sub -section, as if for the reference, in clause ( a) of sub -section ( 1) of that
section, to the intention on the part of an applicant for registration that a trade mark should be used by
him there were substituted a reference to the intention on his part that it should be used by the compan y or
registered user concern ed.
1. Subs. by Act 40 of 2010, s. 6, for section 45 (w.e.f. 8 -7-2013).
27
(3) The 1[Registrar or the High Court, as the case may be ] may, in a case to which sub -section ( 1)
applies, require the applicant to give security for the costs of any proceedings relating to any opposition or
appeal, and in default of such security be ing duly given, may trea t the application as abandoned.
(4) Where in a case to which sub -section ( 1) applies, a trade mark in respect of any goods or services
is registered in the name of an applicant who, relies on intention to assign the trade mark to a company,
then, unless within such period as may be prescribed or within such further period not exceeding six
months as the Registrar may, on application being made to him in the prescribed manner, allow, the
company has been registered as the proprietor o f the trade mark in respect of those goods or services, the
registration shall cease to have effect in respect thereof at the expiration of that period and the Registrar
shall amend the register accordingly.
47. Removal from register and imposition of li mitations on ground of non -use.(1) A registered
trade mark may be taken off the register in respect of the goods or services in respect of which it is
registered on application made in the prescribed manner to the Registrar or the 2[High Court ] by any
person a ggrieved on the ground either
(a) that the trade mark was registered without any bona fide intention on the part of the applicant
for registration that it should be used in relation to those goods or services by him or, in a case to
which the provisions of section 46 apply, by the company concerned or the registered user, as the case
may be, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods
or services by any proprietor thereof for the time bei ng up to a date three months before the date of
the application; or
(b) that up to a date three months before the date of the application, a continuous period of five
years from the date on which the trade mark is actually entered in the register or longer had elapsed
during which the trade mark was registered and during which there was no bona fide use thereof in
relation to those goods or services by any proprie tor thereof for the time being:
Provided that except where the applicant has been permitted under section 12 to register an identical
or nearly resembling trade mark in respect of the goods or services in question, or where the 1[Registrar or
the High Court, as the case may be ] is of opi nion that he might properly be permitted so to register such a
trade mark, the 1[Registrar or the High Court, as the case may be ] may refuse an application under clause
(a) or clause ( b) in relation to any goods or services, if it is shown that there has b een, before the relevant
date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor
thereof for the time being in relation to
(i) goods or servi ces of the same description; or
(ii) goods or services associate d with those goods or services of that description being goods or
services, as the case may be, in respect of which the trade mark is registered.
(2) Where in relation to any goods or services in respect of which a trade mark is registered
(a) the circumstances referred to in clause ( b) of sub -section ( 1) are shown to exist so far as
regards non -use of the trade mark in relation to goods to be sold, or otherwise traded in a particular
place in India (otherwise than for export from India), or in rela tion to goods to be exported to a
particular market outside India; or in relation to services for use or available for acceptance in a
particular place in India or for use in a parti cular market outside India; and
(b) a person has been permitted under section 12 to register an identical or nearly resembling
trade mark in respect of those goods, under a registration extending to use in relation to goods to be
so sold, or otherwise traded in, or in relation to goods to be so exported, or in relation to se rvices for
use or available for acceptance in that place or for use in that country, or the tribunal is of opinion that
he might properly be permitted so to register such a trade mark,
on application by that person in the prescribed manner to the 2[High Co urt] or to the Registrar, the
tribunal may impose o n the registration of the first -mentioned trade mark such limitations as it thinks
proper for securing that that registration sha ll cease to extend to such use.
1. Subs. by Act 33 of 2021, s . 21, for tribunal (w.e.f. 4 -4-2021).
2. Subs. by s. 21, ibid., for Appellate Board (w.e.f. 4 -4-2021).
28
(3) An applicant shall not be entitled to re ly for the purpose of clause ( b) of sub -section ( 1) or for the
purposes of sub -section ( 2) on any non -use of a trade mark which is shown to have been due to special
circumstances in the trade, which includes restrictions on the use of the trade mark in Ind ia imposed by
any law or regulation and not to any intention to abandon or not to use the trade mark in relation to the
goods or services to which the application relates.
48. Registered user s.(1) Subject to the provisions of section 49, a person other than the registered
proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the
goods or services in respect of whic h the trade mark is registered.
(2) The permitted use of a trade mark shall be deemed to be us ed by the proprietor thereof, and shall
be deemed not to be used by a person other than the proprietor, for the purposes of section 47 or for any
other purpose for which such use is material u nder this Act or any other law.
49. Registratio n as registered u ser.(1) Where it is proposed that a person should be registered as
a registered user of a trade mark, the registered proprietor and the proposed registered user shall jointly
apply in writing to the Registrar in the prescribed manner, and every such app lication shall be
accompanied by
(a) the agreement in writing or a duly authenticated copy thereof, entered into between the
registered proprietor and the proposed registered user with respect to the permitted use of the trade
mark; and
(b) an affidavit made by the registered proprietor or by some person authorise d to the satisfi cation
of the Re gistrar to act on his behalf,
(i) giving particulars of the relationship, existing or proposed, between the registered
proprietor and the proposed registered user, including particulars showing the degree of control
by the proprietor over the permitted use which their relationship will confer and whether it is a
term of their relationship that the proposed registered user shall be the sole registered user or that
there shall be any other restriction as to persons for whose registration as registered users
application may be made;
(ii) stating the goods or services in respect of which registration is proposed;
(iii) stating the conditions or restrictio ns, if any, proposed with respect to the characteristics
of the goods or services, to the mode or place of permitt ed use, or to any other matter;
(iv) stating whether the permitted use is to be for a period or without limit of period, and, if
for a pe riod, the duration thereof; and
(c) such further documents or other evidence as may be required by the Reg istrar or as may be
prescribed.
(2) When the requirements of sub -section ( 1) have been complied with, the Registrar shall register the
proposed registered user in respect of the goods or services as to which he is so satisfied.
(3) The Registrar shall issue notice in the prescribed m anner of the registration of a person as a
registered user, to other registered users of the trade mark, if any.
(4) The Registrar shall, if so requested by the applicant, take steps for securing that information given
for the purposes of an application under this section (other than matters entered in the register) is no t
disclosed to rivals in trade.
50. Power of Registrar for variation or cancellation of r egistration as registered user .(1)
Without prejudice to the provisions of section 57, the registration o f a person as registered user
(a) may be varied by the Registrar as regards the goods or services in respect of whi ch it has
effect on the application in writing in the prescribed manner of the registere d proprietor of the trade
mark;
(b) may be cancelled by the Registrar on the application in writing in the prescribed manner of
the registered proprietor or of the regi stered user or of any other reg istered user of the trade mark;
29
(c) may be cancelled by the Registrar on the application in writing in the prescribed manner of
any person on any of t he following grounds, namely:
(i) that the registered user has used the tr ade mark otherwise than in accordance with the
agreement under clause ( a) of sub -section ( 1) of section 49 or in such way as to cause or to be
likely to cause, deception or confusion;
(ii) that the proprietor or the registered user misrepresented, or faile d to disclose, some fact
material to the application for registration which if accurately represented or disclosed would not
have justified the regis tration of the registered user;
(iii) that the circumstances have changed since the date of registration in such a way that at
the date of such application for cancellation they would not have justified regis tration of the
registered user;
(iv) that the registration ought not to have been effected having regard to rights vested in the
applicant by virtue of a c ontract in the perform ance of which he is interested;
(d) may be cancelled by the Registrar on his own motion or on the application in writing in the
prescribed manner by any person, on the ground that any stipulation in the agreement between the
registere d proprietor and the registered user regarding the quality of the goods or services in relation
to which the trade mark is to be used is either not being enforced or is not being complied with;
(e) may be cancelled by the Registrar in respect of any goods or services in relation to which the
trade mark is no longer registered.
(2) The Registrar shall issue notice in the prescribed manner in respect of every application under this
section to the registered proprietor and each registered user (not being th e applicant) of the trade mark.
(3) The procedure for cancel ling a registration shall be such as may be prescribed:
Provided that before cancel ling of registration, the registered proprietor shall be given a reasona ble
opportunity of being heard.
51. Power of Registrar to call for information relating to agreement in respect of registered
users .(1) The Registrar may , at any time during the continuance of the registration of the registered
user, by notice in writing, require the registered proprietor to confir m to him within one month that the
agreement filed under clause ( a) of sub -section ( 1) of secti on 49 continues to be in force.
(2) If the registered proprietor fails to furnish the confirmation within one month as required under
sub-section ( 1), the registered user shall cease to be the registered user on the day immediately after the
expiry of the said period and the R egistrar shall notify the same.
52. Right of registered user to take proceedings against infringement .(1) Subject to any
agreement su bsisting between the parties, a registered user may institute proceedings for infringement in
his own name as if he were the registered proprietor, making the registered proprietor a defendant and the
rights and obligations of such registered user in such case being concurrent with thos e of the registered
proprietor.
(2) Notwithstanding anything contained in any other law, a registered proprietor so added as
defendant shall not be liable for any costs unless he enters an appearance and takes part in the
proceedings.
53. No right of permitted user to take p roceeding against infringement .A person referred to in
sub-clause ( ii) of clause ( r) of sub -section ( 1) of section 2 shall have no right to institute any pr oceeding
for any infringement.
54. Registered use r not to have right of assignment or transmission .Nothing in this Act shall
confer on a registered user of a trade mark any assignable or transmis sible right to the use thereof.
Explanation I . |
confer on a registered user of a trade mark any assignable or transmis sible right to the use thereof.
Explanation I .The right of a registered user of a trade mark shall not be deemed to have been
assigned or transmitted within the meaning of this section in the following cases, namely:
30
(a) where the registered user being an individual enters into a partnership with any other person for
carrying on the business concerned; but in any such case the firm may use the trade mark, if otherwise in
force, only for so long as the registere d user is a member of the firm;
(b) where the registered user being a firm subsequently undergoes a change in its constitution; but in
any such case the reconstituted firm may use the trade mark, if otherwise in force, only for so long as any
partner of the original firm at the time of its registration as registered user, continues to be a par tner of the
reconstituted firm.
Explanation II .For the purpose s of Explanation I , firm has the same meaning as in the Indian
Partnership Act, 1932 (9 of 1932).
55. Use of one of associated or substantially identical trade marks equivalent to use of anoth er.(1)
Where under the provisions of this Act, use of a regis tered trade mark is required to be proved for any purpose,
the 1[Registrar or the High Court, as the case may be ] may, if and, so far as it shall think right, accept use of a
registered associated trade mark, or of the trade mark with additions or alterations not substantially affecting its
identity, as an equivalent for the use required to be proved.
(2) The use of the whole of a registered trade mark shall, for the purpose of this Act, be deemed to be also
use of any trade mark being a part thereof and registered in accordance with sub -section ( 1) of section 15 in t he
name of the same proprietor.
(3) Notwithstanding anything in section 32, the use of part of the registered trade mark in sub-
section ( 2) shall not be conclusive as to its evidence of distinctiveness for any purpose under this Act.
56. Use of trade mark for export trade and use when fo rm of trade connection changes. (1) The
application in India of trade mark to goods to be exported from India or in relation to services for use outside
India and any other act done in India in relation to goods to be so exported or services so rendered ou tside
India which, if done in relation to goods to be sold or services provided or otherwise traded in within India
would constitute use of a trade mark therein, shall be deemed to constitute use of the trade mark in relation to
those goods or services for any purpose for which such use is material u nder this Act or any other law.
(2) The use of a registered trade mark in relation to goods or services between which and the person using
the mark any form of connection in the course of trade subsists shall no t be deemed to be likely to cause
deception or confusion on the ground only that the mark has been or is used in relation to goods or services
between which and the said person or a predecessor in title of that person a different form of connection in the
course of trade subsisted or subsists.
CHAPTER VII
RECTIFICATION AND CORRECTION OF THE REGISTER
57. Power to cancel or vary registrati on and to rectify the register. (1) On application made in the
prescribed manner to the 2[High Court ] or to the Registrar by any person aggrieved, the 3[Register or the High
Court, as the case may be, ] may make such order as it may think fit for cancel ling or varying the registration of
a trade mark on the ground of any contravention, or failure to observe a condition entered on th e register in
relation thereto.
(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made
in the register without sufficient cause, or by any entry wrongly remaining on the reg ister, or by any error or
defect in any entry in the register, may apply in the prescribed manner to the 2[High Court ] or to the Registrar,
and the 3[Register or the High Court, as the case may be, ] may make such order for making, expunging or
varying the entry as it may think fit.
(3) The 3[Register or the High Court, as the case may be, ] may in any proceeding under this section decide
any question that may be necessary or expedient to decide in connection with the rectification of the register.
(4) The 3[Register or the High Court, as the case may be, ] of its own motion, may, after giving notice in
the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any
order referred to in sub-section ( 1) or sub -section (2).
(5) Any order of the 2[High Court ] rectifying the register shall direct that notice of the rectification
shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice re ctify
the register accordingly.
1. Subs. by Act 33 of 2021, s. 21, for tribunal (w.e.f. 4 -4-2021).
2. Subs. by s. 21, ibid., for Appellate Board (w.e.f. 4 -4-2021).
3. Subs. by s. 21, ibid., for tribunal (w.e.f. 4 -4-2021).
31
58. Correction of register .(1) The Registrar may, on application made in the prescribed manner
by the registered proprietor,
(a) correct any error in the name, address or description of the registered proprietor of a trade
mark, or any other entry relati ng to the trade mark;
(b) enter any change in the name, address or description of the person who is registered as
proprietor of a trade mark;
(c) cancel the entry o f a trade mark on the register;
(d) strike out any goods or classes of goods or services from those in respect of wh ich a trade
mark is registered,
and may make any consequential amendment or alteration in the certificate of registration, and for that
purpose, may require the certificate of registration to be produced to hi m.
(2) The Registrar may, on application made in the prescribed manner by a registered user of a trade
mark, and after notice to the registered proprietor, correct any error, or enter any change, in the name,
address or description of the registered user.
59. Altera tion of registe red trade marks .(1) The registered proprietor of a trade mark may apply
in the prescribed manner to the Registrar for leave to add to or alter the trade mark in any manner not
substantially affecting the identity thereof, and the Registrar may refuse leav e or may grant it on such
terms and subject to such l imitations as he may think fit.
(2) The Registrar may cause an application under this section to be advertised in the prescribed
manner in any case where it appears to him that it is expedient so to do, and where he does so, if within
the prescribed time from the date of the advertisement any person gives notice to the Registrar in the
prescribed manner of opposition to the application, the Registrar shall, after hearing the parties if so
required, decide the matter.
(3) Where leave is granted under this section, the trade mark as altered shall be advertised in the
prescribed manner, unless the application has already been ad vertised under sub -section ( 2).
60. Adaptation of entries in register to amended o r substituted class ification of goods or
services .(1) The Registrar shall not make any amendment of the register which would have the effect
of adding any goods or classes of goods or services to those in respect of which a trade mark is registered
(wheth er in one or more classes) immediately before the amendment is to be made or of antedating the
registration of a trade mark in re spect of any goods or services:
Provided that this sub -section , shall not apply when the Registrar is satisfied that compliance
therewith would involve undue complexity and that the addition or antedating, as the case may be, would
not affect any substantial quantity of goods or services and would not substantially prej udice the rights of
any person.
(2) A proposal so to amend the register shall be brought to the notice of the registered proprietor of
the trade mark affected and advertised in the prescribed manner, and may be opposed before the Registrar
by any person aggrieved on the ground that the proposed amendment contravenes the provisions of
sub-section ( 1).
CHAPTER VIII
COLLECTIVE MARKS
61. Special provisions for collectiv e marks .(1) The provisions of this Act shall apply to collective
marks subject to the provis ions contained in this Chapter.
(2) In relation to a collective mark the reference in clause ( zb) of sub -section ( 1) of section 2 to
distinguish ing the goods or services of one person from those of others shall be construe d as a reference
to distinguishing the goods or services of members of an association of persons which is the proprietor of
the mark from those of others.
62. Collective mark not to be misleading as t o character or significance .A collective mark shall
not be registered if it is likely to deceive or cause confusion on the part of public in particular if it is likely
32
to be taken to be something other than a collective mark, and in such case the Registrar may require that a
mark in respect of which application is made for registration comprise some indicatio n that it is a
collective mark.
63. Application to be accompanied by regulations gov erning use of collective marks .(1) An
application for registration of a collective mark shall be accompanied by the regulations governing t he use
of such collective mark.
(2) The regulations referred to in s ub-section ( 1) shall specify the persons authorise d to use the mark,
the conditions of membership of the association and, the conditions of use of the mark, including any
sanctions against misuse and such othe r matters as may be prescribed.
64. Acceptance of applicatio n and regulations by Registrar .If it appears to the Registrar that the
requirements for registration are satisfied, he shall accept the application together with the regulations,
either unconditionally or subject to such conditions including amendments of the said regulations, if any,
as he may deem fit or refuse to accept it and if accepted shall notify the regulations.
65. Regula tions to be open to inspection .The regulations referred to in sub -section ( 1) of section
63 shall be open to public inspection in the same way as the regis ter as provided in section 148.
66. Amendment of regulations .Any amendment of regulations referred to in sub -section ( 1) of
section 63 shall not be effective unless the amended regulations are filed with the R egistrar, and accepted
and published by him in accordance with section 64.
67. Infringement proceedings by registered proprietor of collective mark .In a suit for
infringement instituted by the registered proprietor of a collective mark as plaintiff the co urt shall take
into account any loss suffered or likely to be suffered by authorise d users and may give such directions as
it thinks fit as to the extent to which the plaintiff shall hold the proceeds of any pecuniary remedy on
behalf of such authorise d users.
68. Additional grounds for removal of registration of collectiv e mark .The registration of a
collective mark may also be removed fr om the register on the ground
(a) that the manner in which the collective mark has been used by the proprietor or autho rised
user has caused it to become liable to mislead the public a s a collective mark; or
(b) that the proprietor has failed to observe, or to secure the observance of the regulations
governing the use of the mark.
Explanation I .For the purposes of this Chapter, unless the context otherwise requires, authorise d
user means a member of an association authorise d to use the registered coll ective mark of the
association.
Explanation II .For the purposes of this Act, use of a collective mark by an authorise d user referred
to in Explanation I shall be deemed to be the use by the registered proprietor thereof.
CHAPTER IX
CERTIFICATION TRADE MARKS
69. Certain provisions of this Act not applicabl e to certification trade marks .The following
provisions of this Ac t shall not apply to certification trade marks, that is to say,
(a) clauses ( a) and ( c) of sub -section ( 1) of section 9;
(b) Sections 18, 20 and 21, except as exp ressly applied by this Chapter;
(c) Sections 28, 29, 30, 41, 42, 47, 48, 49, 50, 52, 54 and sub-section ( 2) of section 56;
(d) Chapter XII, except section 107.
70. Registratio n of certification trade marks .A mark shall not be registrable as a certification
trade mark in the name of a person who carries on a trade in goods of the kind certified or a trade of the
provision of services of the kind certified.
33
71. Application s for registratio n of certification trade marks .(1) An application for the
registration of a mark as a certification trade mark shall be made to the Registrar in the prescribed manner
by the person proposed to be registered as the proprietor thereof, and accompanied by a draft for the
regulations to be deposited unde r section 74.
(2) Subject to the provisions of section 70, the provisions of sections 18, 19 and 22 shall apply in
relation to an application under this section as they apply in relation to an application under section 18,
subject to the modification that references therein to acceptance of an application shall be con strued as
references to authoris ation to proceed wit h an application.
(3) In dealing under the said provisions with an application under this section, the 1[Registrar or the
High Court, as the case may be,] shall have regard to the like considerations, so far as relevant, as if the
application were applicat ions under section 18 and to any other considerations relevant to applications
under this section, including the desirability of securing that a certification trade mark shall comprise
some indication that it is a certification trade mark.
72. Consideratio n of application for registration by Registrar .(1) The Registrar shall consider
the application made under section 71 with regard to t he following matters, namely:
(a) whether the applicant is competent to certify the goods in respect of whic h the mark is to be
registered;
(b) whether the draft of the regulations to be filed un der section 74 is satisfactory;
(c) whether in all the circumstances the registration applied for would be to the public advantage,
and may either
(i) refuse the application; or
(ii) accept the application and approve the said draft of the regulations either without modification
and unconditionally or subject to any conditions or limitations, or to any amendments or
modifications of the application or of the regulations, which he t hinks requisite having reg ard to any
of the said matters.
(2) Except in the case of acceptance and approval without modification and unconditionally, the
Registrar shall not decide any matter under sub - |
Except in the case of acceptance and approval without modification and unconditionally, the
Registrar shall not decide any matter under sub -section ( 1) without giving the applicant an opportunit y of
being heard.
73. Opposition to registratio n of certification trade marks .When an application has been
accepted, the Registrar shall, as soon as may be thereafter, cause the application as accepted to be
advertised in the prescribed manner, and the provisions of section 21 shall apply in relation to the
registration of the mark as they apply in relation to a n application under section 18.
74. Filing of regulations governing use of a certification trade mark .(1) There shall be filed at
the Trade Mark s Registry in respect of every mark registered as a certification trade mark regulations for
governing the use thereof, which shall include provisions as to the cases in which the proprietor is to
certify goods or services and to authorise the use of the c ertification trade mark, and may contain any
other provisions which the Registrar may by general or special order, require or permit to be inserted
therein (including provisions conferring a right of appeal to the Registrar against any refusal of the
propr ietor to certify goods or to authorise the use of the certification trade mark in accordance with the
regulations); and regulations so filed shall be open to inspection in like manner as the regis ter as provided
in section 148.
(2) The regulations so filed may, on the application of the registered proprieto r, be altered by the
Registrar.
(3) The Registrar may cause such application to be advertised in any case where it appears to him
expedient so to do, and where he does so, if within the time specified in the advertisement any person
gives notice of opposition to the application, the Registrar shall not decide the matter without giving the
parties an opportunity of being heard.
1. Subs. by Act 33 of 2021, s. 21, for tribunal (w.e.f. 4 -4-2021).
34
75. Infringement of certification trade mark s.The right conferred by section 78 is infringed by
any person who, not being the registered proprietor of the certification trade mark or a person authorise d
by him in that behalf under the regulations filed under section 74, using i t in accordance therewith, uses in
the course of trade, a mark, which is identical with, or deceptively similar to the certification trade mark
in relation to any goods or services in respect of which it is registered, and in such manner as to render the
use of the mark likely to be taken as being a use as a tra de mark.
76. Acts not constituting infringemen t of certification trade marks .(1) Notwithstanding
anything contained in this Act, the following acts do not constitute an infringement of the right to the use
of a regist ered certification trade mark
(a) where a certification trade mark is registered subject to any conditions or limitations entered
on the register, the use of any such mark in any mode, in relation to goods to be sold or otherwise
traded in any place, or in relation to goods to be exporte d to any market or in relation to services for
use or available for acceptance in any place, country or territory or in any other circumstances, to
which having regard to any such limitations, the registration does not extend;
(b) the use of a certificatio n trade mark in relation to goods or services certified by the proprietor
of the mark if, as to those goods or services or a bulk of which they form part, the proprietor or
another in accordance with his authoris ation under the relevant regulations has app lied the mark and
has not subsequently removed or obliterated it, or the proprietor has at any time expressly or
impliedly co nsented to the use of the mark;
(c) the use of a certification trade mark in relation to goods or services adapted to form part of, or
to be accessory to, other goods in relation to which the mark has been used without infringement of
the right given as aforesaid or might for the time being be so used, if the use of the mark is reasonably
necessary in order to indicate that the goods or services are so adapted and neither the purpose nor the
effect of the use of the mark is to indicate otherwise than in accordance with the fact that the goods or
services a re certified by the proprietor.
(2) Clause ( b) of sub -section ( 1) shall not apply to the case of use consisting of the application of a
certification trade mark to goods or services, notwithstanding that they are such goods or services as are
mentioned in that clause if such application is contrary to the regulati ons referred to in tha t clause.
(3) Where a certification trade mark is one of two or more trade marks registered under this Act,
which are identical or nearly resemble each other, the use of any of those trade marks in exercise of the
right to the use of that trade mark given by registration, shall not be deemed to be an infringement of the
right so given to the use of any other of those trade marks.
77. Cancellation or varying of registratio n of certification trade marks .The Registrar may, on
the application in the prescribed manner of any person aggrieved and after giving the proprietor an
opportunity o f opposing the application, make such order as he thinks fit for expunging or varying any
entry in the register to a certification trade mark, or for varying the regulations, on any of t he following
grounds, namely:
(a) that the proprietor is no longer co mpetent, in the case of any of the goods or services in
respect of which the mark is registered, to certify those goods or s ervices;
(b) that the proprietor has failed to observe any provisions of the regulati ons to be observed on his
part;
(c) that it is no longer to the public advantage that the mark should remain registered;
(d) that it is requisite for the public advantage that if the mark remains registered, th e regulations
should be varied.
78. Rights conferred by registratio n of certification trade m arks.(1) Subject to the provisions
of sections 34, 35 and 76, the registration of a person as a proprietor of certification trade mark in r espect
of any goods or services shall, if valid, give to that person the exclusive right to the use of the mark in
relation to those goods or services.
(2) The exclusive right to the use of a certification trade mark given under sub -section ( 1) shall be
subject to any conditions and limitations to whi ch the registration is subject.
35
[CHAPTER X .SPECIAL PROVISIONS FOR TEXTILE GOODS .] Omitted by the Trade Marks
(Amendment ) Act, 2010 (40 of 2010), s. 7 (w.e.f. 8-7-2013).
79. [Textile goods .] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
80. [Restriction on registration of textile goods .] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
81. [Stamping of piece goods, cotton yarn and thread. ] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
82. [Determination of character of textile goods by sampling .] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
CHAPTER XI
1[APPEALS ]
83. [Establishment of Appellate Board .]Omitted by The Tribunal Reforms Act , 2021 (33 of 2021),
s. 21 (w.e.f. 4-4-2021).
84. [Composition of Appellate Board .]Omitted by s. 21, ibid. (w.e.f . 4-4-2021).
85. [Qualifications for appointment as 3[Chair person ], 4[Vice-Chair person ], or other Members .]
Omitted by s. 21, ibid. (w.e.f. 4-4-2021).
86. [Term of office of 1[Chair person ], 2[Vice-Chair person ] and other Members .]Omitted by s. 21,
ibid. (w.e.f . 4-4-2021).
87. [Vice-Chair person ] or senior -most Member to act as [Chair person ] or discharge his func tions in
certain circumstances .] Omitted by s. 21, ibid. (w.e.f. 4-4-2021).
88. [Salaries, allowances and other terms and conditions of service of Chairperson , Vice-
[Chairperson ] and other Members .]Omitted by s. 21, ibid. (w.e.f . 4-4-2021).
89. [Resignation and removal .]Omitted by s. 21, ibid. (w.e.f . 4-4-2021).
2[89A. [Qualifications, terms and conditions of service of Chairperson, Vice -Chairperson and
member .]Omitted by s. 21, ibid. (w.e.f . 4-4-2021).
90. [Staff of Appellate Board .]Omitted by s. 21, ibid. (w.e.f . 4-4-2021).
91. Appeals to 3[High Court ].(1) Any person aggrieved by an order or decision of the Registrar
under this Act, or the rules made thereunder may prefer an appeal to the 3[High Court ] within three
months from the date on which the order or decision sought to be appealed against is communicated to
such person preferring the appeal.
(2) No appeal shall be admitted if it is preferred after the expiry of the period specified under
sub-section ( 1):
Provided that an appeal may be admitted after the expiry of the period specified therefor, if the
appellant satisfies the 3[High Court ] that he had sufficient cause for not preferring the appeal within the
specified period.
(3) An appea l to the 3[High Court ] shall be in the prescribed form and shall be verified in the
prescribed manner and shall be accompanied by a copy of the order or decision appealed against and by
such fees as may be prescribed.
92. [Procedure and powers of Appellate Board .]Omitted by The Tribunal Reforms Act , 2021 (33 of
2021), s. 21 (w.e.f. 4-4-2021).
93. [Bar of jurisdiction of courts, etc .]Omitted by s. 21, ibid. (w.e.f. 4-4-2021).
4[94. Bar to appear before Registrar .On ceasing to hold the office, the erstwhile Chairperson,
Vice -Chairperson or other Members shall not appear before the Registrar.]
95. [Conditions as to making of interim orders .]Omitted by The Tribunal Reforms Act , 2021 (33 of
2021), s. 21 (w.e.f. 4-4-2021).
96. [Power of 1[Chair person ] to transfer cases from one Bench to another .]Omitted by s. 21, ibid.
(w.e.f. 4-4-2021).
1. Subs. by Act 33 of 2021, s. 21, for APPELLATE BOARD (w.e.f. 4 -4-2021).
2. Ins. by s. 161, ibid. (w.e.f. 26 -5-2017).
3. Subs. by Act 33 of 2021, s. 21, for Appellate Board (w.e.f. 4 -4-2021).
4. Subs. by s. 21, ibid, for section 94 (w.e.f. 4 -4-2021).
36
97. Procedure for application for rectification, etc. , before 1[High Court ].(1) An application for
rectification of the register made to the 1[High Court ] under section 57 shall be in such form as may be
prescribed.
(2) A certified copy of every order or judgment of the 1[High Court ] relating to a registered trade
mark under this Act shall be communicated to the Registrar by the Board and the Registrar shall give
effect to the order of the Board and shall, when so directed, amend the entries in, or rectify, the register in
accordance with such order.
98. Appearance of Registrar in legal proceedings .(1) The Registrar shall have the right to appear
and be heard
(a) in any legal proceedings before the 1[High Court ] in which the relief sought includes
alteration or rectification of the register or in which any question relating to the practice of the Trade
Marks Registry is raised;
(b) in any appeal to the 2[High Court ] from an order of the Registrar on an applicati on for
registration of a trade mark
(i) which is not opposed, and the application is either refused by the Registrar or is accepted
by him subject to any amendments, modifications, conditions or limitations, or
(ii) which has been opposed and the Registrar considers that his appearance is necessary in
the public interest,
and the Registrar shall appear in any case if so directed by the Board.
(2) Unless the 1[High Court ] otherwise directs, the Registrar may, in li eu of appearing, submit a
statement in writing signed by him, giving such particulars as he thinks proper of the proceedings before
him relating to the matter in issue or of the grounds of any decision given by him affecting it, or of the
practice of the T rade Marks Registry in like cases, or of other matters relevant to the issues and within his
knowledge as Registrar, and such statement shall be evidence in the proceeding.
99. [Costs of Registrar in proceedings before Appellate Board .]Omitted by The Tribunals Reforms
Act, 2021 (33 of 2021), s. 21 ( w.e.f. 4-4-2021) .
100. [Transfer of pending proceedings to Appellate Board .]Omitted by s. 21 , ibid.
(w.e.f. 4-4-2021).
CHAPTER XII
OFFENCES, PENALTIES AND PROCEDURE
101. Meaning of applying trade marks and trade descriptions .(1) A person shall be deemed to
apply a trade mark or mark or trade description to goods or services who
(a) applies it to the goods themselves or uses it in relation to services; or
(b) applies it to any package in or with which the goods are sold, or exposed for sale, or had in
possession for sale or for any purpose of trade or manufacture; or
(c) places, encloses or annexes any goods which are sold, or exposed for sale , or had in
pos |
or
(c) places, encloses or annexes any goods which are sold, or exposed for sale , or had in
possession for sale or for any purpose of trade or manufacture, in or with any package or other thing
to which a trade mark or mark or trade description has been applied; or
(d) uses a trade mark or mark or trade description in any manner reasonably likely to lead to the
belief that the goods or servi ces in connection with which it is used are designated or described by
that trade mark or mark or trade description; or
(e) in relation to the goods or services uses a trade mark or trade description in any sign,
advertisement, invoice, catalogue, busines s letter, business paper, price list or other commercial
document and goods are delivered or services are rendered to a person in pursuance of a request or
order made by reference to the trade mark or trade description as so used.
1. Subs. by Act 33 of 2021, s. 21, for Appellate Board (w.e.f. 4 -4-2021).
2. Subs. by s. 21, ibid., for Board (w.e.f. 4 -4-2021).
37
(2) A trade mark or mark or trade description shall be deemed to be applied to goods whether it is
woven in, impressed on, or otherwise worked into, or annexed or affixed to, the goods or to any package
or other thing.
102. Falsifying and falsely applying trade marks .(1) A pers on shall be deemed to falsify a trade
mark who, either ,
(a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively
similar mark; or
(b) falsifies any genuine trade mark, whether by alteration, addition, effacement o r otherwise.
(2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the
assent of the proprietor of the trade mark ,
(a) applies such trade mark or a deceptively similar mark to goods or services or any package
containing goods;
(b) uses any package bearing a mark which is identical with or deceptively similar to the trade
mark of such proprietor, for the purpose of packi ng, filling or wrapping therein any goods other than
the genuine goods of the proprietor of the trade mark.
(3) Any trade mark falsified as mentioned in sub -section ( 1) or falsely applied as mentioned in
sub-section ( 2), is in this Act referred to as a false trade mark.
(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods or
services, the burden of proving the assent of the proprietor shall lie on the accused.
103. Penalty for applying false trade marks, trade descriptions, etc .Any person who
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument
for the purpose of fals ifying or of being used f or falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which they were made
or produced or the name and address o f the manufacturer or person for whom the goods are
manufactured is required to be applied under section 139, a false indication of such country, place,
name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to
which it is required to be applied under section 139; or
(g) causes any of the things above mentioned in this section to be done,
shall, unless he proves tha t he acted, without intent to defraud, be punishable with imprisonment for a
term which shall not be less than six months but which may extend to three years and with fine which
shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reas ons to be mentioned in the judg ment,
impose a sentence of imprisonment for a term of less than six months or a fine of le ss than fifty thousand
rupees.
104. Penalty for selling goods or providing services to which false trade mark or false trade
description is applied .Any person who sells, lets for hire or exposes for sale, or hires or has in his
possession for sale, goods or things, or provides or hires services, to which any false trad e mark or false
trade description is applied or which, being required under section 139 to have applied to them an
indication of the country or place in which they were made or produced or the name and address of the
manufacturer, or person for whom the go ods are manufactured or services provided, as the case may be,
are without the indications so required, shall, unless he proves ,
(a) that, having taken all reasonable precautions against committing an offence against this
section, he had at the time of co mmission of the alleged offence no reason to suspect the genuineness
38
of the trade mark or trade description or that any offence had been committed in respect of the goods
or services; or
(b) that, on demand by or on behalf of the prosecutor, he gave all t he information in his power
with respect to the person from whom he obtained such goods or things or services; or
(c) that otherwise he had acted innocently,
be punishable with imprisonment for a term which shall not be less than six months but which may
extend to three years and with fine which shall not be less than fifty thousand rupees but which may
extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in th e judg ment,
impose a sentence of imprisonme nt for a term of less than six months or a fine of less than fifty thousand
rupees.
105. Enhanced penalty on second or subsequent conviction .Whoever having already been convicted
of an offence under section 103 or section 104 is again convicted of any su ch offence shall be punishable
for the second and for every subsequent offence, with imprisonment for a term which shall not be less
than one year but which may extend to three years and with fine which shall not be less than one lakh
rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reason to be mentioned in the judgement,
impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees:
Provided further that for the purposes of this section, no cognizance shall be taken of any conviction
made b efore the commencement of this Act.
106. Penalty for removing piece goods, etc., contrary to section 81 .If any person removes or
attempts to remove or causes or attempts to cause to be removed for sale from any premises referred to in
section 81 or sells or exposes for sale or has in his possession for sale or for any purpose of trade or
manufacture piece go ods or cotton yarn or cotton thread which is not marked as required by that section,
every such piece and every such bundle of yarn and all such thread and everything used for the packing
thereof shall be forfeited to Government and such person shall be pu nishable with fine which may extend
to one thousand rupees.
107. Penalty for falsely representing a trade mark as registered .(1) No person shall make any
representation
(a) with respect to a mark, not being a registered trade mark, to the effect that it is a registered
trade mark; or
(b) with respect to a part of a registered trade mark, not being a part separately registered as a
trade mark, to the effect that it is separately registered as a trade mark; or
(c) to the effect that a registered trade ma rk is registered in respect of any goods or services in
respect of which it is not in fact registered; or
(d) to the effect that registration of a trade mark gives an exclusive right to the use thereof in any
circumstances in which, having regard to limit ation entered on the register, the registration does not in
fact give that right.
(2) If any person contravenes any of the provisions of sub -section ( 1), he shall be punishable with
imprisonment for a term which may extend to three years, or with fine, or with both.
(3) For the purposes of this section, the use in India in relation to a trade mark of the word
registered , or of any other expression, symbol or sign referring whether expressly or impliedly to
registration, shall be deemed to import a refer ence to regist ration in the register, except
(a) where that word or other expression, symbol or sign is used in direct association with other
words delineated in characters at least as large as those in which that word or other expression,
symbol or sign is delineated and indicating that the reference is to registration as a trade mark under
the law of a country outside India being a country under the law of which the registration r eferred to
is in fact in force; or
39
(b) where that other expression, symbol or sign is of itself such as to indicate that the reference is
to such registration as is mentioned in clause ( a); or
(c) where that word is used in relation to a mark registered as a trade mark under the law of a
country outside India and in relat ion solely to goods to be exported to that country or in relation to
services for use in that country.
108. Penalty for improperly describing a place of business as connected with the Trade Marks
Office .If any person uses on his place of business, or on any document issued by him, or otherwise,
words which would reasonably lead to the belief that his place of business is, or is officially connected
with, the Trade Marks Office, he shall be punishable with imprisonment for a term which may extend to
two ye ars, or with fine, or with both.
109. Penalty for falsification of entries in the register .If any person makes, or causes to be
made, a false entry in the register, or a writing falsely purporting to be a copy of an entry in the register,
or produces or tenders or causes to be produced or tendered, in evidence any such writing, knowing the
entry or writing to be false, he shall be punishable with imprisonment for a term which may extend to two
years, or with fine, or with both.
110. No offence in certain cases .The provisions of sections 102, 103, 104 and 105 shall, in
relation to a registered trade mark or proprietor of such mark, be subject to the rights created or
recognise d by this Act and no act or omission shall be deemed to be an offence under the aforesaid
sections if ,
(a) the alleged offence relates to a registered trade mark and the act or omiss ion is permitted
under this Act; and
(b) the alleged offence relates to a registered or an unregistered trade mark and the act or
omission is permitted under any other law for the time being in force.
111. Forfeiture of goods .(1) Where a person is convicted of an offence under section 103 or
section 104 or section 105 or is acquitted of an offence under section 103 or section 104 on proof that he
acted without intent to defraud, or under section 104 on proof of the matters specified in clause ( a),
clause ( b) or clause ( c) of that section, the court convicting or acquitting him may direct the forfeiture to
Government of all goods and things by means of, or in relation to, which the offence has been committed,
or but for such proof as aforesaid would have been committed.
(2) When a forfeiture i s directed on a conviction and an appeal lies against the conviction, an appeal
shall lie against the forfeiture also.
(3) When a forfeiture is directed on acquittal and the goods or things to which the direction relates are
of value exceeding fifty rupee s, an appeal against the forfeiture may be preferred, within thirty days from
the date of the direction, to the court to which in appealable cases appeals lie from sentences of the court
which directed the forfeiture.
(4) When a forfeiture is directed on a conviction, the court, before whom the person is convicted, may
order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit.
112. Exemption of certain persons employed in ordinary course of business .Where a person
accused of an offence under section 103 proves
(a) that in the ordinary course of his business he is employed on behalf of other persons to apply
trade marks or trade descriptions, or as the case may be, to make dies, blocks, machines, plates, or
other instr uments for making, or being used in making, trade marks; and
(b) that in the case which is the subject of the charge he was so employed, and was not interested
in the goods or other thing by way of profit or commission dependent on the sale of such goods or
providing of services, as the case may be; and
(c) that, having taken all reasonable precautions against committing the offence charged, he had,
at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade
mark or trade description; and
(d) that, on demand made by or on behalf of the prosecutor, he gave all the information in his
power with respect to the persons on whose behalf the trade mark or trade description was applied,
40
he shall be acquitted.
113. Pro cedure where invalidity of registration is pleaded by the accused .(1) Where the
offence charged under section 103 or section 104 or section 105 is in relation to a registered trade mark
and the accused pleads that the registration of the trade mark is invalid, the following procedure shall be
followed:
(a) If the court is satisfied that such defence is prima facie tenable, it shall not proceed with the
charge but shall adjourn the proceeding for three months from the date on which the plea of the
accus ed is recorded to enable the accused to file an application before the 1[High Court ] under this
Act, for the rectification of the register on the ground that the registration is invalid.
(b) If the accused proves to the court that he has made such application within the time so limited
or within such further time as the court may for sufficient cause allow, the further proceedings in the
prosecution shall stand stayed till the disposal of su ch application for rectification.
(c) If within a period of three months or within such extended time as may be allowed by the
court the accused fails to apply to the 1[High Court ] for rectification of the register, the court shall
proceed with the case a s if the registration were valid.
(2) Where before the institution of a complaint of an offence referred to in sub -section ( 1), any
application for the rectification of the register concerning the trade mark in question on the ground of
invalidity of the registration thereof has already been properly made to and is pending before the
2[Registrar or the High Court, as the case ma y be, ], the court shall stay the further proceedings in the
prosecution pending the disposal of the application aforesaid and shall determine the charge against the
accused in conformity with the result of the application for rectification in so far as the complainant relies
upon the registration of his mark.
114. Offences by companies .(1) If the person committing an offence under this Act |
on the registration of his mark.
114. Offences by companies .(1) If the person committing an offence under this Act is a company,
the company as well as every person in charge of, and responsible to, the company for the conduct of it s
business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall
be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub -section shall render any such person liab le to any
punishment if he proves that the offence was committed without his knowledge or that he exercised all
due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub -section ( 1), where an offence under this Act has been
committed by a company and it is proved that the offence has been committed with the consent or
connivance of, or that the commission of the offence is attributable to any neglect on the part of, any
director, manager, secretary or other offi cer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation .For the purposes of this section
(a) company mea ns any body corporate and includes a firm or other association of individuals;
and
(b) director, in relation to a firm, means a partner in the firm.
115. Cognizance of certain offences and the powers of police officer for search and seizure .(1)
No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on
complaint in writing made by the Registrar or any officer authorise d by him in writing:
Provided that in relation to clause ( c) of sub -section ( 1) of section 107, a court shall take cognizance
of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark
has been represented as registered in respect of any goods or services in respect of which it is not i n fact
registered.
1. Subs. by Act 33 of 2021, s. 21, for Appellate Board (w.e.f. 4 -4-2021).
2. Subs. by s. 21, ibid., for tribunal (w.e.f. 4 -4-2021).
41
(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall
try an offence under this Act.
(3) The offences under section 103 or section 104 or section 105 shall be cognizable.
(4) Any po lice officer not below the rank of deputy superintendent of police or equivalent, may, if he
is satisfied that any of the offences referred to in sub -section ( 3) has been, is being, or is likely to be,
committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or
things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as
practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrat e, as the
case may be:
Provided that the police officer, before making any search and seizure, shall obtain the opinion of the
Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so
obtained.
(5) Any person ha ving an interest in any article seized under sub -section ( 4), may, within fifteen days
of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan
Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the
applicant and the prosecution, shall make such order on the application as he may deem fit.
116. Evidence of origin of goods imported by sea .In the case of goods brought into India by sea,
evidence of the port of sh ipment shall, in a prosecution for an offence under this Act or under clause ( b)
of section 112 of the Customs Act, 1962 (52 of 1962) relating to confiscation of goods under clause ( d) of
section 111 and notified by the Central Government under clause ( n) of sub -section ( 2) of section 11 of
the said Act for the protection of trade marks relating to import of goods, be prima facie evidence of the
place or country in which the goods were made or produced.
117. Costs of defence or prosecution .In any prosecution under this Act, the court may order such
costs to be paid by the accused to the complainant, or by the complainant to the accused, as the court
deems reasonable having regard to all the circumstances of the case and the conduct of the pa rties and the
costs so awarded shall be recoverable as if they were a fine.
118. Limitation of prosecution .No prosecution for an offence under this Act or under clause ( b)
of section 112 of the Customs Act,1962 (52 of 1962) , relating to confiscation of g oods under clause ( d) of
section 111 and notified by the Central Government under clause ( n) of sub -section ( 2) of section 11 of
the said Act for the protection of trade marks, relating to import of goods shall be commenced after
expiration of three years next after the commission of the offence charged, or two years after the
discovery thereof by the prosecu tor, whichever expiration first -happens.
119. Information as to commission of offence .An officer of the Government whose duty it is to
take part in t he enforcement of the provisions of this Chapter shall not be compelled in any court to say
whence he got any information as to the commission of any offence against this Act.
120. Punishment of abetment in India of acts done out of India .If any person, being within
India, abets the commission, without India, of any act which, if committed in India, would, under this
Act, be an offence, he may be tried for such abetment in any place in India in which he may be found, and
be punished therefor with the puni shment to which he would be liable if he had himself committed in that
place the act which he abetted.
121. Instructions of Central Government as to permissible variation to be observed by criminal
courts .The Central Government may, by notification in th e Official Gazette, issue instructions for the
limits of variation, as regards number, quantity, measure, gauge or weight which are to be recognise d by
criminal courts as permissible in the case of any goods.
CHAPTER XIII
MISCELLANEOUS
122. Protection of action taken in good faith .No suit or other legal proceedings shall lie against
any person in respect of anything which is in good faith done or intended to be done in pursuance of this
Act.
42
123. Certain persons to be public servants .Every person appoin ted under this Act 1*** shall be
deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) .
124. Stay of proceedings where the validity of registration of the trade mark is questioned,
etc.(1) Where in any suit for infringement of a trade mark
(a) the defendant pleads that registration of the plaintiffs trade mark is invalid; or
(b) the defendant raises a defence under clause ( e) of sub -section ( 2) of section 30 and the
plaintiff pleads the invalidity of regi stration of the defendants trade mark,
the court trying the suit (hereinafter referred to as the court), shall ,
(i) if any proceedings for rectification of the register in relation to the plaintiffs or defendants
trade mark are pending before the Reg istrar or the 2[High Court ], stay the suit pending the final
disposal of such proceedings;
(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the
invalidity of the registration of the plaintiffs or defendants trade mark is prima facie tenable, raise
an issue regarding the same and adjourn the case for a per iod of three months from the date of the
framing of the issue in order to enable the party concerned to apply to the 2[High Court ] for
rectification of the register.
(2) If the party concerned proves to the court that he has made any such application as i s referred to in
clause ( b) (ii) of sub -section ( 1) within the time specified therein or within such extended time as the
court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the
rectification proceedin gs.
(3) If no such application as aforesaid has been made within the time so specified or within such
extended time as the court may allow, the issue as to the validity of the registration of the trade mark
concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to
the other issues in the case.
(4) The final order made in any rectification proceedings referred to in sub -section ( 1) or
sub-section ( 2) shall be binding upon the parties and the court shall dispose of the suit conformably to
such order in so far as it relates to the issue as to the validity of the registration of the trade mark.
(5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the
court from making any interlocutory order (including any order granting an injunction, directing account
to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit.
125. Application for rectification of register to be made to 2[High Court ] in certain cases .(1)
Where in a suit for infringement of a registered trade mark the validity of the registration of the plaintiffs
trade mark is questioned by the defendant or where in any such suit the defendant raises a defence under
clause ( e) of sub -section ( 2) of section 30 and the plaintiff questions the validity of the registration of the
defendants trade mark, the issue as to the validity of the registration of the trade mark concerned shall be
determined only on a n application for the rectification of the register and, notwithstanding anything
contained in section 47 or section 57, such application shall be made to the 2[High Court ] and not the
Registrar.
(2) Subject to the provisions of sub -section ( 1), where an application for rectification of the register is
made to the Registrar under section 47 or section 57, the Registrar may, if he thinks fit, refer the
application at any stage of the proceedings to the 2[High Court ].
126. Implied warranty on sa le of marked goods .Where a mark or a trade mark or trade
description has been applied to the goods on sale or in the contract for sale of any goods or in relation to
any service, the seller shall be deemed to warrant that the mark is a genuine mark and no t falsely applied,
or that the trade description is not a false trade description within the meaning of this Act unless the
contrary is expressed in writing signed by or on behalf of the seller and delivered at the time of the sale of
goods or providing of services on contract to and accepted by the buyer.
1. The words and every Member of the Appellate Board omitted by Act 33 of 2021, s. 21 (w.e.f. 4 -4-2021).
2. Subs. by Act 33 of 2021, s. 21, for Appellate Board (w.e.f. 4 -4-2021).
43
127. Powers of Registrar .In all proceedings under this Act before the Registrar ,
(a) the Registrar shall have all the powers of a civil court for the purposes of receiving evidence,
administering oaths , enforcing the attendance of witnesses, compelling the discovery and production
of documents and issuing commissions for the examination of wi tnesses;
(b) the Registrar may, subject to any rules made in this behalf under section 157, make such
orders as to costs as he considers reasonable, and any such order shall be executable as a decree of a
civil court:
Provided that the Registrar shall have no power to award costs to or against any party on an
appeal to him against a refusal of the proprietor of a certification trade mark to certify goods or
provision of services or to authorise the use of the mark;
(c) the Registrar may, on an application made in th e prescribed manner, review his own decision.
128. Exercise of discretionary power by Registrar .Subject to the provisions of section 131, the
Registrar shall not exercise any discretionary or other power vested to him by this Act or the rules made
thereu nder adversely to a person applying for the exercise of that power without (if so required by that
person within the prescribed time) giving to the person an opportunity of being heard.
129. Evidence before Registrar .In any proceeding under this Act befo re the Registrar, evidence
shall be given by affidavit:
Provided that the Registrar may, if he thinks fit, take oral evidence in lieu of, or in addition to, such
evidence by affidavit.
130. Death of party to a proceeding .If a person who is a party to a proceeding under this Act (not
being a proceeding before 1*** a court) dies pending the proceeding, the Registrar may, on request, and
on proof to his satisfaction of the transmission of the interest of the deceased person, substitute in the
proceeding his successor in interest in h is place, or, if the Registrar is of opinion that the interest of the
deceased person is sufficiently represented by the surviving parties, permit the proceeding to continue
without the substitution of his successor in interest.
131. Extension of time .(1) If the Registrar is satisfied, o n application made to him in the
prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the
time for doing any act (not being a time expressly provided in this Act), whether the time so specified has
expired o r not, he may, subject to such conditions as he may think fit to impose, extend the time and
inform the parties accordingly.
(2) Nothing in sub -section ( 1) shall be deemed to require the Registrar to hear the parties before
disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar
under this section.
132. Abandonment .Where, in the opinion of the Registrar, an applicant is in default in the
prosecution of an application filed under this Act or any Act relat ing to trade marks in force prior to the
commencement of this Ac t, the Registrar may, by notice require the applicant to remedy the default
within a time specified and after giving him, if so , desired, an opportunity of being heard, treat the
application a s abandoned, unless the default is remedied within the time specified in the notice.
133. Preliminary advice by the Registrar as to distinctiveness .(1) The Registrar may, on
application made to him in the prescribed manner by any person who proposes to a pply for the
registration |
istrar may, on
application made to him in the prescribed manner by any person who proposes to a pply for the
registration of a trade mark, give advice as to whether the trade mark appears to him prima facie to be
distinctive.
(2) If, on an application for the registration of a trade mark as to which the Registrar has given advice
as aforesaid in the affirmative made within three months after the advice was given, the Registrar, after
further investigation or consideration, gives notice , to the applicant of objection on the ground that the
trade mark is not distinctive, the applicant shall be entitled, on giving notice of withdrawal of the
application within the prescribed period, to have repaid to him any fee paid on the filing of the
application.
1. The words the Appellate Board or omitted by Act 33 of 2021, s. 21 (w.e.f. 4 -4-2021).
44
134. Suit for infringement, etc. , to be instituted before District Court .(1) No suit
(a) for the infringement of a registered trade mark; or
(b) relating to any right in a registered trade mark; or
(c) for passing off arising out of the use by the defendant of any trade mark which is identical
with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered,
shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.
(2) For the purpose of clauses ( a) and ( b) of sub -section ( 1), a District Court having jurisdiction
shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other
law for the time being in force, include a District Co urt within the local limits of whose jurisdiction, at the
time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or,
where there are more than one such persons any of them, actually and voluntarily resides o r carries on
business or personally works for gain.
Explanation .For the purposes of sub -section ( 2), person includes the registered proprietor and
the registered user.
135. Relief in suits for infringement or for passing off .(1) The relief which a court may grant in
any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such
terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of
profits, together wi th or wit hout any order for the delivery -up of the infringing labels and marks for
destruction or erasure.
(2) The order of injunction under sub -section ( 1) may include an ex parte injunction or any
interlocutory order for any of the following matters, na mely :
(a) for discovery of documents;
(b) preserving of infringing goods, documents or other evidence which are related to the
subject -matter of the suit;
(c) restraining the defendant from disposing of or dealing with his assets in a manner which may
adversely affect plaintiffs ability to recover damages, costs or other pecuniary remedies which may
be finally awarded to the plaintiff.
(3) Notwithstanding anything contained in sub -section ( 1), the court shall not grant relief by way of
dama ges (other than nominal damages) or on account of profits in any case
(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation
to a certification tr ade mark or collective mark; or
(b) where in a suit for infringement the defendant satisfies the court
(i) that at the time he commenced to use the trade mark complained of in the suit , he was
unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on
the register or that th e plaintiff was a registered user usi ng by way of permitted use; and
(ii) that when he became aware of the existence and nature of the plaintiffs right in the trade
mark, he forthwith ceased to use the trade mark in relation to goods or services in respec t of
which it was registered; or
(c) where in a suit for passing off, the defendant satisfies the court
(i) that at the time he commenced to use the trade mark complained of in the suit , he was
unaware and had no reasonable ground for believing that the t rade mark fo r the plaintiff was in
use; and
(ii) that when he became aware of the existence and nature of the plaintiffs trade mark he
forthwith ceased to use the trade mark complained of.
136. Registered user to be impleaded in certain proceedings .(1) In every proceeding under
chapter VII or under section 91, every registered user of a trade mark using by way of permitted use, who
45
is not himself an applicant in respec t of any proceeding under that C hapter or section, shall be made a
party to the proce eding.
(2) Notwithstanding anything contained in any other law, a registered user so made a party to the
proceeding shall not be liable for any costs unless he enters an appearance and t akes part in the
proceeding.
137. Evidence of entries in register, etc ., and things done by the Registrar .(1) A copy of any
entry in the register or of any document referred to in sub -section ( 1) of section 148 purporting to be
certified by the Registrar and sealed with the seal of the Trade Marks Registry shall be admitted in
evidence in all courts and in all proceedings without further proof or production of the original.
(2) A certificate purporting to be under the hand of the Registrar as to any entry, matter or thing that
he is authorise d by this Act or the rules to make or do shall be prima facie evidence of the entry having
been made, and of the contents thereof, or of the matter or thing s having been done or not done.
138. Registrar and other officers not compellable to produce register, etc .The Registrar or any
officer of the Trade Marks Registry shall not, in any legal proceedings to which he is not a party, be
compellable to produce the register or any other document in his custody, the contents of which can be
proved by the production of a certified copy issued under this Act or to appear as a witness to prove the
matters therein recorded unless by order of th e court made for special cause.
139. Power to require goods to show indication of origin .(1) The Central Government m ay, by
notification in the Official Gazette, require that goods of any class specified in the notification which are
made or prod uced beyond the limits of India and imported into India, or , which are made or produced
within the limits of India, shall, from such date as may be appointed by the notification not being less than
three months from its issue, have applied to them an indication of the country or place in which they were
made or produced, or of the name and address of the manufacturer or the person for wh om the goods were
manufactured.
(2) The notification may specify the manner in which s uch indication shall be applied that is to say,
whether to goods themselves or in any other manner, and the times or occasions on which the presence of
the indicat ion shall be necessary, that is to say, whether on importation only, or also at the time of sale,
whether by wholesale or retail or both.
(3) No notification under this section shall be issued, unless application is made for its issue by
persons or associa tions substantially representing the interests of dealers in, or manufacturers, producers,
or users of, the goods concerned, or unless the Central Government is otherwise convinced that it is
necessary in the public interest to issue the notification, with or without such inquiry, as the Central
Government may consider necessary.
(4) The provisions of section 23 of the General Clauses Act, 1897 (10 of 1897) shall apply to the
issue of a notification under this section as they apply to the making of a rule or bye -law the making of
which is subject to the con dition of previous publication.
(5) A notification under this section shall not apply to goods made or produced beyond the limits of
India and imported into India, if in respect of those goods, the Commis sioner of Customs is satisfied at
the time of importation that they are intended for exportation whether after transshipment in or tran sit
through India or otherwise.
140. Power to require information of imported goods bearing false trade marks .(1) The
proprietor or a licensee of a registered trade mark may give notice in writing to the Collector of Customs
to prohibit the importation of any goods if the import of the said goods constitute infringement under
clause ( c) of sub -section ( 6) of section 29.
(2) Where goods, which are prohibited to be imported into India by notification of the Central
Government under clause ( n) of sub -section ( 2) of section 11 of the Customs Act, 1962 (52 of 1962) , for
the protection of trade marks, and are liable to confiscatio n on importation under that Act, are imported
into India, the Commissioner of Customs if, upon representation made to him, he has reason to believe
that the trade mark complained of is used as a false trade mark, may require the importer of the goods, or
his agent, to produce any documents in his possession relating to the goods and to furnish information as
46
to the name and address of the person by whom the goods were consigned to India and the name and
address of the person to who m the goods were sent in I ndia.
(3) The importer or his agent shall, within fourteen days, comply with the requirement as aforesaid,
and if he fails to do so, he shall be punishable with fine which may extend to five hundred rupees.
(4) Any information obtained from the importer of the goods or his agent under this section may be
communicated by the Commissioner of Customs to the registered proprietor or registered user of the trade
mark which is alleged to have b een used as a false trade mark.
141. Certificate of validity .If in an y legal proceeding for rectification of the register before the
1[High Court ] a decision is on contest given in favour of the registered proprietor of the trade mark on the
issue as to the validity of the registration of the trade mark, the 1[High Court ] may grant a certificate to
that effect, and if such a certificate is granted, then, in any subsequent legal proceeding in which the said
validity comes into question the said proprietor on obtaining a final order or judg ment in his favour
affirming validi ty of the registration of the trade mark shall, unle ss the said final order or judg ment for
sufficient reason directs otherwise , be entitled to his full cost charges and expenses as between legal
practitioner and client.
142. Groundless threats of legal pr oceedings .(1) Where a person, by means of circulars,
advertisements or otherwise, threatens a person with an action or proceeding for infringement of a trade
mark which is regi stered, or alleged by the first -mentioned person to be registered, or with some other
like proceeding, a person aggrieved may, whether the person making the threats is or is not the registered
proprietor or the registered user of the trade mark, bring a suit against the first -mentioned person and may
obtain a declaration to the effec t that the threats are unjustifiable, and an injunction against the
continuance of the threats and may recover such damages (if any) as he has sustained, unless the
first-mentioned person satisfies the court that the trade mark is registere d and that the acts in respect of
which the proceedings were threatened, constitute, or, if done, would constitute, an infringement of the
trade mark.
(2) The last preceding sub -section does not apply if the registered proprietor of the trade mark, or a
registered user acting in pursuance of sub -section ( 1) of section 52 with due diligence commences and
prosecutes an action against the person threatened for infringement of the trade mark.
(3) Nothing in this section shall render a legal practitioner or a re gistered trade marks agent liable to
an action under this section in respect of an act done by him in his professional c apacity on behalf of a
client.
(4) A suit under sub -section ( 1) shall not be instituted in any cour t inferior to a District Court.
143. Address for service .An address for service stated in an application or notice of opposition
shall for the purposes of the application or notice of opposition be deemed to be the address of the
applicant or opponent, as the case may be, and all documents i n relation to the application or notice of
opposition may be served by leaving them at or sending them by post to the address for service of the
applicant o r opponent, as the case may be.
144. Trade usage s, etc. , to be taken into consideration .In any proceeding relating to a trade
mark, the 2[Registrar or the High Court, as the case may be, ] shall admit evidence of the usage s of the
trade concerned and of any relevant trade mark or trade name or get up legi timately used by other
persons.
145. Ag ents.Where, by or under this Act, any act, other than the making of an affidavit, is required
to be done before the Registrar by any person, the act may, subject to the rules made in this behalf, be
done instead of by that person himself, by a person duly autho rised in the prescribed manner, who is
(a) a legal practitioner, or
(b) a person registered in the prescribed ma nner as a trade marks agent, or
(c) a person in the sole and regul ar employment of the principal.
1. Subs. by Act 33 of 2021, s. 21, for Appellate Board (w.e.f. 4 -4-2021).
2. Subs. by s. 21 , ibid., for tribunal (w.e.f. 4 -4-2021).
47
146. Marks registered by an agent or represen tative without authority .If an agent or a
representative of the proprietor of a registere d trade mark, without authority uses or attempts to register or
registers the mark in his own name, the proprietor shall be entitled to oppose the registration applie d for
or secure its cancellation or rectification of the register so as to bring him as the registered proprietor of
the said ma rk by assignment in his favour:
Provided that such action shall be taken within three years of the registered proprietor of the trade
mark becoming aware of the conduct of the agen t or representative.
147. Indexes .There shall be kept under the direction and supervision of the Registrar
(a) an i ndex of registered trade marks;
(b) an index of trade marks in respect of which application s for registration are pending;
(c) an index of the names of the proprietors of registered trade marks; and
(d) an index of the names of registered users.
148. Documents open to public inspection .(1) Save as otherwise provided in sub -section ( 4) of
section 49 ,
(a) the register and any document upon which any entry in the register is based;
(b) every notice of opposition to t he registration of a trade mark |
register and any document upon which any entry in the register is based;
(b) every notice of opposition to t he registration of a trade mark application for rectification
before the Registrar, counter -statement thereto, and any aff idavit or document filed by the parties in
any pr oceedings before the Registrar;
(c) all regulations deposited under section 63 or section 74, and all applications under section 66
or section 7 7 for varying such regulations;
(d) the indexe s mentioned in se ction 147; and
(e) such other documents as the Central Government may, by notification in the Official Gazette,
specify,
shall, subject to such conditions as may be prescribed, be open to public inspecti on at the Trade Marks
Registry:
Provided that when such register is maintained wholly or partly on computer, the inspection of such
register under this section shall be made b y inspecting the computer print out of the relevant entry in the
register so maintained on computer.
(2) Any person may, on an applic ation to the Registrar and on payment of such fees as may be
prescribed, obtain a certified copy of any entry in the register or any document referred to in
sub-section ( 1).
149. Reports of Registrar to be placed before Parliament .The Centr al Government shall cause
to be placed before both Houses of Pa rliament once a year a report re specting the execution by or u nder
the Registrar of this Act.
150. Fees and surcharge .(1) There shall be paid in respect of 1[applications, international
applications ] and registration and other matters under this Act such fees and surcharge as may be
prescr ibed by the Central Government.
(2) Where a fee is payable in respect of the doing of an act by the Registrar, the Registrar shall not do
that a ct until the fee has been paid.
(3) Where a fee is payable in respect of the filing of a document at the Trade Marks Registry, the
document shall be deemed not to have been filed at the Regist ry until the fee has been paid.
151. Savings in respect of certain matte rs in Chapter XII .Nothi ng in Chapter XII shall
(a) exempt any person from any suit or other proceeding which might, but for anything in that
Chap ter, be brought against him; or
1. Subs. by Act 40 of 2010, s. 8, for applications (w.e.f. 8 -7-2013).
48
(b) entitle any person to refuse to make a complete discovery, or to answer a ny question or
interrogatory in any suit or other proceeding, but such discovery or answer shall not be admissible in
evidence against such person in any such prosecution for an offence under that Chapter or against
clause ( h) of section 112 of the Customs Act, 1962 (52 of 1962) relating to confiscation of goods
under clause ( d) of section 111 of that Act and notified by the Central Government under clause ( n) of
sub-section ( 2) of section 11 thereof for the protection of trade marks relating to import of goods; or
(c) be construed so as to render liable to any prosecution or punishment any servant of a master
resident in India who in good faith acts in obedience to the instructions of such master, and, on
demand made by or on behalf of the prosecutor, has given full information as to his master and as to
the instructions which h e has received from his master.
152. Declaration as to ownership of trade mark not registrable under the Registration
Act, 1908 .Notwithstanding anything contain ed in the Registration Act, 1908 (16 of 1908 ), no
document declaring or purporting to declare the ownership or title of a person to a trade mark other than a
registered trade mark shall be registered under that A ct.
153. Government to be bound .The provisions of this Act shal l be binding on the Government.
154. Special provisions relating to applications for registration from citizens of convention
countries .(1) With a view to the fulfil ment of a treaty, convention or arrangement with any country or
country which is a member of a group of countries or union of countries or Inter -Governmental
Organi sation outside India which affords to citizens of India similar privileges as granted to its own
citizens, the Central Government may, by notification in the Official Ga zette, declare such country or
group of countries or union of countries or Inter -Governmental Organi sation to be a convention country
or group of countries or union of countries or Inter -Governmental Organi sation, as the case may be, for
the purposes of th is Act.
(2) Where a person has made an application for the registration of a trade mark in a convention
country or country which is a member of a group of countries or union of countries or Inter -Governmental
Organi sation and that person, or his legal representative or assignee, makes an application for the
registration of the trade mark in India within six months after the date on which the application was made
in the convention country or country which is a member of a g roup of countries or union of countries or
Inter -Governmental Organi sation s, the trade mark shall, if registered under this Act, be registered as of
the date on which the application was made in the convention country or country which is a member of a
group of countries or union of countries or Inter -Governmental Organi sation and that date shall be
deemed for the purposes of this Act to be the date of registration.
(3) Where applications have been made for the registration of a trade mark in two or more con vention
countries or country which are members of group of countries or union of countries or
Inter -Governmental Organi sation, the period of six months referred to in the last preceding sub -section
shall be reckoned from the date on which the earlier or earliest of those applications was made.
(4) Nothing in this Act shall entitle the proprietor of a trade mark to recover damages for infringement
which took place prior to the date of application f or registration under this Act .
155. Provision as to reciprocity .Where any country or country which is a member of a group of
countries or union of countries or Inter -Governmental Organi sation specified by the Central Government
in this behalf b y notification in the Official Gazette does not accord to citizens of India the same rights in
respect of the registration and protection of trade marks as it accords to its own nationals, no national of
such country or country which is a member of a group of countries or union of count ries or Inter -
Governmental Organi sation, as the case may be, shall be entitled, either solely or jointly with any other
person ,
(a) to apply for the registration of , or be registered as t he proprietor of, a trade mark;
(b) to be registered as the assignee of the proprietor of a registered trade mark; or
(c) to apply for registration or be registered as a registered user of a trade mark under section 49.
156. Power of Central Government to remove difficulties .(1) If any difficulty arises in giving
effect t o the provisions of this Act, the Central Government may, by order published in the Official
49
Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be
necessa ry for removing the difficulty:
Provided that no order sh all be made under this section after the expiry of five years fro m the
commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid b efore each
House of Parliament.
157. Power to make rules .(1) The Central Government may, by notification in the Official
Gazette and subject to the conditions of previous publication, make rules to carry out the provisions of
this Act.
(2) In particular, and without prejudice to the generality of the foregoing pow er, such rules may
provide for all or any of the following matters, namely :
(i) the matters to be included in the Register of Trade Marks under sub -section ( 1) of section 6,
and the safeguards to be observed in the maintenance of records on computer flopp ies or diskettes or
in any other electronic form under sub -section ( 2) of that section;
(ii) the manner of publication of alphabetical index of classification of goods and services under
sub-section ( 1) of section 8;
(iii) the manner in which the Registrar may not ify a word as an international non-proprietary
name under section 13;
(iv) the manner of making an application for dissolution of an association under sub -section ( 5) of
section 16;
(v) the manner of making an application for registration of a trad e mark under sub -section ( 1) of
section 18;
(vi) the manner of advertising of an application for registration under sub -section ( 1), and the
manner of notifying corrections or amendments under sub -section ( 2), of section 20;
1[(vii) the manner of giving a notice of opposition and the fee payable for such notice under
sub-section ( 1) and sending counter -statement under sub-section (2) and submission of evidence and
the time therefor under sub -section ( 4) of section 21;]
(viii) the form of certificate of registration under sub -section ( 2), and the manner of giving notice
to the applicant under sub -section ( 3) of section 23;
(ix) the forms of applicat ion for renewal and restoration the time within which such application is
to be made and fee and surcharge if any payable with each application, under section 25 and the time
within which the Registrar shall send a notice and the manner of such notice under
sub-section ( 3) of that section;
2[(ixa) the time within which the international application is to be forwarded to the International
Bureau and the manner of certifying the particulars by the Registrar under sub -section ( 4) of section
36D;
(ixb) the manner of keeping a record of particulars of an international registratio n under
sub-section ( 1) of section 36E;
(ixc) the manner of informing the International Bureau under sub -section ( 2) of section 36E;
(ixd) the manner of advertising the international registration and the time within which the
international registr ation shall be advertised under sub -section (3) of section 3 6E;]
(x) the manner of submitting statement of cases under sub -section ( 2) of section 40;
(xi) the manner of making an application by the proprietor of a trade mark under section 41;
1. Subs. by Act 40 of 2010, s. 9, for clause ( vii) (w.e.f. 8 -7-2013).
2. Ins. by s. 9, ibid. (w.e.f. 8 -7-2013).
50
(xii) the manner of making an application for assignment or transmission of a certificati on trade
mark under section 43;
(xiii) the manner of making an application to the Registrar to register title under sub -section ( 1) of
section 45;
2[(xiiia) the period within wh ich the Registrar shall dispose of an application under
sub-section ( 3) of section 45;]
(xiv) the manner in which and the period within which an application is to be made under
sub-section ( 4) of section 46;
(xv) the manner of making an application under sub -section ( 2) of s ection 47;
(xvi) the manner of making an application, documents and other evidence to accompany such
application under sub -section ( 1) and the manner in which notice is to be issued under sub -section ( 3)
of section 49;
(xvii) the manner of making an application under sub -section ( 1), the manner of issuing a notice
under sub -section ( 2) and the procedure for cancel ling a registration under sub -section ( 3) of
section 50;
(xviii) the manner of making applications under sub -sections ( 1) and ( 2), the manner of giving
notice under sub -section ( 4) and the manner of service of notice of rectification under sub -section ( 5)
of section 57;
(xix) the manner of making a n application under section 58;
(xx) the ma nner of making an application under sub -section ( 1), the manner of advertising an
application, time and manner of notice by which application may be opposed under sub -sections ( 2)
and ( 3) of section 59;
(xxi) the manner of advertisement under sub -section ( 2) of section 60;
(xxii) the other matters to be specified in the regulations under sub -section ( 2) of section 63;
(xxiii) the manner of making an application under sub-section ( 1) of section 71;
(xxiv) the manner of advertising a n application under section 73;
(xxv) the manner of making an application und er section 77;
1* * * * *
(xxix) the salaries and allowances payable to, and the other terms and conditions of service of, the
2[Chair person] , 3[Vice -Chair person] and other Members under sub -section ( 1) of section 88;
(xxx) the procedure for investigation of misbehavior or incapacity of the 1[Chair person] ,
2[Vice -Chairperson] and other Members under sub -section ( 3) of section 89;
4* * * * *
(xxxiii ) the form in which and the particulars to be included in the application to the 5[High Court ]
under sub -section ( 1) of section 97;
(xxxiv ) the manner of making an application for review under clause ( c) of section 127;
(xxxv) the time within which an application is to be made to the Registrar for exercising his
discret ionary power under section 128;
(xxxvi ) the manner of making an application and the fee payable therefor under sub -section ( 1) of
section 131;
1. Cls. ( xxvi), (xxvii ) and ( xxviii ) omitted by Act 40 of 2010, s. 9 (w.e.f. 8 -7-2013).
2. Subs. by Act 7 of 2017, s. 161, for Chairman (w.e.f. 26 -5-2017).
3. Subs. by s. 161, ibid., for Vice -Chairman (w.e.f. 26 -5-2017).
4. Clauses ( xxxi) and ( xxxii ) omitted by Act 33 of 2021, s. 21 (w.e.f. 4 -4-2021).
5. Subs. by s. 21, ibid., for Appellate Board (w.e.f. 4 -4-2021).
51
(xxxvii ) the manner of making an ap plication under sub -section ( 1) and the period for withdrawal
of such application under sub -section ( 2) of section 133;
|
( 1) and the period for withdrawal
of such application under sub -section ( 2) of section 133;
(xxxviii ) the manner of authoris ing any p erson to act and the manner of registration as a trad e
mark agent under section 145;
(xxxix ) the conditions for inspection of documents under sub -section ( 1) and the fee payable for
obtaining a certified copy of any entry in the register under sub -section ( 2) of section 148;
(xl) the fees and surcharge payable for making applications and registratio n and o ther matters
under section 150;
(xli) any other matter which is requi red to be or may be prescribed.
(3) The power to make rules conferred by this section shall include the power to give retrospective
effect in respect of the matters referred to in clauses ( xxix) and ( xxxi) of sub -section ( 2) from a date not
earlier than the date of commencement of this Act, but no retrospective effect shall be given to any such
rule so as to prejudicially affect the interests of any person to wh om sub -rule may be applicable.
(4) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it
is made, before each House of Parliament, while it is in session for a total period of thirty days which may
be comprised in one session or i n two or more successive session s, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be ma de, the rule shall thereafter
have effect only in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything p reviously done under
that rule.
158. A mendments. The enactment specified in the Schedule shall be amended i n the manner
specified therein.
159. Repeal and savings. (1) The Trade and Merchandise Marks Act, 1958 (43 of 1958) is hereb y
repealed.
(2) Without prejudice to the provisions contained i n the General Clauses Act, 1897 (10 of 1987) , with
respect to repeals, any notific ation, rule, order, requirement , registration, certificate, notice, decision,
determinatio n, direction, approval, authoris ation, consent, application, request or thing made, issued,
given or done under the Trade and Merchandise Marks Act, 1958 (43 of 1958) shall, if in force at the
commencement of this Act, continue to be in force and have effect as if made, issued, given or done under
the corres ponding provisions of this Act.
(3) The provisions of this Act shall apply to any application for registration of a trade mark pending at
the commencement of this Act and to any proceedings consequent thereon and to any registration granted
in pursuance thereof.
(4) Subject to the provisions of section 100 and notwithstanding anything contained in any other
provision of this Act, any legal proceeding pending in any court at the commencement of this Act may be
continued in that court as if t his Act had not been passed.
(5) Notwithsta nding anything contained in this Act, where a particular use of a registered trade mark
is not an infringement of a trade mark registered before the commencement of this Act, then, the
continued use of that mark shall not be an infringement under this Act.
(6) Notwithstanding anything contained in sub -section ( 2), the date of expiration of registration of a
trade mark registered before the commencement of this Act shall be the date immediately after the period
of seven years for whic h it was registered or r enewed:
Provided that the registration of a defensive trade mark referred to in section 47 of the Trade and
Merchandise Marks Act, 1958 (43 of 1958) shall cease to have effect on the date immediately after the
expiry of five years of such commencement or after the expiry of the period for which it was registered or
renewed, whichever is earlier.
52
THE SCHEDULE
(See section 158)
AMENDMENTS
Year Act No. Short title Amendment
1956 1 The Companies
Act, 1956 (1) In Section 20, for sub -section ( 2), the following
sub-sections shall be substituted, namely:
(2) Without prejudice to the generality of the foregoing
power, a name which is identical with, or too nearly
resembles,
(i) the name by which a company in existence has
been previously registered, or
(ii) a registered trade mark, or a trade mark which is
subject of an application for registration, of any
other person under the Trade Marks Act, 1999,
may be deemed to be undesirable by the Central
Government within the meaning of sub -section (1).
(3) The C entral Government may, before deeming a name
as undesirable under clause ( ii) of sub -section ( 2),
consult the Registrar of Trade Marks..
(II) In section 22, in sub -section ( 1),
(i) for the portion beginning with if, through and
ending with the first -mentioned company the
following shall be substituted, namely:
If, through inadvertence or otherwise, a company on
its first registration or on its registration by a new
name, is registered by a name which,
(i) in the opinion of the Ce ntral Government, is
identical with, or too nearly resembles, the name
by which a company in existence has been
previously registered, whether under this Act or
any previous companies law, the first mentioned
company, or
(ii) on an application by a registe red proprietor of a
trade mark, is in the opinion of the Central
Government identical with, or too nearly
resembles, a registered trade mark of such
proprietor under the Trade Marks Act, 1999,
such company, ;
(ii) the following proviso shall be added, nam ely:
Provided that no application under clause ( ii)
made by a registered proprietor of a trade mark
after five years of coming to notice of
registration of the company shall be considered
by the Central Government..
|
THE PLACES OF WORSHIP (SPECIAL PROVISIONS) ACT, 199 1
ACT NO. 42 OF 1991
[18 th September , 1991.]
An Act to prohibit conversion of any place of worsh ip and to provide for the maintenance of the
religious character of any place of worship as it e xisted on the 15th day of August, 1947, and
for matters connected therewith or incidental there to.
BE it enacted by Parliament in the Forty-second Year of the Republic of India as follows:
1. Short title, extent and commencement. (1) This Act may be called the Places of Worship
(Special Provisions) Act, 1991.
(2) It extends to the whole of India except the State of Jammu and Kashmir*.
(3) The provisions of sections 3, 6 and 8 shall come into force at once and the remaining provisions of
this Act shall be deemed to have come into force on the 11th day of July, 1991.
2. Definitions. In this Act, unless the context otherwise requires ,
(a) commencement of this Act means the commencement of this Act on the 11th day of July,
1991;
(b) conversion, with its grammatical variations, in cludes alteration or change of whatever
nature;
(c) place of worship means a temple, mosque, gurudw ara, church, monastery or any other place
of public religious worship of any religious denomi nation or any section thereof, by whatever name
called.
3. Bar of conversion of places of worship. No person shall convert any place of worship of an y
religious denomination or any section thereof into a place of worship of a different section of the sa me
religious denomination or of a different religious denomination or any section thereof.
4. Declaration as to the religious character of ce rtain places of worship and bar of jurisdiction
of courts, etc. (1) It is hereby declared that the religious characte r of a place of worship existing on the
15th day of August, 1947 shall continue to be the s ame as it existed on that day.
(2) If, on the commencement of this Act, any suit, ap peal or other proceeding with respect to the
conversion of the religious character of any place of worship, existing on the 15th day of August, 194 7, is
pending before any court, tribunal or other authori ty, the same shall abate, and no suit, appeal or ot her
proceeding with respect to any such matter shall li e on or after such commencement in any court, tribu nal
or other authority:
Provided that if any suit, appeal or other proceedi ng, instituted or filed on the ground that conversi on
has taken place in the religious character of any s uch place after the 15th day of August, 1947, is pe nding
on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in
accordance with the provisions of sub-section ( 1).
(3) Nothing contained in sub-section ( 1) and sub-section ( 2) shall apply to,
(a) any place of worship referred to in the said sub- sections which is an ancient and historical
monument or an archaeological site or remains cover ed by the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1 958) or any other law for the time being in
force;
(b) any suit, appeal or other proceeding, with respec t to any matter referred to in sub-section ( 2),
finally decided, settled or disposed of by a court, tribunal or other authority before the
commencement of this Act;
*. Vide notification No. S.O. 3912(E), dated 30th October, 2019, this Act is made applicable to the Union ter ritory of Jammu
and Kashmir and the Union territory of Ladakh.
3
(c) any dispute with respect to any such matter settl ed by the parties amongst themselves before
such commencement;
(d) any conversion of any such place effected before such commencement by acquiescence;
(e) any conversion of any such place effected before such commencement which is not liable to
be challenged in any court, tribunal or other autho rity being barred by limitation under any law for t he
time being in force.
5. Act not to apply to Ram Janma Bhumi-Babri Masjid . Nothing contained in this Act shall
apply to the place or place of worship commonly kno wn as Ram Janma Bhumi-Babri Masjid situated in
Ayodhya in the State of Uttar Pradesh and to any su it, appeal or other proceeding relating to the said place
or place of worship.
6. Punishment for contravention of section 3 .(1) Whoever contravenes the provisions of section
3 shall be punishable with imprisonment for a term which may extend to three years and shall also be
liable to fine.
(2) Whoever attempts to commit any offence punishable under sub-section ( 1) or to cause such
offence to be committed and in such attempt does an y act towards the commission of the offence shall b e
punishable with the punishment provided for the off ence.
(3) Whoever abets, or is a party to a criminal conspi racy to commit, an offence punishable under sub-
section ( 1) shall, whether such offence be or be not committe d in consequence of such abetment or in
pursuance of such criminal conspiracy, and notwiths tanding anything contained in section 116 of the
Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
7. Act to override other enactments .The provisions of this Act shall have effect notw ithstanding
anything inconsistent therewith contained in any ot her law for the time being in force or any instrume nt
having effect by virtue of any law other than this Act.
8. [ Amendment of Act 43 of 1951.] Rep. by the Repealing and Amending Act , 2001
(30 of 2001), s. 2 and the First Schedule (w.e.f. 3-9-2001).
|
THE PUBLIC RECORDS ACT, 1993
ACT NO. 69 OF 1993
[21st December , 1993 .]
An Act to regulate the management, administration and preservation of public records of the
Central Government, Union t erritory Administrations, public sector undertakings, statutory
bodies and corporations, commissions and committees constituted by the Centr al
Government or a Union t erritory Administration and matters connected t herewith or
incidental thereto.
BE it enacted by Parliament in the Forty -fourth Year of the Republic of India as fo llows:
1. Short title and commencement .(1) This Act may be calle d the Public Records Act, 1993.
(2) It shall come into force on such date1 as the Central Government may, by notification i n the
Official Gazette, appoint.
2. Definitions .In this Act, unless th e context otherwise requires,
(a) Boar d means the Archival Advisory Board constituted under sub-section ( 1) of section 13;
(b) Director General means the Director General of Archives appointed by the Central
Government and includes any officer authoris ed by that Government to perform the dut ies of the
Director General;
(c) head of the Archives means a person holding the charge of the Archives of the Union
territory Administration;
(d) prescribed means prescribe d by rules made under this Act;
(e) public records includes
(i) any document, ma nuscript and file;
(ii) any microfilm, microfiche an d facsimile copy of a document;
(iii) any reproduction of image or images embodied in such microfilm (whether enlarged or
not); and
(iv) any other material produced by a computer or by any ot her device,
of an y records creating agency;
(f) recor ds creating agency includes,
(i) in relation to the Central Government, any ministry, departmen t or office of that
Government;
(ii) in relation to any statutory body or corporation wholly or substantial ly controlled or
financed by the Central Government or commission or any committee constituted by that
Government, the offices of the said body, corpor ation, commission or committee;
(iii) in relation to a Union t erritory Administration, any department or office of that
Adm inistration;
(iv) in relation to any statutory body or corporation wholly or substantially controlled or
financed by Union territory Administration or commission or any committee constituted by that
Administration , the offices of the said body, corporation, co mmission or committee;
(g) records officer means the officer nominated by the records creating agency unde r
sub-section ( 1) of section 5.
1.1st March, 1995, vide notification No. S.O. 128 (E), dated 1st March, 1995, see Gazette of India, Extraordinary, Part II ,
sec.3(ii).
This Act has been extended to the Union territory Jammu and Kashmir and the Union territory of Ladakh by Act 34 of 2019, s.
95 and the Fifth Schedule (w.e.f. 31 -10-2019).
3
3. Power of the Central Government to coordinate, regulate and supervise operations connected
with administration, management, etc., of public records .(1) The Central Government shall have
the power to coordinate, regulate and supervise the operations connected with the administration,
management, preservation, selection, disposal and retirement of public records under this Act.
(2) The Central Government in relation to the public records of the records creating agencies
specified in sub -clauses ( i) and ( ii) of clause ( f) of section 2 and the Union territory Administration in
relation to the public records of the records creating agencies specified in sub -clauses ( iii) and ( iv) of the
said clause, may, by order, a uthoris e the Director General or the head of the Archives, as the case may be,
subject to such conditions as may be specified in the order, to carry out all or any of th e following
function s, namely:
(a) supervision, manageme nt and control of the Archives.
(b) acceptance for deposit of public records of permanent nature after su ch period as may be
prescribed;
(c) custody, use an d withdrawal of public records;
(d) arrangement, preservation an d exhibition of public records;
(e) preparation of inventories, indices, catalogues and other reference media of pu blic reco rds;
(f) analys ing, developing, promoting and coordinating the standards, procedures and the
techniques for improvement of the records management system ;
(g) ensuring the maintenance, arrangement and security of public records in the Archives and in
the offices of the records creating agency;
(h) promoting utilis ation of available space and maintenance of equipments for preserving public
records;
(i) tendering advice to records creating agencies on the compilation, classification and disposal of
records and application of standards, procedures and te chniques of records management;
(j) survey an d inspection of public records;
(k) organis ing training programmes i n various disciplines of Archives adminis tration and records
management;
(l) accepting records from any pri vate source;
(m) regul ating access to public records;
(n) receiving records from defunct bodies and making arrangement for securing public records in
the event of national emergency;
(o) receiving reports on records management and disposal practices from the records officer;
(p) providing authenticated copies of, or extracts from, public records;
(q) destroying or disposal of public records;
(r) obtaining on lease or purchasing or accepting as gift any document of his torical or national
importance.
4. Prohibition against taking of public records out of India .No person shall take or cause to be
taken out of India any public records without the pri or appr oval of the Central Government:
Provided that no such prior approval shall be required if any public records are taken or sent out of
India for any official purpose.
5. Records officer .(1) Every records creating agency shall nominate one of its officers as records
officer to discharg e the functions under this Act.
(2) Every records creating agency may set up such number of record rooms in such places as it deems
fit and shall place each record room under t he charge of a records officer.
4
6. Responsibilities of records officer .(1) The records o fficer shall be responsible for
(a) proper arrangement, maintenance and preservation of public records under his charge;
(b) periodical review of all public records and weeding out public records of euphe meral value;
(c) appraisal of public records which are more than twenty -five years old in consultation with the
National Archives of India or, as the case may be, the Archives of the Union territory with a view to
retaining public records of permanent value;
(d) destruction of public records in such manner and subject to such conditions as m ay be
prescribed unde r sub -section ( 1) of section 8;
(e) compilation of a schedule of retention for public records in consultation with the National
Archives of India or, as the case may be, the A rchives of the Union t erritory;
(f) periodical review for do wngrading of classified public records in su ch manner as may be
prescribed;
(g) adoption of such standards, procedures and techniques as may be recommended from time to
time by the National Archives of India for improvement of record management system and
maintenance of security of public records;
(h) compilation of an nual indices of public r ecords;
(i) compilation of organis ational history and annual supplement thereto;
(j) assisting the National Archives of India or, as the case may be, the Archives of the Union
territory for public records management;
(k) submission of annual report to the Director General or, as the case may be , head of the
Archives in such manne r as may be prescribed;
(l) transferring of records of any defunct body to the National Archives of Indi a or the Archives
of the Union t erritory, as the case may be, for preservation.
(2) The records officer shall act under the direction of the Director General or, as the case may be,
head of the Archives while discharging the responsibilitie s specified in sub -section ( 1).
7. Records officer to take appro priate action in the event of unauthorised removal, destruction,
etc., of public records in his custody .(1) The records officer shall , in the event of any unauthorised
removal destruction, defacement or alteration of any public records under his charge, f orthwith take
appropriate action for the recovery or rest oration of such public records.
(2) The records officer shall submit a report in writing to the Director General or , as the case may be ,
the head of the Archives without any delay on any information about any unauthoris ed removal,
destruction, defacement or alteration of any public records under his charge and about the action initiated
by him and shall take action as he may deem necessary subject to the directions, if any , given by the
Director General or, as the cas e may be, head of the Archives.
(3) The records officer may seek assistance from any government officer or any other person for the
purpose of recovery or restoration of public records and such officer or person shall render all ass istance
to the records officer.
8. Destruction or disposal of public records .(1) Save as otherwise provided in any law for the
time being in force, no public record shall be destroyed o r otherwise disposed of except in such manner
and subject to such c ondit ions as may be prescribed.
(2) No record created before the year 1892 shall be destroyed except where in the opinion of the
Director General or, as the case may be, the head of the Archives, it is so defaced or is in such condition
that it can not be put to any archival use.
9. Penalty for contraventions .Whoever contravenes any of the provisions of section 4 or section 8
shall be punishable with imprisonment for a term which may extend to five years or with fine which may
extend to te n thousand rupees or with both.
5
10. Public records bearing security classification .No public records bearing security
classification shall be transferred to the National Archives of Indi a or the Archives of the Union t erritory.
11. Receipt of records from private sources .(1) The National Archives of Indi a or the Archives
of the Union t erritory may accept any record of historical or national importance from any private source
by way of gift, purchase or otherwise.
(2) The National Archives of India or, as the case may be, the Archives of any Union t erritory may, in
such manner and subject to such conditions as may be prescribed, make any record referred to in
sub-section ( 1) available to any bona fide research scholar.
12. Access to public records .(1) All unclassified public records as are more than thirty years old
and are transferred to the National Archives of Indi a or the Archives of the Union t erritory may be,
subject to such exceptions and restrictions as may be prescribed made available to any bona fide research
schola r.
Explanation .For the purposes of this sub -section, the period of thirty years shall be reckoned from
the year of th e opening of the public record.
(2) Any records creating agency may grant to any person access to any public record in its custody in
such manner and subject to such c onditions as may be prescribed.
13. Archival Advisory Board .(1) The Central Government may, by notification in the Official
Gazette, constitute an Archival Advisory Board f or the purposes of this Act.
(2) The Board shall consist of the following members, namely :
(a) Secretary to the Government of India in the Ministry of
Central Government dealing with Culture Chairman, ex officio ;
(b) one officer not below the rank of Joint Secretary to the
Government of India, each from the Cabinet
Secretariat, Ministry of Home Affairs,Ministry of
Defence, Ministry of External Affairs, Ministry of
Finance and Ministry of Personnel , Public Grievances
and Pension Members, ex officio ;
(c) two representatives not below the rank o f Joint
Secretary in the Union t erritory Administrations to be
nomi nated by the Central Government Members ;
(d) three persons to be nominated by the Central
Government for a period not exceeding three years,
one being an Archivist and two being Professors in the
Post-graduate Depar tment of History in any recognis ed
University. Members;
(e) Director General Member -Secre tary,
ex officio
(3) The members nominated under clause ( d) of sub -section ( 2) shall be paid such a llowances as may
be prescribed.
14. Functions of the Board .The Board shall perform the following functions, n amely:
(a) advise th e Central Government and Union t erritory Administrations on matters concerning the
administration, management, conserva tion and use of public records;
(b) lay down guideli nes for training of Archivists;
(c) give directions for acquisition of r ecords from private custody;
(d) deal with such othe r matters as may be prescribed.
6
15. Power of the Director General to lay down norms and standards for courses in archival
science .The Director General shall have the power to lay down norms and standards for courses
curricula, assessment an d examinations relating to the training in archival scienc e and other ancillary
subjects.
16. Protection of action taken in good faith .No suit, prosecution or other legal proceedings shall
lie against any person in respect of anything which is in good fai th done or intended to be done in
pursuance of this Ac t or the rules made thereunder.
17. Power to make rules .(1) The Central Government may, by notificatio n in the Official Gazette,
make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:
(a) the period after which public records of permanent nature may be accepted under clause ( b) of
sub-section ( 2) of section 3;
(b) the manner in which and the conditions subject to which public records can be destroyed
under clause ( d) of sub -section (1) of section 6;
(c) the manner in which periodical review of classified public records for downgrading sha ll be
underta ken under clause ( f) of sub -section ( 1) of section 6;
(d) the manner in which the records officer will report to the Director General or the head of the
Archives under clause ( k) of sub section ( 1) of section 6;
(e) the manner in which and the conditions subject to which public records may be destroyed or
disposed of unde r sub -section ( 1) of section 8;
(f) the manner in which and the conditions subject to which records of historical or national
importance may be made ava ilable to research scholar under sub-section ( 2) of section 11;
(g) exceptions and restrictions subject to which public records may be made available to a
research scholar under sub-section ( 1) of section 12;
(h) the manner in which and the |
a
research scholar under sub-section ( 1) of section 12;
(h) the manner in which and the conditions subj ect to which any records creating agency may
grant to any person access to public records in its custody under sub-section ( 2) of section 12;
(i)the allowances payable to members of the Board under sub-section ( 3) of section 13;
(j) the matters with respect to which the Board may perform its functions under clause ( d) of
section 14;
(k) any other matter which is require d to be, or may be, prescribed.
18. Laying of rules before Parliament .Every rule made under this Act shall be laid, as soon as
may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately fo llowing the session or the successive sessions aforesaid, both Houses
agree in making any modification in the rule or both Houses agree that the rule should not be made, the
rule shall thereafter have effect only in such modified form or be of no effect, a s the case may be; so,
however, that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that rule. |
THE SURROGACY (REGULATION) ACT, 2021
ACT NO. 47 OF 2021
[25th December , 2021.]
An Act to constitute National Assisted Reproductive Technology and Surrogacy Board, State
Assisted Reproductive Technology and Surrogacy Boards and appointment of appropriate
authorities for regulation of the practice and process of surrogacy and for matte rs connected
therewith or incidental thereto.
BE it enacted by Parliament in the Seventy -second Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement .(1) This Act may be called the Surrogacy
(Regulation) Act, 2021.
(2) It shall come into force on such date1 as the Central Government may, by notification in the
Official Gazette, appoint .
2. Definitions . (1) In this Act, unless the context otherwise requires,
(a) abandoned child means a child born out of surrogacy procedure who has been deserted
by his intending parents or guardians and declared as abandoned by the appropriate authority after
due enquiry;
(b) altruistic surrogacy means the surrogacy in which no charges, expenses, fees,
remuneration o r monetary incentive of whatever nature, except the medical expenses and such
other prescribed expenses incurred on surrogate mother and the insurance coverage for the
surrogate mother, are given to the surrogate mother or her dependents or her representat ive;
(c) appropriate authority means the appropriate authority appointed under Section 35;
(d) Assisted Reproductive Technology Act means the Assisted Reproductive Technology
(Regulation) Act, 2021;
(e) Board means the National Assisted Reproductive Technology and Surrogacy Board
constituted under Section 17;
(f) clinical establishment shall have the same meaning as assigned to it in the Clinical
Establishments (Registration and Regulation) Act, 2010 (23 of 2010);
(g) commercial surrogacy means co mmercialisation of surrogacy services or procedures or its
component services or component procedures including selling or buying of human embryo or
trading in the sale or purchase of human embryo or gametes or selling or buying or trading the
services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or
monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative,
except the medical expenses and such other prescribed expenses incurr ed on the surrogate mother
and the insurance coverage for the surrogate mother;
1. 25th January , 2021, vide Notification no. S.O. 292(E), dated 20th January , 2021, see Gazette of India, Extraordinary,
Part II, sec. 3 ( ii).
4
(h) couple means the legally married Indian man and woman above the age of 21 years and
18 years respectively;
(i) egg includes the female gamete;
(j) embryo means a deve loping or developed organism after fertilisation till the end of fifty -
six days;
(k) embryologist means a person who possesses any post -graduate medical qualification or
doctoral degree in the field of embryology or clinical embryology from a recognised university
with not less than two years of clinical experience;
(l) fertilisation means the penetration of the ovum by the spermatozoan and fusion of genetic
materials resulting in the development of a zygote;
(m) foetus means a human organism during t he period of its development beginning on the
fifty-seventh day following fertilisation or creation (excluding any time in which its development
has been suspended) and ending at the birth;
(n) gamete means sperm and oocyte;
(o) gynaecologist shall hav e the same meaning as assigned to it in the Pre -conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (57 of 1994);
(p) implantation means the attachment and subsequent penetration by the zona -free
blastocyst, which star ts five to seven days following fertilisation;
(q) insurance means an arrangement by which a company, individual or intending couple
undertake to provide a guarantee of compensation for medical expenses, health issues, specified
loss, damage, illness or death of surrogate mother and such other prescribed expenses incurred on
such surrogate mother during the process of surrogac y;
(r) intending couple means a couple who have a medical indication necessitating gestational
surrogacy and who intend to become parents through surrogacy;
(s) intending woman means an Indian woman who is a widow or divorcee between the age of
35 to 45 years and who intends to avail the surroga cy;
(t) Member means a Member of the National Assisted Reproductive Technology and
Surrogacy Board or a State Assisted Reproductive Technology and Surrogacy Board, as the case
may be;
(u) notification means a notification published in the Official Gazette;
(v) oocyte means naturally ovulating oocyte in the female genetic tract;
(w) Pa ediatrician means a person who possesses a post -graduate qualification in paediatrics
as recognised under the Indian Medical Council Act, 1956 (102 of 1956);
(x) prescribed means prescribed by rules made under this Act;
(y) registered medical practitio ner means a medical practitioner who possesses any
recognised medical qualification as defined in clause (h) of Section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register;
(z) regulation m eans regulations made by the Board under this Act;
5
(za) sex selection shall have the same meaning as assigned to it in clause ( o) of Section 2 of
the Pre -conception and Pre -natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
(57 of 1994) ;
(zb) State Board means the State Assisted Reproductive Technology and Surrogacy Board
constituted under section 26;
(zc) State Government in relation to Union territory with Legislature, means the
Administrator of the Union territory appointed by the President under article 239 of the
Constitution;
(zd) surrogacy means a practice whereby one woman bears and gives birth to a child for an
intending couple with the intention of handing over such child to the intending couple after the
birth;
(ze) surrogacy clinic means surrogacy clinic, centre or laboratory, conducting assisted
reproductive technology services, invitro f ertilisation services, genetic counselling centre, genetic
laboratory, Assisted Reproductive Technology Banks conducting surrogacy procedure or any
clinical establishment, by whatsoever name called, conducting surrogacy procedures in any form;
(zf) surrog acy procedures means all gynaecological, obstetrical or medical procedures,
techniques, tests, practices or services involving handling of human gametes and human embryo in
surrogacy;
(zg) surrogate mother means a woman who agrees to bear a child (who i s genetically related
to the intending couple or intending woman) through surrogacy from the implantation of embryo
in her womb and fulfils the conditions as provided in sub -clause ( b) of clause ( iii) of Section 4;
(zh) zygote means the fertilised oocyte prior to the first cell division.
(2) Words and expressions used herein and not defined in this Act but defined in the Assisted
Reproductive Technology Act shall have the meanings respectively assigned to them in that Act.
CHAPTER II
REGULATION OF SURROGA CY CLINICS
3. Prohibition and regulation of surrogacy clinics. On and from the date of commencement of
this Act,
(i) no surrogacy clinic, unless registered under this Act, shall conduct or associate with, or help
in any manner, in conducting activities r elating to surrogacy and surrogacy procedures;
(ii) no surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical
practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of
commercial surrogacy i n any form;
(iii) no surrogacy clinic shall employ or cause to be employed or take services of any person,
whether on honorary basis or on payment, who does not possess such qualifications as may be
prescribed;
(iv) no registered medical practitioner, gynaecologist, paediatrician, embryologist or any other
person shall conduct or cause to be conducted or aid in conducting by himself or through any other
person surrogacy or surrogacy procedures at a place other than a place registered under this Act;
6
(v) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician,
embryologist or any other person shall promote, publish, canvass, propagate or advertise or cause
to be promoted, published, canvassed, propagated or advertised which
(a) is aimed at inducing or is likely to induce a woman to act as a surrogate mother;
(b) is aimed at promoting a surrogacy clinic for commercial surrogacy or promoting
commercial surrogacy in general;
(c) seeks or aimed at seeking a woman to act as a surroga te mother;
(d) states or implies that a woman is willing to become a surrogate mother; or
(e) advertises commercial surrogacy in print or electronic media or in any other form;
(vi) no surrogacy clinic, registered medical practitioner, gynaecologist, paedi atrician,
embryologist, intending couple or any other person shall conduct or cause abortion during the
period of surrogacy without the written consent of the surrogate mother and on authorisation of the
same by the appropriate authority concerned:
Provide d that the authorisation of the appropriate authority shall be subject to, and in
compliance with, the provisions of the Medical Termination of Pregnancy Act, 1971 (34 of 1971);
(vii) no surrogacy clinic, registered medical practitioner, gynaecologist, pae diatrician,
embryologist, intending couple or any other person shall store a human embryo or gamete for the
purpose of surrogacy:
Provided that nothing contained in this clause shall affect such storage for other legal purposes
like sperm banks, IVF and me dical research for such period and in such manner as may be
prescribed;
(viii) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician,
embryologist, intending couple or any other person shall in any form conduct or cause to be
conducted sex selection for surrogacy.
CHAPTER III
REGULATION OF SURROGACY AND SURROGACY PROCEDURES
4. Regulation of surrogacy and surrogacy procedures . On and from the dat e of
commencement of this Act,
(i) no place including a surrogacy clinic shall be used or cause to be used by any person for
conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and
after satisfying all the conditions specified in clause (iii);
(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed
of, except for t he following purposes, namely:
(a) when an intending couple has a medical indication necessitating gestational surrogacy:
Provided that a couple of Indian origin or an intending woman who intends to avail
surrogacy, shall obtain a certificate of recommendation from the Board on an application made
by the said persons in such form and manner as may be prescribed.
Explanation .For the purposes of this sub -clause and item ( I) of sub -clause ( a) of clau se
(iii) the expression gestational surrogacy means a practice whereby a surrogate mother carries
7
a child for the intending couple through implantation of embryo in her womb and the child is
not genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for commercialisation of surrogacy or
surrogacy procedures;
(d) when it is not for producing children for sale, prostitution or any other form of
exploitation; and
(e) any other condition or disease as may be specified by regulations made by the Board;
(iii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or
initiated, unless the Director or in -charge of the surrogacy clinic and the person q ualified to do so
are satisfied, for reasons to be recorded in writing, that the following condition s have been
fulfilled, namely:
(a) the intending couple is in possession of a certificate of essentiality issued by the
appropriate authority, after satisf ying itself, for the reasons to be recorded in writing, about the
fulfilment of the following conditions, namely:
(I) a certificate of a medical indication in favour of either or both members of the
intending couple or intending woman necessitating gesta tional surrogacy from a District
Medical Board.
Explanation .For the purposes of this item, the expression District Medical Board
means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil
Surgeon or Joint Director of Health Services of the district and comprising of at least two
other specialists, namely, the chief gynaecologist or obstetrician and chief paediatrician of
the district;
(II) an order concerning the parentage and custody of the child to be born through
surrogacy , has been passed by a court of the Magistrate of the first class or above on an
application made by the intending couple or the intending woman and the surrogate mother,
which shall be the birth affidavit after the surrogate child is born; and
(III) an insurance coverage of such amount and in such manner as may be prescribed in
favour of the surrogate mother for a period of thirty -six months covering postpartum
delivery complications from an insurance company or an agent recognised by the Insurance
Regul atory and Development Authority established under the Insurance Regulatory and
Development Authority Act, 1999 (41 of 1999);
(b) the surrogate mother is in possession of an eligibility certificate issued by the appropriate
authority on fulfilment of the following conditions, namely:
(I) no woman, other than an ever married woman having a child of her own and between
the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in
surrogacy by donating her egg or oocyte or otherwise;
(II) a willing woman shall act as a surrogate mother and be perm itted to undergo
surrogacy procedures as per the provisions of this Act:
8
Provided that the intending couple or the intending woman shall approach the
appropriate authority with a willing woman who agrees to act as a surrogate mother;
(III) no woman shall a ct as a |
ropriate authority with a willing woman who agrees to act as a surrogate mother;
(III) no woman shall a ct as a surrogate mother by providing her own gametes;
(IV) no woman shall act as a surrogate mother more than once in her lifetime:
Provided that the number of attempts for surrogacy procedures on the surrogate mother
shall be such as may be prescribed; a nd
(V) a certificate of medical and psychological fitness for surrogacy and surrogacy
procedures from a registered medical practitioner;
(c) an eligibility certificate for intending couple is issued separately by the appropriate
authority on fulfilment of the following conditions, namely: --
(I) the intending couple are married and between the age of 23 to 50 years in case of
female and between 26 to 55 years in case of male on the day of certification;
(II) the intending couple have not had any surviving ch ild biologically or through
adoption or through surrogacy earlier:
Provided that nothing contained in this item shall affect the intending couple who have a
child and who is mentally or physically challenged or suffers from life threatening disorder
or fat al illness with no permanent cure and approved by the appropriate authority with due
medical certificate from a District Medical Board; and
(III) such other conditions as may be specified by the regulations.
5. Prohibition of conducting surrogacy . No pers on including a relative or husband of a
surrogate mother or intending couple or intending woman shall seek or encourage to conduct any
surrogacy or surrogacy procedures on her except for the purpose specified in clause ( ii) of section 4.
6. Written informed consent of surrogate mother .(1) No person shall seek or conduct
surrogacy procedures unless he has
(i) explained all known side effects and after effects of such procedures to the surrogate mother
concerned; and
(ii) obtained in the pr escribed form, the written informed consent of the surrogate mother to
undergo such procedures in the language she understands.
(2) Notwithstanding anything contained in sub -section ( 1), the surrogate mother shall have an
option to withdraw her consent fo r surrogacy before the implantation of human embryo in her womb.
7. Prohibition to abandon child born through surrogacy. The intending couple or intending
woman shall not abandon the child, born out of a surrogacy procedure, whether within India or
outsid e, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect,
any other medical condition, the defects developing subsequently, sex of the child or conception of
more than one baby and the like.
8. Rights of surrogate child. A child born out of surrogacy procedure, shall be deemed to be a
biological child of the intending couple or intending woman and the said child shall be entitled to all
the rights and privileges available to a natural child under any law for time b eing in force
9
9. Number of oocytes or human embryos to be implanted. The number of oocytes or human
embryos to be implanted in the uterus of the surrogate mother for the purpose of surrogacy, shall be
such as may be prescribed.
10. Prohibition of abortion . No person, organisation, surrogacy clinic, laboratory or clinical
establishment of any kind shall force the surrogate mother to abort at any stage of surrogacy except in
such conditions as may be prescribed.
CHAPTER IV
REGISTRATION OF SURROGACY CLINICS
11. Registration of surrogacy clinics. (1) No person shall establish any surrogacy clinic for
undertaking surrogacy or to render surrogacy procedures in any form unless such clinic is duly
registered under this Act.
(2) Every application for registration under sub -section ( 1) shall be made to the appropriate
authority in such form, manner and shall be accompanied by such fees as may be prescribed.
(3) Every surrogacy clinic which is conducting surrogacy or surrogacy procedures, partly or
exclusively, ref erred to in clause ( ii) of section 4 shall, within a period of sixty days from the date of
appointment of appropriate authority, apply for registration:
Provided that such clinic shall cease to conduct any such counselling or procedures on the expiry
of si x months from the date of commencement of this Act, unless such clinic has applied for
registration and is so registered separately or till such application is disposed of, whichever is earlier.
(4) No surrogacy clinic shall be registered under this Act, unless the appropriate authority is
satisfied that such clinic is in a position to provide such facilities and maintain such equipment and
standards including specialised manpower, physical infrastructure and diagnostic facilities as may be
prescribed.
12. Certificate of registration. (1) The appropriate authority shall after holding an enquiry and
after satisfying itself that the applicant has complied with all the requirements of this Act and the rules
and regulations made thereunder, grant a certificate of registration to the surrogacy clinic, within a
period of ninety days from the date of application received by it, in such form, on payment of such
fees and in such manner, as may be prescribed.
(2) Where, after the inquiry and after giving an opportuni ty of being heard to the applicant, the
appropriate authority is satisfied that the applicant has not complied with the requirements of this Act
or the rules or regulations made thereunder, it shall, for reasons to be recorded in writing, reject the
applic ation for registration.
(3) Every certificate of registration shall be valid for a period of three years and shall be renewed
in such manner and on payment of such fees as may be prescribed.
(4) The certificate of registration shall be displayed by the sur rogacy clinic at a conspicuous place.
13. Cancellation or suspension of registration. (1) The appropriate authority may, suo motu or
on receipt of a complaint, issue a notice to the surrogacy clinic to show cause as to why its registration
should not be s uspended or cancelled for the reasons mentioned in the notice.
(2) If after giving a reasonable opportunity of being heard to the surrogacy clinic, the appropriate
authority is satisfied that there has been a breach of the provisions of the Act or the rule s or
regulations made thereunder, it may, without prejudice to any criminal action that it may take against
such clinic, suspend its registration for such period as it may think fit or cancel its registration, as the
case may be.
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(3) Notwithstanding anythi ng contained in sub -sections ( 1) and ( 2), if the appropriate authority is
of the opinion that it is necessary or expedient to do so in the public interest, it may, for reasons to be
recorded in writing, suspend the registration of any surrogacy clinic with out issuing any notice under
sub-section ( 1).
14. Appeal. The surrogacy clinic or the intending couple or the intending woman may, within a
period of thirty days from the date of receipt of the communication relating to order of rejection of
application, suspension or cancellation of registration passed by the appropriate authority under
section 13 and communication relating to rejection of the certificates under section 4, prefer an appeal
against such order to
(a) the State Government, where the appeal is against the order of the appropriate authority of a
State;
(b) the Central Government, where the appeal is against the order of the appropriate authority
of a Union territory,
in such manner as may be prescribed.
15. Establishment of National Assisted Reproductive Technology and Surrogacy Registry.
There shall be established a Registry to be called the National Assisted Reproductive Technology and
Surrogacy Registry for the purposes of registration of surrogacy clinics under this Act.
16. Application o f provisions of Assisted Reproductive Technology Act with respect to
National Registry. The National Assisted Reproductive Technology and Surrogacy Registry
referred to in section 15 and to be established under section 9 of the Assisted Reproductive
Techn ology Act shall be the National Registry for the purposes of this Act and the functions to be
discharged by the said Registry under the Assisted Reproductive Technology Act shall, mutatis
mutandis, apply.
CHAPTER V
NATIONAL ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD AND STATE ASSISTED
REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARDS
17. Constitution of National Assisted Reproductive Technology and Surrogacy Board. (1)
The Central Government shall, by notification, constitute a Board to be kn own as the National
Assisted Reproductive Technology and Surrogacy Board to exercise the powers and perform the
functions conferred on the Board under this Act.
(2) The Board shall consist of
(a) the Minister in -charge of the Ministry of Health and Family Welfare, the Chairperson,
ex officio ;
(b) the Secretary to the Government of India in -charge of the Department dealing with the
surrogacy matter, Vice -Chairperson, ex officio ;
(c) three women Members of Parliament, of whom two shall be elected by the House of the
People and one by the Council of States, Members, ex officio ;
(d) three Members of the Ministries of the Central Government in -charge of Women and Child
Development, Legi slative Department in the Ministry of Law and Justice and the Ministry of
Home Affairs, not below the rank of Joint Secretary, Members, ex officio ;
(e) the Director General of Health Services of the Central Government, Member, ex officio ;
(f) ten expert Me mbers to be appointed by the Central Government in such manner as may be
prescribed and two each from amongst
(i) eminent medical geneticists or embryologists;
(ii) eminent gynaecologists and obstetricians;
(iii) eminent social scientists;
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(iv) representa tives of women welfare organisations; and
(v) representatives from civil society working on women's health and child issues,
possessing such qualifications and experience as may be prescribed;
(g) four Chairpersons of the State Boards to be nominated by th e Central Government by
rotation to represent the States and the Union territories, two in the alphabetical order and two in
the reverse alphabetical order, Member, ex officio ; and
(h) an officer, not below the rank of a Joint Secretary to the Central Gove rnment, in -charge of
Surrogacy Division in the Ministry of Health and Family Welfare, who shall be the Member -
Secretary, ex officio .
18. Term of office of Members. (1) The term of office of a Member, other than an ex officio
Member, shall be
(a) in case of election under clause ( c) of sub -section ( 2) of section 1 7, three years:
Provided that the term of such Member shall come to an end as soon as the Member becomes a
Minister or Minister of State or Deputy Minister, or the Speaker or the Deputy Speaker of the
House of the People, or the Deputy Chairman of the Council of States or ceases to be a Member of
the House from which she was elected; and
(b) in case of appointment under clause ( f) of sub -section ( 2) of section 17, three years:
Provided th at the person to be appointed as Member under this clause shall be of such age as
may be prescribed.
(2) Any vacancy occurring in the office whether by reason of his death, resignation or inability to
discharge his functions owing to illness or other incap acity, shall be filled by the Central Government
by making a fresh appointment within a period of one month from the date on which such vacancy
occurs and the Member so appointed shall hold office for the remainder of the term of office of the
person in wh ose place he is so appointed.
(3) The Vice -Chairperson shall perform such functions as may be assigned to him by the
Chairperson from time to time.
19. Meetings of Board. (1) The Board shall meet at such places and times and shall observe
such rules of procedure in regard to the transaction of business at its meetings (including the quorum
at its meetings) as may be determined by the regulations:
Provided that the Board shall meet at least once in six months.
(2) The Chairperson shall preside at the meet ing of the Board and if for any reason the Chairperson
is unable to attend the meeting of the Board, the Vice -Chairperson shall preside at the meetings of the
Board.
(3) All questions which come up before any meeting of the Board shall be decided by a majo rity of
the votes of the members present and voting, and in the event of an equality of votes, the Chairperson,
or in his absence, the Vice -Chairperson shall have a second or casting vote.
(4) The Members, other than ex officio Members, shall receive only compensatory travelling
expenses for attending the meetings of the Board.
20. Vacancies, etc., not to invalidate proceedings of Board. No act or proceeding of the Board
shall be invalid merely by reason of
(a) any vacancy in, or any defect in the constitution of, the Board; or
(b) any defect in the appointment of a person acting as a Member of the Board; or
(c) any irregularity in the procedure of the Board not affecting the merits of the case.
21. Disqualifications for appointment as Member. (1) A person shall be disqualified for
being appointed and continued as a Member if, he
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(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence, which in the opinion of the Central Government, involves
moral turpitude; or
(c) has becom e physically or mentally incapable of acting as a Member; or
(d) has acquired such financial or other interest, as is likely to affect prejudicially his functions
as a Member; or
(e) has so abused his position, as to render his continuance in office prejud icial to the public
interest; or
(f) is a practicing member or an office -bearer of any association representing surrogacy clinics,
having financial or other interest likely to affect prejudicially, his function as a Member; or
(g) is an office -bearer, head ing or representing, any of the professional bodies having
commercial interest in surrogacy or infertility.
(2) The Members referred to in clause ( f) of section 17 shall not be removed from their office
except by an order of the Central Government on the g round of their proved misbehaviour or
incapacity after the Central Government, has, on an inquiry, held in accordance with the procedure
prescribed in this behalf by the Central Government, come to the conclusion that the Member ought
on any such ground to be removed.
(3) The Central Government may suspend any Member against whom an inquiry under sub -section
(2) is being initiated or pending until the Central Government has passed an order on receipt of the
report of the inquiry.
22. Temporary association of persons with Board for particular purposes. (1) The Board
may associate with itself, in such manner and for such purposes as may be determined by the
regulations, any person whose assistance or advice it may desire in carrying out any of the provisions
of this Act.
(2) A person associated with the Board under sub -section ( 1) shall have a right to take part in the
discussions relevant to that purpose, but shall not have a right to vote at a meeting of the Board and |
right to take part in the
discussions relevant to that purpose, but shall not have a right to vote at a meeting of the Board and
shall not be a Me mber for any other purpose.
23. Authentication of orders and other instruments of Board .All orders and decisions of the
Board shall be authenticated by the signature of the Chairperson and all other instruments issued by
the Board shall be authenticated b y the signature of the Member -Secretary of the Board.
24. Eligibility of Member for re -appointment. Subject to other terms and conditions of
service as may be prescribed, any person ceasing to be a Member shall be eligible for re -appointment
as such Member:
Provided that no Member other than an ex officio Member shall be appointed for more than two
consecutive terms.
25. Functions of Board. The Board shall discharge the following functions, namely:
(a) to advise the Central Government on policy matters relating to surrogacy;
(b) to review and monitor the implementation of the Act, and the rules and regulations made
thereunder and recommend to the Central Government, changes therein;
(c) to lay down the code of conduct to be observed by persons wo rking at surrogacy clinics;
(d) to set the minimum standards of physical infrastructure, laboratory and diagnostic
equipment and expert manpower to be employed by the surrogacy clinics;
(e) to oversee the performance of various bodies constituted under the Act and take appropriate
steps to ensure their effective performance;
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(f) to supervise the functioning of State Assisted Reproductive Technology and Surrogacy
Boards; and
(g) such other functions as may be prescribed.
26. Constitution of State Assisted R eproductive Technology and Surrogacy Board. Each
State and Union territory having Legislature shall constitute a Board to be known as the State Assisted
Reproductive Technology and Surrogacy Board or the Union territory Assisted Reproductive
Technology an d Surrogacy Board, as the case may be, which shall discharge the following functions,
namely:
(i) to review the activities of the appropriate authorities functioning in the State or Union
territory and recommend appropriate action against them;
(ii) to mo nitor the implementation of the provisions of the Act, and the rules and regulations
made thereunder and make suitable recommendations relating thereto, to the Board;
(iii) to send such consolidated reports as may be prescribed, in respect of the various a ctivities
undertaken in the State under the Act, to the Board and the Central Government; and
(iv) such other functions as may be prescribed.
27. Composition of State Board. The State Board shall consist of .
(a) the Minister in -charge of Health and Family Welfare in the State, Chairperson, ex officio ;
(b) the Secretary in -charge of the Department of Health and Family Welfare, Vice -Chairperson,
ex officio;
(c) Secretaries or Commissioners in -charge of the Departm ents of Women and Child
Development, Social Welfare, Law and Justice and Home Affairs or their nominees, members, ex
officio;
(d) Director -General of Health and Family Welfare of the State Government, member, ex
officio;
(e) three women members of the State Legislative Assembly or Union territory Legislative
Council, members, ex officio;
(f) ten expert members to be appointed by the State Government in such manner as may be
prescribed, two each from amongst
(i) eminent medi cal geneticists or embryologists;
(ii) eminent gynaecologists and obstetricians;
(iii) eminent social scientists;
(iv) representatives of women welfare organisations; and
(v) representatives from civil society working on women's health and child issues,
possessing such qualifications and experiences as may be prescribed;
(g) an officer not below the rank of Joint Secretary to the State Government in -charge of
Family Welfare, who shall be the Member -Secretary, ex officio .
28 . Term of office of members. (1) The term of office of a member, other than an ex officio
member, shall be .
(a) in case of nomination under clause ( e) of section 27, three years:
Provided that the term of such member shall come to an end as soon as the member becomes a
Minister or Minister of State or Deputy Minister, or the Speaker or the Deputy Speaker of the
Legislative Assembly, or the Deputy Chairman of the Legislative Council or ceases to be a
member of the House from which she was elected; and
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(b) in case of appointment under clause ( f) of section 27, three years:
Provided that the person to be appointed as member under this clause shall be of such age, as
may be prescribed.
(2) Any vacancy occurring in the office whether by reason of his death, resignation or inability to
discharge his functions owing to illness or other incapacity, shall be filled within a period of one
month from the date on which such vacancy occurs by the State Government by making a fresh
appointment and the member so appointed shall hold office for the r emainder of the term of office of
the person in whose place he is so appointed.
(3) The Vice -Chairperson shall perform such functions as may be assigned to him by the
Chairperson from time to time.
29. Meetings of State Board. (1) The State Board shall meet at such places and times and shall
observe such rules of procedure in regard to the transaction of business at its meetings (including the
quorum at its meetings) as may be specified by the regulations:
Provided that the State Board shall meet at leas t once in four months.
(2) The Chairperson shall preside at the meetings of the Board and if for any reason the Chairman
is unable to attend the meeting of the State Board, the Vice -Chairperson shall preside at the meetings
of the State Board.
(3) All ques tions which come up before any meeting of the State Board shall be decided by a
majority of the votes of the members present and voting, and in the event of an equality of votes, the
Chairperson, or in his absence, the Vice -Chairperson shall have a second or casting vote.
(4) The members, other than ex officio members, shall receive only compensatory travelling
expenses for attending the meetings of the State Board.
30. Vacancies, etc., not to invalidate proceedings of State Board. No act or proceeding of the
State Board shall be invalid merely by reason of
(a) any vacancy in, or any defect in the constitution of, the State Board; or
(b) any defect in the appointment of a person acting as a member of the State Board; or
(c) any irregularity in the procedure of the State Board not affecting the merits of the case.
31. Disqualifications for appointment as member .(1) A person shall be disqualified for being
appointed and continued as a member if, he
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence, which in the opinion of the State Government, involves
moral turpitude; or
(c) has become physically or mentally incapable of acting as a member; or
(d) has acquired such financial or other interest, as is likely to affect pr ejudicially his functions
as a member; or
(e) has so abused his position, as to render his continuance in office prejudicial to the public
interest; or
(f) is a practicing member or an office -bearer of any association representing surrogacy clinics,
having financial or other interest likely to affect prejudicially, his functions as a member; or
(g) is an office -bearer, heading or representing, any of the professional bodies having
commercial interest in surrogacy or infertility.
(2) The members referred to in clause ( f) of section 27 shall not be removed from their office
except by an order of the State Government on the ground of their proved misbehaviour or incapacity
after the State Government, has, on an inquiry, held in accordance with the procedure pre scribed in
15
this behalf by the State Government, come to the conclusion that the member ought on any such
ground to be removed.
(3) The State Government may suspend any member against whom an inquiry under sub -section
(2) is being initiated or pending until the State Government has passed an order on receipt of the
report of the inquiry.
32. Temporary association of persons with State Board for particular purposes . (1) The
State Board may associate with itself, in such manner and for such purposes as may be determined by
the regulations, any person whose assistance or advice it may desire in carrying out any of the
provisions of this Act.
(2) A person associated with it by the State Board under sub -section ( 1) shall have a right to take
part in the discussio ns relevant to that purpose, but shall not have a right to vote at a meeting of the
State Board and shall not be a member for any other purpose.
33 . Authentication of orders and other instruments of State Board .All orders and decisions
of the State Board shall be authenticated by the signature of the Chairperson and all other instruments
issued by the State Board shall be authenticated by the signature of the Member -Secretary of the State
Board.
34. Eligibility of member for re -appointment . Subject to th e other terms and conditions of
service as may be prescribed, any person ceasing to be a member shall be eligible for re -appointment
as such member:
Provided that no member other than an ex officio member shall be appointed for more than two
consecutive te rms.
CHAPTER VI
APPROPRIATE AUTHORITY
35. Appointment of appropriate authority . (1) The Central Government shall, within a period
of ninety days from the date of commencement of this Act, by notification, appoint one or more
appropriate authorities for each of the Union territories for the purposes of this Act and the Assisted
Reproductive Technology Act.
(2) The State Government shall, within a period of ninety days from the date of commencement of
this Act, by notification, appoint one or more appropriate authorities for the whole or any part of the
State for the purposes of this Act and the Assisted Reproductive Technology Act.
(3) The appropriate authority, under sub -section (1) or sub -section ( 2), shall,
(a) when appointed for the whole of the State or t he Union territory, consist of
(i) an officer of or above the rank of the Joint Secretary of the Health and Family Welfare
Department --Chairperson, ex officio ;
(ii) an officer of or above the rank of the Joint Director of the Health and Fami ly Welfare
Department --Vice Chairperson, ex officio ;
(iii) an eminent woman representing women's organisation --member;
(iv) an officer of Law Department of the State or the Union territory concerned not below
the rank of a Deputy Secretary --member; and
(v) an eminent registered medical practitioner --member:
Provided that any vacancy occurring therein shall be filled within one month of the
occurrence of such vacancy;
(b) when appointed for any part of the State or the Union territory, be officers of such ot her
rank as the State Government or the Central Government, as the case may be, may deem fit.
16
36. Functions of appropriate authority. The appropriate authority shall discharge th e
following functions, namely:
(a) to grant, suspend or cancel registration of a surrogacy clinic;
(b) to enforce the standards to be fulfilled by the surrogacy clinics;
(c) to investigate complaints of breach of the provisions of this Act, rules and regulations made
thereunder and take legal action as per provision of this Act;
(d) to take appropriate legal action against the use of surrogacy by any person at any place other
than prescribed, suo motu or brought to its notice, and also to initiate independent investigations in
such matter;
(e) to supervise the implementation of the provisions of this Act and rules and regulations made
thereunder;
(f) to recommend to the Board and State Boards about the modifications required in the rules
and regulations in accordance with changes in technology or social conditions;
(g) to take actio n after investigation of complaints received by it against the surrogacy clinics;
and
(h) to consider and grant or reject any application under clause ( vi) of section 3 and sub -clauses
(a) to ( c) of clause ( iii) of section 4 within a period of ninety days.
37. Powers of appropriate authorities . (1) The appropriate authority shall exercise the powers
in respect of the following matters, namely:
(a) summoning of any person who is in possession of any information relating to violation of
the provisions of this Act, and rules and regulations made thereunder;
(b) production of any document or material object relating to clause ( a);
(c) search any place suspected to be violating the provisions of this Act, and the rules and
regulations made thereunder; and
(d) such other powers as may be prescribed.
(2) The appropriate authority shall maintain the details of registration of surrogacy clinics,
cancellation of registration, renewal of registration, grant of certificates to the intending couple and
surrogate mothe rs or any other matter pertaining to grant of license, etc., of the surrogacy clinics in
such format as may be prescribed and submit the same to the National Assisted Reproductive
Technology and Surrogacy Board.
CHAPTER VI I
OFFENCES AND PENALTIES
38. Prohibition of commercial surrogacy, exploitation of surrogate mothers and children
born through surrogacy. (1) No person, organisation, surrogacy clinic, laboratory or clinical
establishment of any kind shall.
(a) undertake commercial surrogacy, provid e commercial surrogacy or its related component
procedures or services in any form or run a racket or an organised group to empanel or select
surrogate mothers or use individual brokers or intermediaries to arrange for surrogate mothers and
for surrogacy p rocedures, at such clinics, laboratories or at any other place;
(b) issue, publish, distribute, communicate or cause to be issued, published, distributed or
communicated, any advertisement in any manner regarding commercial surrogacy by any means
whatsoeve r, scientific or otherwise;
(c) abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form,
the child or children born through surrogacy;
17
(d) exploit or cause to be exploited the surrogate mother or the child born through surrogacy in
any manner whatsoever;
(e) sell human embryo or gametes for the purpose of surrogacy and run an agency, a racket or
an organisation for selling, purchasing or trading in human embryos or gametes for the purpose of
surrogacy;
(f) import or shal l help in getting imported in, whatsoever manner, the human embryo or human
gametes for surrogacy or for surrogacy procedures; and
(g) conduct sex selection in any form for surrogacy.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1 860), contraventions of
the provisions of clauses (a) to (g) of sub -section ( 1) by any person shall be an offence punishable
with imprisonment for a term which may extend to ten years and with fine which may extend to ten
lakh rupe |
ence punishable
with imprisonment for a term which may extend to ten years and with fine which may extend to ten
lakh rupees.
(3) For the purposes of this section, the expression advertisement includes any notice, circular,
label, wrapper or any other document including advertisement through internet or any other media, in
electronic or print form and also includes any visible representation made b y means of any hoarding,
wall-painting, signal light, sound, smoke or gas.
39. Punishment for contravention of provisions of Act. (1) Any registered medical
practitioner, gynaecologists, paediatrician, embryologists or any person who owns a surrogacy cli nic
or employed with such a clinic or centre or laboratory and renders his professional or technical
services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and
who contravenes any of the provisions of this Act (ot her than the provisions referred to in section 38)
and rules and regulations made thereunder shall be punishable with imprisonment for a term which
may extend to five years and with fine which may extend to ten lakh rupees.
(2) In case of subsequent or con tinuation of the offence referred to in sub -section ( 1), the name of
the registered medical practitioner shall be reported by the appropriate authority to the State Medical
Council concerned for taking necessary action including suspension of registration for a period of five
years.
40. Punishment for not following altruistic surrogacy. Any intending couple or intending
woman or any person who seeks the aid of any surrogacy clinic, laboratory or of a registered medical
practitioner, gynaecologist, paediat rician, embryologist or any other person for not following the
altruistic surrogacy or for conducting surrogacy procedures for commercial purposes shall be
punishable with imprisonment for a term which may extend to five years and with fine which may
exten d to five lakh rupees for the first offence and for any subsequent offence with imprisonment
which may extend to ten years and with fine which may extend to ten lakh rupees.
41. Penalty for contravention of provisions of Act or rules for which no specific punishment
is provided. Whoever contravenes any of the provisions of this Act, rules or regulations made
thereunder for which no penalty has been provided in this Act, shall be punishable with imprisonment
for a term which may extend to three years and with fine which may extend to five lakh rupees and in
the case of continuing contravention with an additional fine which may extend to ten thousand rupees
for every day during whic h such contravention continues after conviction for the first such
contravention.
42. Presumption in the case of surrogacy. Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872), the court shall presume, unless the contrary is pr oved, that the
women or surrogate mother was compelled by her husband, the intending couple or any other relative,
as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose
other than those specified in clause ( ii) of section 4 and such person shall be liable for abetment of
such offence under section 40 and shall be punishable for the offence specified under that section.
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43. Offence to be cognizable, non -baliable and non -compoundable . Notwithstanding
anything conta ined in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act
shall be cognizable, non -bailable and non -compoundable.
44. Cognizance of offences. (1) No court shall take cognizance of any offence punishable under
this Act except on a complaint in writing made by --
(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the
Central Government or the State Government, as the case may be, or the appropriate authority; or
(b) a person includin g a social organisation who has given notice of not less that fifteen days in the
manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a
complaint to the court.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try any offence punishable under this Act.
45. Certain provisions of Code of Criminal Procedure, 1973 not to apply. Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said
Code relating to plea bargaining shall not apply to the offences under this Act.
CHAPTER VIII
MISCELLANEOUS
46. Maintenance of records. (1) The surrogacy clinic shall maintain all records, charts, forms,
reports, consent letters, agreements and all the documents under this Act and they shall be preserved
for a period of twenty -five years or such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any surrogacy cli nic, the
records and all other documents of such clinic shall be preserved till the final disposal of such
proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the
appropriate authority or to any other perso n authorised by the appropriate authority in this behalf.
47. Power to search and seize records, etc. (1) If the appropriate authority has reason to
believe that an offence under this Act has been or is being committed at any surrogacy clinic or any
other place, such authority or any officer authorised in this behalf may, subject to such rules as may
be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority
or officers considers necessary, such surrogacy clinic or any other place and examine any record,
register, document, book, pamphlet, advertisement or any other material object found therein and
seize and seal the same if such authority or officer has reason to believe that it may furnish evidence
of the comm ission of an offence punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and
seizure shall apply, as far as may be, to all action taken by the appropriate authority or any officer
authorised by it under this Act.
48. Protection of action taken in good faith. No suit, prosecution or other legal proceeding
shall lie against the Central Government or the State Government or the appropriate authority or any
officer authorised by the Central Govern ment or the State Government or by the appropriate authority
for anything which is in good faith done or intended to be done in pursuance of the provisions of this
Act.
49. Application of other laws not barred. The provisions of this Act shall be in addition to,
and not in derogation of, the provisions of any other law for the time being in force.
50. Power to make rules . (1) The Central Government may, by notification and subject to the
condition of pre -publication, make rules for carrying out the p rovisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for --
19
(a) the prescribed expenses under clauses ( b), (f) and ( q) of sub -section ( 1) of section 2;
(b) the minimum qualifications for persons employed at a registered surrogacy clinic under
clause ( iii) of section 3;
(c) the period and manner in which a person shall store human embryo or gamete under clause
(vii) of section 3;
(d) the form and manner of application for obtaining certificate of recommendation from the
Board under proviso to sub -clause ( a) of clause ( ii) of section 4;
(e) the insurance coverage in favour of the surrogate mother from an insurance company and
the manner of such coverage under item (III) of sub-clause ( a) of clause ( iii) of section 4;
(f) the number of attempts of surrogacy or providing of gametes under the proviso to item ( III)
of sub -clause ( b) of clause ( iii) of section 4;
(g) the form in which consent of a surrogate mother has to be obtained under clause ( ii) of
section 6;
(h) the number of oocytes or embryos to be implanted in the uterus of the surrogate mother
under section 9;
(i) the conditions under which the surrogate mother may be allowed for abortion during the
process of s urrogacy under section 10;
(j) the form and manner in which an application shall be made for registration and the fee
payable thereof under sub -section ( 2) of section 11;
(k) the facilities to be provided, equipment and other standards to be maintained by the
surrogacy clinics under sub -section ( 4) of section 11;
(l) the period, manner and form in which a certificate of registration shall be issued under sub -
section ( 1) of section 12;
(m) the manner in which the certificate of registration shall be renewed and the fee payable for
such renewal under sub -section ( 3) of section 12;
(n) the manner in which an appeal may be preferred under section 14;
(o) the qualifications and experiences of the Members as admissible under clause ( f) of sub -
section ( 2) of sectio n 17;
(p) the procedures for conducting an inquiry against the Members under sub -section ( 2) of
section 21;
(q) the conditions under which a Member of the Board eligible for re -appointment under
section 24;
(r) the other functions of the Board under clause (g) of section 25;
(s) the manner in which reports shall be furnished by the State Assisted Reproductive
Technology and Surrogacy Board and the Union territory Assisted Reproductive Technology and
Surrogacy Board to the Board and the Central Government un der clause (iii) of section 26;
(t) the other functions of the State Board under clause ( iv) of section 26;
(u) the qualifications and experiences of the members as admissible under clause ( f) of section
27;
(v) the age of the person to be appointed as a member, referred to in clause ( f) of section 27,
under the proviso to clause ( b) of sub -section (1) of section 28;
(w) the procedures for conducting an inquiry against the members under sub -section ( 2) of
section 31;
20
(x) the conditions under which the members of State Board eligible for re -appointment under
section 34;
(y) empowering the appropriate authority in any other matter under clause ( d) of section 36;
(z) the other powers of appropriate authority under clause ( d) of sub -section ( 1) of section 3 7;
(za) the particulars of the details of registration of surrogacy clinics, cancellation of registration,
etc., in such format under sub -section ( 2) of section 37;
(zb) the manner of giving notice by a person under clause ( b) of sub -section ( 1) of section 44;
(zc) the period up to which records, charts, etc., shall be preserved under sub -section (1) of
section 46;
(zd) the manner in which the seizure of documents, records, objects, etc., shall be made and the
manner in which seizure list shall be prepared and delivered under sub -section ( 1) of section 47;
and
(ze) any other matter which is to be, or may be, or in respect of which provision is to be made
by rules.
51. Power to make regulations. The Board may, with the prior approval of the Central
Governmen t, by notification, make regulations not inconsistent with the provisions of this Act and the
rules made thereunder to provide for.
(a) the fulfilment of any other condition under which eligibility certificate to be issued by the
appropriate authority und er sub -clause ( d) of clause ( v) of section 4;
(b) the time and place of the meetings of the Board and the procedure to be followed for the
transaction of business at such meetings and the number of Members which shall form the quorum
under sub -section ( 1) of section 19;
(c) the manner in which a person may be temporarily associated with the Board under sub -
section ( 1) of section 22;
(d) the time and place of the meetings of the State Board and the procedure to be followed for
the transaction of business at such meetings and the number of members which shall form the
quorum under sub -section ( 1) of section 29;
(e) the manner in which a person may be temporarily associated with the Board under sub -
section ( 1) of section 32; and
(f) any other matter which is re quired to be, or may be, specified by regulations.
52. Rules and regulations to be laid before Parliament. Every rule made by the Central
Government and every regulation made by the Board under this Act shall be laid, as soon as may be
after it is made, b efore each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the success ive sessions aforesaid, both
Houses agree in making any modification in the rule or regulation or both Houses agree that the rule
or regulation should not be made, the rule or regulation shall thereafter have effect only in such
modified form or be of no e ffect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done under that rule or
regulation or notification.
53. Transitional provision. Subject to the provisions of this Act, there shall be provided a
gestation period of ten months from the date of coming into force of this Act to existing surrogate
mothers' to protect their well being.
54. Power to remove difficulties. (1) If any difficulty arises in giving effect t o the provisions of
this Act, the Central Government may, by order published in the Official Gazette, make such
provisions not inconsistent with the provisions of the said Act as appear to it to be necessary or
expedient for removing the difficulty:
21
Provid ed that no order shall be made under this section after the expiry of a period of two years
from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before
each House of Parliamen t.
|
THE COMMERCIAL COURTS ACT, 2015
ACT NO. 4 OF 2016
[31st December , 2015.]
An Act to provide for the constitution of Commercial Courts, 1[Commercial Appellate Courts,]
Commercial Division and Commercial Appellate Division in the High Courts for
adjudicating commercial disputes of specified value and matters connected therewith or
incidental thereto.
BE it enacted by Parliament in the Sixty -sixth Year of the Republic of India as follows:
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement. 2[(1) This Act may be called t he Commercial Courts
Act, 2015.]
(2) It extends to the whole of India 3***.
(3) It shall be deemed to have come into force on the 23rd day of October, 2015.
2. Definitions. (1) In this Act, unless the context otherwise requires,
4[(a) Commercial Appellate Courts means the Commercial Appellate Cou rts designated under
section 3A ;]
5[(aa)] Commercial Appellate Division means the Commercial Appellate Division in a High
Court constituted under sub -section ( 1) of section 5;
(b) Commercial Court means the Commercial Court constituted under sub -section ( 1) of
section 3;
(c) commercial dispute means a dispute arising out of
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to
mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters,
including sales, leas ing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
1. Ins. by Act 28 of 2018, s. 2 (w.e.f. 3 -5-2018).
2. Subs. by s. 3, ibid., for sub-section (1) (w.e.f. 3 -5-2018).
3. The words except the State of Jammu and Kashmir omitted by Act 34 of 2019, s. 95 and the Fifth Schedule
(w.e.f. 31 -10- 2019).
4. Ins. by Act 28 of 2018 , s. 4 (w.e.f. 3 -5-2018).
5. Clause ( a) renumbered as clause ( aa) by s. 4, ibid., (w.e.f. 3 -5-2018).
4 (xiii) subscription and investment agreements pertaining to the services industry including
outsourcing services and finan cial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered and unregistered trademarks,
copyright, patent, design, domain nam es, geographical indications and semiconductor integrated
circuits;
(xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic
spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and
(xxii) such other commercial disputes as may be noti fied by the Central Government.
Explanation .A commercial dispute shall not cease to be a commercial dispute merely
because
(a) it also involves action for recovery of immovable property or for realisation of monies
out of immovable property given as security or involves any other relief pertaining to
immovable property;
(b) one of the contracting parties is the State or any of its agencies or instrumentalities, or
a private body carrying out public functions;
(d) Commercial Division means the Commercial Division in a High Court constituted under
sub-section ( 1) of section 4;
(e) District Judge shall have the same meaning as ass igned to it in clause (a) of article 236 of
the Constitution of India;
(f) document means any matter expressed or described upon any substance by means of letters,
figures or marks, or electronic means, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter;
(g) notification means a notification published in the Official Gazette and the expression
notify with its cognate meanings and grammatical variations shall be construed accordingly;
(h) Schedule means the Schedule appended to the Act; and
(i) Specified Value, in relation to a commercial dispute, shall mean the value of the subject -
matter in respect of a suit as determined in a ccordance with section 12 1[which shall not be less th an
three lakh rupees] or such higher value, as may be notified by the Central Government.
(2) The words and expressions used and not defined in this Act but defined in the Code of Civil
Procedure, 1908 (5 of 1908) and the Indian Evidence Act, 1872 (1 of 18 72), shall have the same
meanings respectively assigned to them in that Code and the Act.
1. Subs. by Act 28 of 2018, s. 4 , for which shall not be less than one crore rupees (w.e.f. 3 -5-2018).
5 CHAPTER II
1[COMMERCIAL COURTS, COMMERCIAL APPELLATE COURTS, COMMERCIAL DIVISIONS AND COMMERCIAL
APPELLATE DIVISIONS ].
3. Constitution of Commercial Courts. (1) The State Government, may after consultation with the
concerned High Court, by notification, constitute such number of Commercial Courts at District level, as
it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on th ose
Courts under this Act:
2[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State
Government may, after consultation with the concerned High Court, by notification, constitute
Commercial Courts at the Distric t Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original
civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall
not be less than three lakh rupees a nd not more than the pecuniary jurisdiction exercisable by the District
Courts , as it may consider necessary .]
3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation
with the concerned High Court, by notification, specify such pecuniary value which shall not be less than
three lakh rupees or such higher value, for whole or part of the State , as it may consider necessary .]
(2) The State Government shall, after consultation with the concerned High Court specify, by
notification, the local limits of the area to which the jurisdiction of a Commercial Court shall extend and
may, from time to time, increas e, reduce or alter such limits.
(3) The 4[State Government may] , with the concurrence of the Chief Justic e of the High Court appoint
one or more persons having experience in dealing with commercial disputes to be the Judge or Judges, of
a 5[Commercial Court either at the level of District Judge or a court belo w the level of a District Judge] .
6[3A. Designation of Commercial Appellate Courts .Except the territories over which the High
Courts have ordinary original civil jurisdiction, the State Government may, after consultation with the
concerned High Court, by notification, designate such number of C ommercial Appellate Courts at District
Judge level, as it may deem necessary, for the purposes of exercising the jurisdiction and powers
conferred on those Courts under this Act.]
4. Constitution of Commercial Division of High Court. (1) In all High Courts , having 7[ordinary
original civil jurisdiction ], the Chief Justice of the High Court may, by order, constitute Commercial
Division having one or more Benches consisting of a single Judge for the purpose of exercising the
jurisdiction and powers conferred on it under this Act.
(2) The Chief Justice of the High Court shall nominate such Judges of the High Court who have
experience in dealing with commercial disputes to be Judges of the Commercial Division.
5. Constitution of Commercial Appellate Division. (1) After issuing notification under sub -
section ( 1) of section 3 or order under sub -section ( 1) of section 4, the Chief Justice of the concerned
High Court shall, by order, constitute Commercial Appellate Division having one or more Division
Benches for the purpose of exercising the jurisdiction and pow ers conferred on it by the Act.
(2) The Chief Justice of the High Court shall nominate such Judges of the High Court who have
experience in dealing with commercial disputes to be Judges of the Commercial Appel late Division.
1. Subs. by Act 28 of 2018, s. 5 , for CONSTITUTION OF COMMERCIAL COURTS, COMMERCIAL DIVISIONS AND
COMMERCIAL APPELLATE DIVISIONS (w.e.f. 3 -5-2018).
2. The p roviso subs. by s. 6, ibid., (w.e.f. 3 -5-2018).
3. Ins. by s. 6, ibid., (w.e.f. 3 -5-2018).
4. Subs. by s. 6, ibid., for State Government shall (w.e.f. 3 -5-2018).
5. Subs. by s. 6, ibid., for Commercial Court, from amongst the cadre of Higher Judicial Service in the State
(w.e.f. 3 -5-2018).
6. Ins. by s. 7, ibid., (w.e.f. 3 -5-2018).
7. Subs. by s. 8, ibid., for ordinary civil jurisdiction (w.e.f. 3 -5-2018).
6 6. Jurisdiction of Commercial Court. The Commercial Court shall have jurisdiction to try all suits
and applications relating to a commercial dispute of a Specified Value arising out of the entire territory of
the State over which it has been vested territorial jurisdiction.
Explanation .For the purposes of this section, a commercial dispute shall be considered to arise out
of the entire territory of the State over which a Commercial Court has been vested jurisdiction, if the suit
or applicat ion relating to such commercial dispute has been instituted as per the provisions of sections 16
to 20 of the Code of Civil Procedure, 1908 (5 of 1908) .
7. Jurisdiction of Commercial Divisions of High Courts .All suits and applications relating to
commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction
shall be heard and disposed of by the Commerci al Division of that High Court:
Provided that all suits and applications relating to commercial dispute s, stipulated by an Act to lie in a
court not inferior to a District Court, and filed or pending on the original side of the High Court, shall be
heard and disposed of by the Commerc ial Division of the High Court:
Provided further that all suits and applic ations transferred to the High Court by virtue of sub -section
(4) of section 22 of the Designs Act, 2000 (16 of 2000) or section 104 of the Patents Act, 1970 (39 of
1970) shall be heard and disposed of by the Commercial Division of the High Court in all th e areas over
which the High Court exercises ordina ry original civil jurisdiction.
8. Bar against revision application or petition against an interlocutory order. Notwithstanding
anything contained in any other law for the time being in force, no civil revi sion application or petition
shall be entertained against any interlocutory order of a Commercial Court, including an order on the
issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only
in an appeal aga inst the decree of the Commercial Court.
9. [Transfer of suit if counterclaim in a commercial dispute is of Specified Value ]. Omitted by The
Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts
(Amendment) Act, 2018 (28 of 2018 ), s. 9 (w.e.f. 3-5-2018) .
10. Jurisdiction in respect of arbitration matters. Where the subject -matter of an arbitration is a
commercial dispute of a Specified Value and
(1) If such arbitration is an international commercial arbitration, all applications or appeals
arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26
of 1996) that have been filed in a High Court, shall be heard and disposed of by the Commercial
Division where such Commercial Di vision has been constituted in such High Court.
(2) If such arbitration is other than an international commercial arbitration, all applications or
appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) that have been filed on the original side of the High Court, shall be heard and
disposed of by the Commercial Division where such Commercial Division has been constituted in
such High Court.
(3) If such arbitration is other than an international commercial arbitration, all applications or
appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) that would ordinarily lie before any principal civil court of original jurisdiction in a
district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court
exercising territorial jurisdiction over such arbitration where such Commerc ial Court has been
constituted.
11. Bar of jurisdiction of Commercial C ourts an d Commercial Divisions. Notwithstanding
anything contained in this Act, a Commercial Court or a Commercial Division shall not entertain or
decide any suit, application or proceedings relating to any commercial dispute in respect of which the
jurisdiction o f the civil court is either expressly or impliedly bar |
ings relating to any commercial dispute in respect of which the
jurisdiction o f the civil court is either expressly or impliedly barred under any other law for the time being
in force.
7 CHAPTER II I
SPECIFIED VALUE
12. Determination of Specified Value. (1) The Specified Value of the subject -matter of the
commercial dispute in a suit, appeal or application shall be determined in the following manner:
(a) where the relief sought in a suit or application is for recovery of money, the money sought to
be recovered in the suit or application inclusive of interest, if any, computed up to t he date of filing of
the suit or application, as the case may be, shall be taken into account for de termining such Specified
Value;
(b) where the relief sought in a suit, appeal or application relates to movable property or to a right
therein, the market v alue of the movable property as on the date of filing of the suit, appeal or
application, as the case may be, shall be taken into account for de termining such Specified Value;
(c) where the relief sought in a suit, appeal or application relates to immovable property or to a
right therein, the market value of the immovable property, as on the date of filing of the suit, appeal
or application, as the case may be, shall be taken into account f or determining Specified Value; 1[and]
(d) where the relief sought in a suit, appeal or application relates to any other intangible right, the
market value of the said rights as estimated by the plaintiff shall be taken into account for
determining Specified Value; 2***
3* * * * *
(2) The aggregate value o f the claim and counterclaim, if any as set out in the statement of claim and
the counterclaim, if any, in an arbitration of a commercial dispute shall be the basis for determining
whether such arbitration is subject to the jurisdiction of a Commercial Div ision, Commercial Appellate
Division or Commercial Court, as the case may be.
(3) No appeal or civil revision application under section 115 of the Code of Civil Procedure, 1908
(5 of 1908) , as the case may be, shall lie from an order of a Commercial Division or Commercial Court
finding that it has jurisdiction to hear a commercial dispute under this Act.
4[CHAPTER IIIA
PRE-INSTITUTION MEDIATION AND SETTLEMENT
12A. Pre -Institution Mediation and Settlement (1) A suit, which does not contemplate any ur gent
interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre -
institution mediation in accordance with such manner and procedure as may be prescribed by rules made
by the Central Government.
(2) The Central Go vernment may, by notification, authorise the Authorities constituted under the
Legal Services Authorities Act, 1987 (39 of 1987) , for the purposes of pre -institution mediation.
(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987, the Authority
authorised by the Central Government under sub -section ( 2) shall complete the process of mediation
within a period of three months from the date of application made by the plaintiff under sub -section ( 1):
Provided that the period of me diation may be extended for a further period of two months w ith the
consent of the parties:
Provided further that, the period during which the parties remained occupied with the pre -institution
mediation, such period shall not be computed for the purpose o f limitation under the Limitation Act, 1963
(36 of 1963) .
1. Ins. by Act 28 of 2018, s. 10 (w.e.f. 3 -5-2018).
2. The word and omitted by s. 10, ibid., (w.e.f. 3 -5-2018).
3. Clause ( e) omitted by s. 10, ibid., (w.e.f. 3 -5-2018).
4. Ins. by s. 11, ibid., (w.e.f. 3 -5-2018).
8 (4) If the parties to the commercial dispute arrive at a settlement, the same shall be reduced into
writing and shall be signed by the parties to the dispute and the mediator.
(5) The settlement a rrived at under this section shall have the same status and effect as if it is an
arbitral award on agreed terms under sub -section ( 4) of section 30 of the Arbitrat ion and Conciliation Act,
1996 (26 of 1996) .]
CHAPTER IV
APPEALS
13. Appeals from decrees of Commercial Courts and Commercial Divisions. (1) 1[Any person
aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal
to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgmen t or order of a Commercial Court at the level of District
Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court
may appeal to the Commercial Appellate Division of that High Court within a period of sixty d ays from
the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial
Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of
1908) as amended by this Act and section 37 of the Arbitration and C onciliation Act, 1996 (26 of 1996) .]
(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent
of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial
Court otherwise than in accordance with the provisions of this Act.
14. Expeditious disposal of appeals. The 2[Commercial Appellate Court and the Commercial
Appellate Division ] shall endeavour to dispose of appeals filed before it within a period of six months
from the date of filing of such appeal.
CHAPTER V
TRANSFER OF PENDING SUITS
15. Transfer of pending cases. (1) All suits and applications, including applications under the
Arbitration and Conciliation Act, 1996 (26 of 1996) , relating to a commercial dispute of a Specified
Value pending in a High Court where a Commercial Division has been constituted, shall be transfer red to
the Commercial Division.
(2) All suits and applica tions, including applications under the Arbitration and Conciliation Act, 1996
(26 of 1996) , relating to a commercial dispute of a Specified Value pending in any civil court in any
district or area in respect of which a Commercial Court has been constitute d, shall be transferred to such
Commercial Court:
Provided that no suit or application where the final judgment has been reserved by the Court prior to
the constitution of the Commercial Division or the Commercial Court shall be transferred either under
sub-section ( 1) or sub -section ( 2).
(3) Where any suit or application, including an application under the Arbitration and Conciliation
Act, 1996 (26 of 1996) , relating to a commercial dispute of Specified Value shall stand transferred to the
Commercial Division or Commercial Court under sub -section ( 1) or sub -section ( 2), the provisions of this
Act shall apply to those procedures that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as the case may be, may hold case management
hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such
further directions as may be necessary for a speedy and efficacious disposal of such suit or application in
accordance 3[with Orde r XV-A] of the Code of Civil Procedure, 1908 (5 of 1908) :
1. Subs. by Act 28 of 2018, s. 12, for sub -section ( 1) (w.e.f. 3-5-2018).
2. Subs. by s. 13, ibid., for Commercial Appellate Division (w.e.f. 3 -5-2018).
3. Subs. by s. 14, ibid., for with Order XIV -A (w.e.f. 3 -5-2018)
9 Provided that the proviso to sub -rule ( 1) of Rule 1 of Order V of the Code of Civil Procedure, 1908
(5 of 1908) shall not apply to such transferred suit or application and the court may, in its dis cretion,
prescribe a new time period within which the wr itten statement shall be filed.
(5) In the event that such suit or application is not transferred in the manner specified in
sub-section ( 1), sub -section ( 2) or sub -section ( 3), the Commercial Appellate Division of the High Court
may, on the application of any of the parties to the suit, withdraw such suit or application from the court
before which it is pending and transfer the same for trial or disposal to the Commercial Division o r
Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of
transfer shall be final and binding.
CHAPTER VI
AMENDMENTS TO THE PROVISIONS OF TH E CODE OF CIVIL PROCEDURE , 1908
16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial
disputes.(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application
to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manne r as
specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil
Procedure, 1908 (5 of 1908) , as amended by this Act, in the trial of a suit in respect of a commercial
dispute of a Specified Value.
(3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code
of Civil Procedure, 1908 (5 of 1908) , by the State Government is in conflict with the provisions of the
Code of Civil Procedure, 1908 (5 of 1908) , as amended by this Act, the provisions of the Code of Civil
Procedure as amended by this Act shall prevail.
CHAPTER VII
MISCELLANEOUS
17. Collection and disclosure of data by 1[Commercial Courts, Commercial Appellate Court s],
Commercial Divisions and Commercial Appellate Divisions. The statistical data regarding the
number of suits, applications, appeals or writ petitions filed before the 1[Commercial Cour ts, Commercial
Appellate Courts] , Commercial Division, or Commercial Appellate Division, as the case may be, the
pendency of such cases, the status of each case, and the number of cases disposed of, shall be maintained
and updated every month by each 1[Commercial Cour ts, Commercial Appellate Courts] , Commercial
Division, Commercial Appellate Division and shall be published on the webs ite of the relevant High
Court.
18. Power of High Court to issue directions. The High Court may, by notification, issue practice
directions to supplement the provisions of Chapter II of this Act or the Code of Civil Procedure, 1908 (5
of 1908) insofar as such provisions apply to the hearing of commercial disputes of a Specified Value.
19. Infrastructure facilities. The State Government shall provide necessary infrastructure to
facilitate the working of a Commercial Court or a Comme rcial Division of a High Court.
20. Training and continuous education. The State Government may, in consultation with the
High Court, establish necessary facilities providing for training of Judges who may be appointed to the
2[Commercial Cour ts, Commercial Appellate Courts] , Commercial Division or the Commercial Appe llate
Division in a High Court.
21. Act to have overriding effect. Save as otherwise provided, the provisions of this Act shall have
effect, notwithstanding anything inconsistent therewith conta ined in any other law for the time being in
force or in any instrument having effect by virtue of any law for the time bein g in force other than this
Act.
1. Subs. by Act 28 of 2018, s. 15, for Commercial Court and Commercial Courts (w.e.f. 3-5-2018).
2. Subs. by s. 16, ibid., for Commercial Court (w.e.f. 3 -5-2018).
10 1[21A. Power of Central Government to make rules. (1) The Central Government may, by
notification, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for or any of the following matters, namely:
(a) the manner and procedure of pre -institution mediation under sub -section ( 1) of section 12A;
(b) any other matter which is required to be, or may be, prescribed or in respect of which
provision is to be made by rules made by the Central Government.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after
it is made, before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session, or in two or mo re successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule, or both Houses agree that the rule should not be made, the ru le shall
thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity of anything p reviously done
under that rule.]
22. Power to re move difficulties. (1) If any difficulty arises in giving effect to the provisions of
this Act, the Central Government may, by order published in the Official Gazette, make such provisions,
not inconsistent with the provisions of this Act as may appear to it to be necessary or expedie nt for
removing the difficulty:
Provided that no such order shall be made under this section after the expiry of a period of two years
from the da te of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be, after it is made, b efore each
House of Parliament.
23. Repeal and savings.(1) The Commercial Courts, Commercial Division and Commercial
|
.
23. Repeal and savings.(1) The Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Ordinance, 2015 (Ord. 8 of 2015) is hereby repealed.
(2) Not withstanding such repeal, anything done or any action taken under the said Ordinance, shall be
deemed to have been done or taken under the corresponding provisions of this Act.
1. Ins. by Act 28 of 2018, s. 17 (w.e.f. 3 -5-2018).
11 SCHEDULE
(See section 16)
1. Amendment of section 26. In section 26 of the Code of Civil Procedure, 1908 (5 of 1908)
(hereafter referred to as the Code), in sub -section ( 2), the following provi so shall be inserted, namely:
Provided that such an affidavit shall be in the form and manner as prescribed under Order VI of
Rule 15A ..
2. Substitution of new section for section 35. For section 35 of the Code, the following section
shall be substituted, namely:
35. Costs.(1) In relation to any commercial dispute, the Court, notwithstanding anything
contained in any other law for the time being in force or Rule, h as the discretion to determine:
(a) whether costs are p ayable by one party to another;
(b) the quantum of those costs; and
(c) when they are to be paid.
Explanation .For the purpose of clause ( a), the expression costs shall mea n reasonable costs
relating to
(i) the fees and expe nses of the witnesses incurred;
(ii) legal fees and expenses incurred;
(iii) any other expenses incurred in connec tion with the proceedings.
(2) If the Court decides to make an order for payment of costs, the general rule is that the
unsuccessful party shall be ordered to pay the costs of the successful party:
Provided that the Cou rt may make an order deviating from the general rule for rea sons to be
recorded in writing.
Illustration
The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages. The Court
holds that the Plaintiff is entitled to the money decre e. However, it returns a finding that the claim for
damages is frivolous and vexatious.
In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the
successful party, for having raised frivolous claims for damages.
(3) In making an order for the payment of costs, the Court shall have regard to the foll owing
circumstances, including
(a) the conduct of the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly
successful;
(c) whether the party had made a frivolous counterclaim leading to delay in the disposal of
the case;
(d) whether any reasonable offer to settle is made by a party and unreasonably refused by the
other party; and
(e) whether the party had made a frivolous c laim and instituted a vexatious proceeding
wasting the time of the Court.
(4) The orders which the Court may make under this provision include an order that a party must
pay
(a) a proportion of another partys costs;
12 (b) a stated amount in respect of another partys costs;
(c) costs from or until a certain date;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating to a distinct par t of the proceedings; and
(g) interest on costs from or until a certain date..
3. Amendment of section 35A .In section 35A of the Code, su b-section ( 2) shall be omitted.
4. Amendment of First Schedule. In the First Schedule to the Code,
(A) in the Order V, in Rule 1, in sub -rule ( 1), for the second proviso, the following proviso shall
be substituted, namely:
Provided further that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement on such other day, as may
be specified by the Court, for reasons to be recorded in writing and on payment of such costs as
the Court deems fit, but which shall not be later than one hundred twenty days from the date of
service of summons and on expiry of one hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file the written statement and the Court shall not
allow the written statement to be taken on record.;
(B) in Order VI,
(i) after Rule 3, the following Rule shall be inse rted, namely:
3A. Forms of pleading in Commercial Courts In a commercial dispute, where forms of
pleadings have been prescribed under the High Court Rules or Practice Directions made for
the purposes of such commercial disputes, pleadings shall be in s uch forms.;
(ii) after Rule 15, the following Ru le shall be inserted, namely:
15A. Verification of plea dings in a commercial dispute.
(1) Notwithstanding anything contained in Rule 15, every pleading in a commercial
dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to
this Schedule.
(2) An affidavit under sub -rule ( 1) above shall be signed by the party or by one of the
parties to the proceedings, or by any other person on behalf of such party or parties who is
proved to the satisfaction of the Court to be acquainted with the facts of the case and who is
duly authorised by such party or parties.
(3) Where a pleading is amended, the amendments must be verified in the form and
manner referred to in sub -rule ( 1) unless the Court orders otherwise.
(4) Where a pleading is not verified in the manner provided under sub -rule ( 1), the party
shall not be permitted to rely on such pleading as evidence or any of the matters set out
therein.
(5) The Court may strike out a p leading which is not verified by a Statement of Truth,
namely, the affidavit set out in the Appendix to this Schedule.;
(C) in Order VII, after Rule 2, the following R ule shall be inserted, namely:
2A. Where interest is sought in the suit,
(1) Where the plaintiff seeks interest, the plaint shall contain a statement to that effect
along with the details set out under sub -rules ( 2) and ( 3).
13 (2) Where the plaintiff seeks interest, the plaint shall state whether the plaintiff is seeking
interest in relati on to a commercial transaction within the meaning of section 34 of the Code
of Civil Procedure, 1908 (5 of 1908) and, furthermore, if the plaintiff is doing so under the
terms of a contract or under an Act, in which case the Act is to be specified in the p laint; or
on some other basis and shall state the basis of that.
(3) Pleadings shall also state
(a) the rate at which interest is claimed;
(b) the date from which it is claimed;
(c) the date to which it is calculated;
(d) the total amount of interest clai med to the date of calculation; and
(e) the daily rate at which interest accrues after that date.;
(D) in Order VIII,
(i) in Rule 1, for the proviso, the following proviso shall be substituted, namely:
Provided that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement on such other day, as
may be specified by the Court, for reasons to be recorded in writing and on payment of such
costs as the Court deems fit, b ut which shall not be later than one hundred twenty days from
the date of service of summons and on expiry of one hundred twenty days from the date of
service of summons, the defendant shall forfeit the right to file the written statement and the
Court sha ll not allow the written sta tement to be taken on record.;
(ii) after Rule 3, the following Rule shall be inserte d, namely:
3A. Denial by the defendant in suits before the Commercial Division of the High Court
or the Commercial Court
(1) Denial shall be in the manner provided in sub -rules (2), (3), (4) and (5) of this
Rule.
(2) The defendant in his written statement shall state which of the allegations in the
particulars of plaint he denies, which allegations he is unable to admit or deny, but which
he requires the plaintiff to prove, a nd which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his
reasons for doing so and if he intends to put forward a different version of events from
that given by th e plaintiff, he must state his own version.
(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for
doing so, and if he is able, give his own statement as to which Court ought to have
jurisdiction.
(5) If the defendant dis putes the plaintiffs valuation of the suit, he must state his
reasons for doing so, and if he is able, give his own statement of the value of the suit.;
(iii) in Rule 5, in sub -rule ( 1), after the first proviso, the following proviso shall be inserted,
namely:
Provided further that every allegation of fact in the plaint, if not denied in the manner
provided under Rule 3A of this Order, shall be taken to be admitted except as agai nst a
person under disability. ;
(iv) in Rule 10, 1***, the following pr oviso shall be inserted, namely:
1. The words after the first proviso omitted by Act 28 of 2018, s. 18 (w.e.f. 3 -5-2018).
14 1[Provided that ] no Court shall make an order to extend the time provided under Rule 1
of this Order for fil ing of the written statement.;
(E) for Order XI of the Code, the following Order shall be substituted, namely:
ORDER XI
DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION
OF A HIGH COURT OR A COMMERCIAL COURT
1. Disclosure and discovery of documents. (1) Plaintiff shall file a list of all documents and
photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along
with the plaint, including:
(a) documents referred to and relied on by the plaintiff in the plaint;
(b) documents relating to any matter in question in the proceedings, in the power, possession,
control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same
is in support of or adverse to the plaintiffs case;
(c) nothing in this Rule shall apply to documents produced by plainti ffs and relevant only
(i) for the cross -examination of the defendants witnesses, or
(ii) in answer to any case set up by the defendant subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(2) The list of documents filed with the plaint shall specify whether the documents in the power,
possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall
also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of
custody of each document.
(3) The plaint shall contain a declaration on oath from the plaintiff that all documents in the power,
possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings
initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does
not have any other documents in its power, possession, control or custody.
Explanation .A declaration on oath un der this sub -rule shall be contained in the Statement of Tr uth
as set out in the Appendix.
(4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of
the above declaration on oath and subject to grant of such le ave by Court, the plaintiff shall file such
additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that
the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the
facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have
any other documents, in its power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on documents, which were in the pl aintiffs power,
possession, control or custody and not disclosed along with plaint or within the extended period set out
above, save and except by leave of Court and such leave shall be granted only upon the plaintiff
establishing reasonable cause for non disclosure along with the plaint.
(6) The plaint shall set out details of documents, which the plaintiff believes to be in the power,
possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave
for production thereof by the said defendant.
(7) The defendant shall file a list of all documents and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, along with the written statement or with its
counterclaim if any, i ncluding
(a) the documents referred to and relied on by the defe ndant in the written statement;
1. Subs. by Act 28 of 2018, s. 18, for Provided further that (w.e.f. 3 -5-2018).
15 (b) the documents relating to any matter in question in the proceeding in the power, possession,
control or custody of the defendant, irrespective of whether t he same is in support of or adve rse to the
defendants defence;
(c) nothing in this Rule shall apply to documents produced by the defendants and relevant only
(i) for the cross -examination of the plaintiffs witnesses,
(ii) in answer to any case set up b y the plaintiff subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(8) The list of documents filed with the written statement or counterclaim shall specify whether the
documents, in the power, possession , control or custody of the defendant, are originals, office copies or
photocopies and the list shall also set out in brief, details of parties to each document being produced by
the defendant, mode of execution, issuance or receipt and line of custody of each document.
(9) The written statement or counterclaim shall contain a declaration on oath made by the deponent
that all documents in the power, possession, control or |
The written statement or counterclaim shall contain a declaration on oath made by the deponent
that all documents in the power, possession, control or custody of the defendant, save and except for those
set out in sub -rule ( 7) (c) (iii) pertaining to the facts and circumstances of the proceedings initiated by the
plaintiff or in the counterclaim, have been disclosed and copies thereof annexed with the written
statement or counterclaim and that the defendant does not have in its power, pos session, control or
custody, any other documents.
(10) Save and except for sub -rule ( 7) (c) (iii), defendant shall not be allowed to rely on documents,
which were in the defendants power, possession, control or custody and not disclosed along with the
written statement or counterclaim, save and except by leave of Court and such leave shall be granted only
upon the defendant establishing reasonable cause for non -disclosure along with the wri tten statement or
counterclaim.
(11) The written statement or counterclaim shall set out details of documents in the power,
possession, control or custody of the plaintiff, which the defendant wishes to rely upon and which have
not been disclosed with the plaint, and call upon the plaintiff to produce the same.
(12) Duty to disclose documents, which have come to the notice of a party, shall cont inue till disposal
of the suit.
2. Discovery by interrogatories. (1) In any suit the plaintiff or defendant by leave of the court may
deliver interrogatories in writing for the examination of the opposite parties or any one or more of such
parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such
interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same party without an
order for that purpose:
Provided further that interrogatories which do not relate to any matters in question in the suit shall be
deemed irrelevant, notwithstanding that they m ight be admissible on the oral cross -examination of a
witness.
(2) On an application for leave to deliver interrogatories, the particular interrogatories proposed to be
delivered shall be submitted to the court, and that court shall decide within seven day s from the day of
filing of the said application, in deciding upon such application, the court shall take into account any
offer, which may be made by the party sought to be interrogated to deliver particulars, or to make
admissions, or to produce document s relating to the matters in question, or any of them, and leave shall be
given as to such only of the interrogatories submitted as the court shall consider necessary either for
disposing fairly o f the suit or for saving costs.
(3) In adjusting the costs o f the suit inquiry shall at the instance of any party be made into the
propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court,
either with or without an application for inquiry, that such interrogatorie s have been exhibited
unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the
answers thereto shall be paid in any event by the party in fault.
16 (4) Interrogatories shall be in the form provided in Form No. 2 in Appendix C to the Code of Civil
Procedure, 1908 (5 of 1908) , with such variations as circumstances may require.
(5) Where any party to a suit is a corporation or a body of persons, whether incorporated or not,
empowered by law to sue or be sued, whet her in its own name or in the name of any officer of other
person, any opposite party may apply for an order allowing him to deliver interrogatories to any member
or officer of such corporation or body, and an order may be made accordingly.
(6) Any objecti on to answering any interrogatory on the ground that it is scandalous or irrelevant or
not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently
material at that stage, or on the ground of privilege or any other ground may be taken in the affidavit in
answer.
(7) Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or
vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous and
any application for this purpose may be made within seven days after service of the interrogatories.
(8) Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time
as the court may allow.
(9) An affidavit in a nswer to interrogatories shall be in the form provided in Form No. 3 in Appendix
C to the Code of Civil Procedure, 1908 (5 of 1908) , with such variations as circumstances may require.
(10) No exceptions shall be taken to any affidavit in answer, but the su fficiency or otherwise of any
such affidavit objected to as insufficient shall be determined by the court.
(11) Where any person interrogated omits to answer, or answers insufficiently, the party interrogating
may apply to the court for an order requiring him to answer, or to answer further, as the case may be, and
an order may be made requiring him to answer, or to answer further, either affidavit or by viva voce
examination, as the court may direct.
3. Inspection. (1) All parties shall complete inspection of all documents disclosed within thirty
days of the date of filing of the written statement or written statement to the counterclaim, whichever is
later. The Court may extend this time limit upon application at its discretion, but not beyond thirty days in
any event.
(2) Any party to the proceedings may seek directions from the Court, at any stage of the proceedings,
for inspection or production of documents by the other party, of which inspection has been refused by
such party or documents have not been produced despite issuance of a notice to produce.
(3) Order in such application shall be disposed of within thirty days of filing such application,
including filing replies and rejoinders (if permitted b y Court) and hearing.
(4) If the above application is allowed, inspection and copies thereof shall be furnished to the party
seeking it, within five days of such order.
(5) No party shall be permitted to rely on a document, which it had failed to disclose or of which
inspection has not been given, save and e xcept with leave of Court.
(6) The Court may impose exemplary costs against a defaulting party, who wilfully or negligently
failed to disclose all documents pertaining to a suit or essential for a decision therein and which are in
their power, possession, control or custody or where a Court holds that inspection or copies of any
documents had been wrongfully or unreasonably withheld or refused.
4. Admission and denial of documents. (1) Each party shall submit a statement of admissions or
denials of all docu ments disclosed and of which inspection has been completed, within fifteen days of the
completion of inspection or any later date as fixed by the Court.
(2) The statement of admissions and denials shall set out explicitly, whether such pa rty was admitting
or denying:
(a) correctness of contents of a document;
(b) existence of a document;
17 (c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation .A statement of admission or denial of the existence of a document made in accordance
with sub -rule ( 2) (b) shall include the admission or denial of the contents of a document.
(3) Each party shall set out reasons for denying a document under any of the above grounds and bare
and unsupported denials shall not be deemed to be denials of a document and proof of such documents
may then be dispensed with at the discretion of the Court.
(4) Any party may however submit bare denials for third party documents of which the party denying
does not have any personal knowledge of, and to which the party denying is not a party to in any manner
whatsoever.
(5) An Affidavit in support of the state ment of admissions and denials shall be filed confirming the
correctness of the contents of the statement.
(6) In the event that the Court holds that any party has unduly refused to admit a document under any
of the above criteria, costs (including exempla ry costs) for deciding on admissibility of a document may
be imposed by the Court on such party.
(7) The Court may pass orders with respect to admitted documents including for waiver of further
proof thereon or rejection of any documents.
5. Production of documents. (1) Any party to a proceeding may seek or the Court may order, at
any time during the pendency of any suit, production by any party or person, of such documents in the
possession or power of such party or person, relating to any matter in questi on in such suit.
(2) Notice to produce such document shall be issued in the Form provided in Form No. 7 in Appendix
C to the Code of Civil Procedure, 1908 (5 of 1908) .
(3) Any party or person to whom such notice to produce is issued shall be given not less than seven
days and not more than fifteen days to produce such document or to answer to their inability to produce
such document.
(4) The Court may draw an adverse inference against a party refusing to produce such document after
issuance of a notice to p roduce and where sufficient reasons for such non production are not given and
order costs.
6. Electronic records. (1) In case of disclosures and inspection of Electronic Records (as defined in
the Information Technology Act, 2000 (21 of 2000) ), furnishing of printouts shall be sufficient
comp liance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video
content), copies of electronic records may be furnished in electronic form either in ad dition to or in lieu of
printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by
a party shall specify
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was p roduced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic
record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, detail s of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers
or cloud), details of ownership, custody and access to such data on the computer or computer
resource;
18 (g) deponents knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such
document or data was functioning properly or in case of malfunction that such malfunction did not
affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be
require d to give inspection of electronic records, provided a declaration is made by such party that each
such copy, which has been produced, has been made from the original electronic record.
(5) The Court may give directions for admissibility of Electronic Reco rds at any stage of the
proceedings.
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for
submission of further proof of any electronic record including metadata or logs before admis sion of such
electronic r ecord.
7. Certain provisions of the Code of Civil Procedure, 1908 not to apply .For avoidance of doubt,
it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of
Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the Commercial Divisions
of Hig h Court or Commercial Courts..
5. Insertion of new Order XIII -A.After Order XIII of the Code, the following Or der shall be
inserted, namely:
ORDER XIII -A
SUMMARY JUDGMENT
1. Scope of and c lasses of suits to which this Order applies. (1) This Order sets out the procedure
by which Courts may decide a claim pertaining to any Commercial Dispute w ithout recording oral
evidence.
(2) For the purposes of this Order, the word claim shall include
(a) part of a claim;
(b) any particular question on which the claim (whether in whole or in part) depends; or
(c) a counterclaim, as the case may be.
(3) Notwithstanding anything to the contrary, an application for summary judgment under this Order
shall not be made in a suit in respect of any Commercial Dispute that is originally filed as a summary suit
under O rder XXXVII.
2. Stage for ap plication for summary judgment. An applicant may apply for summary judgment
at any time after summons has been served o n the defendant:
Provided that, no application for summary judgment may be made by such applicant after the Court
has framed the issues in respect of the suit.
3. Grounds for summary judgment. The Court may give a summary judgment against a plaintiff
or de fendant on a claim if it considers that
(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real
prospect of successfully defending the claim, as the case may be; and
(b) there is no other compelling reason why the c laim should not be disposed of bef ore recording
of oral evidence.
4. Procedure. (1) An application for summary judgment to a Court shall, in addition to any other
matters the applicant may deem relevant, include the matters set forth in sub -clauses ( a) to (f) mentioned
hereunder:
19 (a) the application must contain a statement that it is an application for summary judgment made
under this Order;
(b) the application must precisely disclose all material facts and identify the point of law, if any;
(c) in the ev ent the applicant seeks to rely upon any documentary evidence, the applicant must,
(i) include such documentary evidence in its application, and
(ii) identify the relevant content of such documentary evidence on which the applicant relies;
(d) the applic ation must state the reason why there are no real prospects of succeeding on the
claim or defending the claim, as the case may be;
(e) the application must state what relief the applicant is seeking and briefly state the grounds for
seeking such relief.
(2) Where a hearing for summary judgment is fixed, the respondent must be given at least thirty days
notice of:
(a) the date fixed for the hearing; and
(b) the claim that is proposed to be decide d by the Court at such hearing.
(3) The respondent may, withi n thirty days of the receipt of notice of application of summary
judgment or notice of hearing (whichever is earlier), file a reply addressing the matters set forth in clauses
(a) to ( f) mentioned hereunder in addition to any other matters that the respond ent may deem relevant:
( |
uses
(a) to ( f) mentioned hereunder in addition to any other matters that the respond ent may deem relevant:
(a) the reply must precisely
(i) disclose all material facts;
(ii) identif y the point of law, if any; and
(iii) state the reasons why the relief sought by the applicant should not be granted;
(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the
respondent must
(i) include such documentary evidence in its reply; and
(ii) identify the relevant content of such documentary evidence on which the respondent
relies;
(c) the reply must state the re ason why there are real prospects of succeeding on the claim or
defending the claim, as the case may be;
(d) the reply must concisely state the issues that should be framed for trial;
(e) the reply must identify what further evidence shall be brought on re cord at trial that could not
be brought on record at the stage of summary judgment; and
(f) the reply must state why, in light of the evidence or material on record if any, the Court should
not proceed to summary judgment.
5. Evidence for hearing of summary judgment. (1) Notwithstanding anything in this Order, if the
respondent in an application for summary judgment wishes to rely on additional documentary evidence
during the hearing, the respondent must:
(a) file such documentary evidence; and
(b) serve copies of such documentary evidence on every other party to the application at least
fifteen days prior to the date of the hearing.
(2) Notwithstanding anything in this Order, if the applicant for summary judgment wishes to rely on
documentary eviden ce in reply to the defendants documentary evidence, the applicant must:
(a) file such doc umentary evidence in reply; and
20 (b) serve a copy of such documentary evidence on the respondent at least five days pr ior to the
date of the hearing.
(3) Notwithstand ing anything to the contrary, sub -rules ( 1) and ( 2) shall not require documentary
evidence to be:
(a) filed if such documentary evidence has already been filed; or
(b) served on a party on whom it has already been served.
6. Orders that ma y be made by Cou rt.(1) On an application made under this Order, the Court
may make such orders that it may deem fit in its discr etion including the following:
(a) judgment on the claim;
(b) conditional order in accordance with Rule 7 mentioned hereunder;
(c) dismissing the application;
(d) dismissing part of the claim and a judgment on part of t he claim that is not dismissed;
(e) striking out the pleadings (whether in whole or in part); or
(f) further directions to proceed for ca se management under Order XV -A.
(2) Where the Court makes any of the orders as set forth in sub -rule ( 1) (a) to ( f), the Court shall
record its reasons for making such order.
7. Conditional order. (1) Where it appears to the Court that it is possible that a claim or defence
may succeed but it is i mprobable that it shall do so, the Court may make a conditional order as set forth in
Rule 6 ( 1) (b).
(2) Where the Court makes a conditional order, it may:
(a) make it subject to all or an y of the following conditions:
(i) require a party to deposit a s um of money in the Court;
(ii) require a party to take a specified step in relation to the claim or defence, as the case may
be;
(iii) require a party, as the case may be, to give such security or provide such surety for
restitution of costs as the Court d eems fit and proper;
(iv) impose such other conditions, including providing security for restitution of losses that
any party is likely to suffer during the pendency of the suit, as the Court may deem fit in its
discretion; and
(b) specify the consequences of the failure to comply with the conditional order, including
passing a judgment against the party that have not compl ied with the conditional order.
8. Power to impose costs. The Court may make an order for payment of costs in an application for
summary judgment in accordance with the provisions of sections 35 and 35A of the Code..
6. Omission of Order XV .Order XV of the Code shall be omitted.
7. Insertion of Order XV -A.7. After Order XV of the Code, the following Or der shall be inserted,
namely:
ORDER XV A
CASE MANAGEMENT HEARING
1. First Case Management Hearing. The Court shall hold the first Case Management Hearing, not
later than four weeks from the date of filing of affidavit of admission or denial of docume nts by all parties
to the suit.
21 2. Orders to be passe d in a Case Management Hearing. In a Case Management Hearing, after
hearing the parties, and once it finds that there are issues of fact and law which require to be tried, the
Court may pass an order
(a) framing the issues between the parties in accordance with Order XIV of th e Code of Civil
Procedure, 1908 (5 of 1908) after examining pleadings, documents and documents produced before it,
and on examination cond ucted by the Court under Rule 2 of Order X, if required;
(b) listing witnesses to be examined by the parties;
(c) fixing the date by which affidavit of e vidence to be filed by parties;
(d) fixing the date on which evidence of the witnesses of the parties t o be recorded;
(e) fixing the date by which written arguments are to be filed b efore the Court by the parties;
(f) fixing the date on which oral arguments are to be heard by the Court; and
(g) setting time limits for parties and their advoc ates to address oral arguments.
3. Time limit for the completion of a trial. In fixing dates or setting time limits for the purposes of
Rule 2 of this Order, the Court shall ensure that the arguments are closed not later than six months from
the date of the first Case Man agement Hearing.
4. Recording of oral evidence on a day -today basis. The Court shall, as far as possible, ensure
that the recording of evidence shall be carried on, on a day -to-day basis until the cross -examination of all
the witnesses is complete.
5. Case Mana gement Hearings during a trial. The Court may, if necessary, also hold Case
Management Hearings anytime during the trial to issue appropriate orders so as to ensure adherence by
the parties to the dates fixed under Rule 2 and facilitate speedy disposa l of the suit.
6. Powers of the Court in a Case Management Hearing. (1) In any Case Management Hearing
held under this Order, the Court shall have the power to
(a) prior to the framing of issues, hear and decide any pending application filed by the partie s
under Order XIII -A;
(b) direct parties to file compilations of documents or pleadings relevant an d necessary for
framing issues;
(c) extend or shorten the time for compliance with any practice, direction or Court order if it fi nds
sufficient reason to do so;
(d) adjourn or bring forward a hearing if it finds sufficient reason to do so;
(e) direct a party to attend the Court for the purposes of exami nation under Rule 2 of Order X;
(f) consolidate proceedings;
(g) strike off the name of any witness or evidence that it deems irrelevant to the issues framed;
(h) direct a separate trial of any issue;
(i) decide the order in which issues are to be tried;
(j) exclude an issue from consideration;
(k) dismiss or give judgment on a claim after a decision on a preliminary issue;
(l) direct that evidence be recorded by a Commission where necessary in accordance with Order
XXVI;
(m) reject any affidavit of evidence filed by the parties for containing irrelevant, inadmissible or
argumentative material;
(n) strike o ff any parts of the affidavit of evidence filed by the parties containing irrelevant,
inadmissible or argumentative material;
22 (o) delegate the recording of evidence to such authority appointed by the Court for this pu rpose;
(p) pass any order relating to t he monitoring of recording the evidence by a commission or any
other authority;
(q) order any party to file and exchange a costs budget;
(r) issue directions or pass any order for the purpose of managing the case and furthering the
overriding objective of ensuring the efficient disposal of the suit.
(2) When the Court passes an order in exercise of its powers under this Order, it may
(a) make it subject to conditions, including a condition to pay a sum of money into Court; and
(b) specify the consequence o f failure to comply with the order or a condition.
(3) While fixing the date for a Case Management Hearing, the Court may direct that the parties also
be present for such Case Management Hearing, if it is of the view that there is a possibility of settleme nt
between the parties.
7. Adjournm ent of Case Management Hearing. (1) The Court shall not adjourn the Case
Management Hearing for the sole reason that the advocate appearing on be half of a party is not present:
Provided that an adjournment of the hearing is sought in advance by moving an application, the Court
may adjourn the hearing to another date upon the payment of such costs as the Court deems fit, by the
party moving such application.
(2) Notwithstanding anything contained in this Rule, if the Court is satisfied that there is a justified
reason for the absence of the advocate, it may adjourn the hearing to another date upon such ter ms and
conditions it deems fit.
8. Consequence s of non -compliance with orders. Where any party fails to comply with the order
of the Court passed in a Case Management Hearing, the Court shall have the power to
(a) condone such non -compliance by payment of costs to the Court;
(b) foreclose the non -compliant partys right to file affidavits, conduct cross -examination of
witnesses, file written submissions, address oral arguments or make further arguments in the trial, as
the case may be, or
(c) dismiss the plaint or allow the suit where such non -compliance is wilful, repeated and the
imposition of costs is not a dequate to ens ure compliance..
8. Amendment of Order XVIII. In Order XVIII of the Code, in Rule 2, for sub -rules ( 3A), (3B),
(3C), (3D), (3E) and ( 3F), the following shall be substituted, namely:
(3A) A party shall, within four weeks prior to commencing the oral arguments, submit concisely
and under distinct headings written arguments in support of his case to the Court and such written
arguments shall form part of the record.
(3B) The written arguments shall clearly indicate the provisions of the laws being cited in support
of the arguments and the citations of judgments being relied upon by the party and include copies of
such judgments being relied upon by the party.
(3C) A copy of such written arguments shall be furnished simultaneously to the opposite party.
(3D) The Court may, if it deems fit, after the conclusion of arguments, permit the parties to file
revised written arguments within a period of not more than one week after the date of conclusion of
arguments.
(3E) No adjournment shall be granted for the pu rpose of filing the written arguments unless the
Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3F) It shall be open for the Court to limit the time for oral submissions having regard to the
nature and comp lexity of the matter..
23 9. Amendment of Order XVIII. In Order XVIII of the Code, in Rule 4, after sub -rule ( 1), the
following sub -rules shall be inserted, namely:
(1A) The affidavits of evidence of all witnesses whose evidence is proposed to be led by a party
shall be filed simultaneously by that party at the time directed in the first Case Management Hearing.
(1B) A party shall not lead additional evidence by the affidavit of any witness (including of a
witness who has already filed an affidavit) unles s sufficient cause is made out in an application for
that purpose and an order, giving reasons, permitting such additional affidavit is passed by the Court.
(1C) A party shall however have the right to withdraw any of the affidavits so filed at any time
prior to commencement of cross -examination of that witness, without any adverse inference being
drawn b ased on such withdrawal:
Provided that any other party shall be entitled to tender as evidence and rely upon any admission
made in such withdrawn affidavit ..
10. Amendment to Order XIX. In Order XIX of the Code, after Rule 3, the following Rul es shall
be inserted, namely:
4. Court may control evidence. (1) The Court may, by directions, regulate the evidence as to
issues on which it requires evidence and the manner in which such evidence may be placed before the
Court.
(2) The Court may, in its discretion and for reasons to be recorded in writing, exclude evidence
that would otherwise be produced by the parties..
5. Redacting or rejecting evidence. A Cour t may, in its discretion, for reasons to be recorded
in writing
(i) redact or order the redaction of such portions of the affidavit of examination -in-chief as do
not, in its view, constitute evidence; or
(ii) return or reject an affidavit of examination -in-chief as not constituting admissible
evidence.
6. Format and guidelines of affidavit of evidence. An affidavit must comply with the form
and requirements set forth below:
(a) such affidavit should be confined to, and should follow the chronological seq uence of, the
dates and events that are relevant for proving any fact or any other matter dealt with;
(b) where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or
contains the legal grounds of any partys case, the Court may, by order, strike out the affidavit or
such parts of the affidavit, as it deems fit and proper;
(c) each paragraph of an affidavit should, as far as possible, be confined to a distinct portion
of the subject;
(d) an affidavit shall state
(i) which of the statements in it are made from the deponents own knowledge and which
are matter s of information or belief; and
(ii) the source for any matters of information or b elief;
(e) an affidavit should
(i) have the pages numbered consecutively as a separate document (or as one of several
documents contained in a file);
(ii) be divided into numbered paragraphs;
(iii) have all numbers, including dates, expressed in figures; and
24 (iv) if any of the documents r eferred to in the body of the affidavit are annexed to the
affidavit or any other pleadings, give the annexures and page numbers of such do cuments that
are relied upon..
11. Amendment of Order XX. In Order XX of the Code, for Rule 1, the following Rule shall be
substituted, namely:
(1) The 1[Commercial Co urt, Commercial Appellate Court] , Commercial Division, or
Commercial Appellate |
1[Commercial Co urt, Commercial Appellate Court] , Commercial Division, or
Commercial Appellate Division, as the case may be, shall, within ninety days of the conclusion of
arguments, pronounce judgment and copies thereof shall be issued to all the parties to the dispute
through electronic mail or otherwise..
2[12. After Appendix H, the following Appendix shall be inserted, namely:
APPENDIX -I
STATEMENT OF TRUTH
(Under First Schedule, Order VI - Rule 15A and Orde r XI- Rule 3)
I ----- the deponent do hereby solemnly affirm and declare as under:
1. I am the party in the above suit and competent to swear this affidavit.
2. I am sufficiently conversant with the facts of the case and have also examined all relevant
documents and records in relation thereto.
3. I say that the statements made in -----paragraphs are true to my knowledge and statements
made in -----paragraphs are based on information received which I believe to be correct and
statements made in ---paragr aphs are based on legal advice.
4. I say that there is no false statement or concealment of any material fact, document or record
and I have included information that is according to me, relevant for the present suit.
5. I say that all documents in my po wer, possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by me have been disclosed and copies thereof annexed
with the plaint, and that I do not have any other documents in my power, possession, control or
custody.
6. I say that the above -mentioned pleading comprises of a total of ---- pages, each of which has
been duly signed by me.
7. I state that the Annexures hereto are true copies of the documents referred to and relied upon
by me.
8. I say that I a m aware that for any false statement or concealment, I shall be liable for action
taken against me under the law for the time being in force.
Place:
Date:
DEPONENT
VERIFICATION
I, . do hereby declare that the statements made above are true to my
knowledge.
Verified at [place] on this [date]
DEPONENT.. ]
1. Subs. by Act 28 of 2018, s. 18, for Commercial Court (w.e.f. 3 -5-2018).
2. Ins. by s. 18, ibid., (w.e.f. 23 -10-2015). |
THE INDIAN SUCCESSION ACT, 1925
ACT NO. 39 OF 19251
[30th September , 1925 .]
An Act to consolidate the law applicable to intestate and testamentary succession 2***.
WHEREAS it is expedient to consolidate the law applicable to intestate and testamentary
succession 2***. It is hereby enacted as follows:
PART I
PRELIMINARY
1. Short title .This Act may be called the Indian Succession Act, 1925.
2. Definitions .In this Act, unless there is anything repug nant in the subject or context,
(a) administrator means a person appointed by competent authority to administer the estate of a
deceased person when there is no executor;
(b) codicil means an instrument made in relation to a Will, and explaining, altering or adding to
its dispositions, and shall be deemed to form part of the Will;
3[(bb) District Judge means the Judge of a Principal Civil Court of original jurisdiction;]
(c) executor means a person to whom the execution of the last Will of a deceased person is, by
the testator's appointment, confided;
4[(cc) India means the territory of India excluding the State of Jammu and Kashmir;]
(d) Indian Christian means a native of India who is, or in good faith claims to be, of unmixed
Asiatic descent and who professes any form of the Christian religion;
(e) minor means any person subject to the Indian Majority Act, 1875 (9 of 1875) who has not
attained his majo rity within the meaning of that Act, and any other person who has not completed the
age of eighteen years; and minority means the status of any such person;
(f) probate means the copy of a will certified under the seal of a court of competent jurisdict ion
with a grant of administration to the estate of the testator;
5[(g) State includes any division of India having a court of the last resort;] and
(h) will means the legal declaration of the intention of a testator with respect to his property
which he desires to be carried into effect after his death.
3. Power of State Government to exempt any race, sect or tribe in the State from operation of
Act.(1) The State Government may, by notification in the Official Gazette, either retrospectively from
the sixteenth day of March, 1865, or prospectively, exempt from the operation of any of the following
provisions of this Act, namely, sections 5 to 49 , 58 to 191 , 212, 213 and 215 to 369, the members of any
race, sect or tribe in the State, or of any part of such race, sect or tribe, to whom the State Government
considers it impossible or inexpedient to apply such provisions or any of them mentioned in the order.
1. The Act has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941), to Manipur by the Union Territories (Laws)
Amendment Act, 1956 (68 of 1956) and to Dadra and Nagar Haveli (w.e.f. 1 -7-1965) by Reg. 6 of 1963, s. 2 and the First
Schedule.
2. The words in the Provinces of India omitted by the A.O. 1950.
3. Ins. by Act 18 of 1929, s. 2 (w.e.f. 1 -10-1929) .
4. Ins. by Act 3 of 1951, s. 3 and the Schedule (w.e.f. 1 -4-1951) .
5. Subs. by s. 3 and the Schedule, ibid., for clause ( g)(w.e.f. 1 -4-1951) .
16 (2) The State Government may, by a like notification, revoke any such order, but not so that the
revocation shall have retrospective effect.
(3) Persons exempted under this section or exempted from the operation of any of the provisions of
the Indian Succession Act, 18651 (10 of 18 65), under section 332 of that Act are in this Act referred to as
exem pted persons .
PART II
OF DOMICILE
4. Application of Part. This Part shall not apply if the deceased was a Hin du, Muhammadan,
Buddhist, Sikh or Jaina.
5. Law regulating succession to deceased person s immoveable and moveable property,
respectively. (1) Succession to the immoveable property in 2[India ], of a person deceased shall be
regulated by the law of 2[India ], wherever such person may have had his domicile at the time of his death.
(2) Succession to the moveable property of a person deceased is regula ted by the law of the country in
which such person had his domicile at the time of his death.
Illustrations
(i) A, having his domicile in 2[India ], dies in France, leaving moveable property in France, moveable property
in England, and property, both moveable and immoveable, in 2[India ]. The succession to the whole is regulated by
the law of 2[India ].
(ii) A, an Englishman, having his domicile in Fra nce, dies in 2[India ], and leaves property, both moveable and
immoveable, in 2[India ]. The succession to the moveable property is regulated by the rules which govern, in France,
the succession to the moveable property of an Englishman dying domiciled in Fr ance, and the succession to the
immoveable property is regulated by the law of 2[India ].
6. One domicile only affects succession to moveables. A person can have only one domicile for
the purpose of the succession to his moveable property.
7. Domicile of or igin of person of legitimate birth .The domicile of origin of every person of
legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a
posthumous child, in the country in which his father was domiciled a t the time of the father s death.
Illustration
At the time of the birth of A, his father was domiciled in England. A s domicile of origin kiln England,
whatever may be the country in which he was born.
8. Domicile of origin of illegitimate child. The domicile of origin of an illegitimate child is in the
country in which, at the time of his birth, his mother was domiciled.
9. Continuance of domicile of origin. The domicile of origin prevails until a new domicile has
been acquired.
10. Acquisition of new domicile. A man acquires a new domicile by taking up his fixed habitation
in a country which is not that of his domicile of origin.
Explanation .A man is not to be deemed to have taken up his fixed habitation in 2[India] merely by
reason of his residing t herein 3[the civil, military, naval or air force service of Government], or in the
exercise of any profession or calling.
1. Rep. by this Act.
2. Subs. by Act 3 of 1951, s. 3 and the Schedule for the States .
3. Subs. by the A.O. 1950, for His Majesty s civil, milit ary, naval or air force service .
17 Illustrations
(i) A, whose domicile of origin is in England, proceeds to 1[India], where he settles as a barrister or a merchant,
intending to reside there during the remainder of his life. His domicile is now in 1[India] .
(ii) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in
that service. A has acquired a domicile in Austria.
(iii) A, whose domicile of origin is in France, comes to reside in1[India] under an engagement with the Central
Government for a certain number of years. It is his intention to return to France at the end of that period. He does
not acquire a domicile in 1[India].
(iv) A, whose domicile is in England, goes to reside in 1[India] for the purpose of winding up the affairs of a
partnership which has been dissolved, and with the intention of returning to England as soon as that purpose is
accomplished. He does n ot by such residence acquire a domicile in 1[India], however, long the residence may last.
(v) A, having gone to reside in 1[India] in the circumstances mentioned in the last preceding illustration,
afterwards alters his intention, and takes up his fixed h abitation in 1[India]. A has acquired a domicile in 1[India].
(vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled by political events to take
refuge in Calcutta, and resides in Calcutta for many years in the hope of such polit ical changes as may enable him to
return with safety to Chandernagore. He does not by such residence acquire a domicile in 1[India] .
(vii) A, having come to Calcutta in the circumstances stated in the last preceding illustration, continues to reside
therea fter such political changes have occurred as would enable him to return with safety to Chandernagore, and he
intends that his residence in Calcutta shall be permanent. A, has acquired a domicile in 1[India] .
11. Special mode of acquiring domicile in India .Any person may acquire a domicile in 1[India] by
making and depositing in some office in 1[India] appointed in this behalf by the State Government, a
declaration in writing under his hand of his desire to acquire such domicile; provided that he has been
resident in 1[India] for one year immediately preceding the time of his making such declaration.
12. Domicile not acquired by residence as representative of foreign Government, or as part of
his family .A person who is appointed by the Government of one country to be its ambassador, consul
or other representative in another country does not acquire a domicile in the latter country by reason only
of residing there in pursuance of his appointment; nor does any other person acquire such domicile by
reason on ly of residing with such first -mentioned person as part of his family, or as a servant.
13. Continuance of new domicile .A new domicile continues until the former domicile has been
resumed or another has been acquired.
14. Minor s domicile .The domicile o f a minor follows the domicile of the parent from whom he
derived his domicile of origin.
Exception .The domicile of a minor does not change with that of his parent, if the minor is married,
or holds any office or employment in the service of Government, o r has set up, with the consent of the
parent, in any distinct business.
15. Domicile acquired by woman on marriage .By marriage a woman acquires the domicile of
her husband, if she had not the same domicile before.
16. Wife s domicile during marriage .A wi fes domicile during her marriage follows the domicile
of her husband.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule for the States.
18 Exception. Thewifes domcile no longer follows that of her husband if they are separated by the
sentence of a competent Court, or if the husband is undergoing a sentence of transportati on.
17. Minor s acquisition of new domicile. Save as hereinbefore otherwise provided in this Part, a
person cannot, during minority, acquire a new domicile.
18. Lunatic s acquisition of new domicile. An insane person cannot acquire a new domicile in any
other way than by his domicile following the domicile of another person.
19. Succession to moveable property in India in absence of proof of domicile elsewhere. If a
person dies leaving moveable property in 1[India ], in the absence of proof of any domicile elsewhere,
succession to the property is regulated by the law of 1[India].
PART III
MARRIAGE
20. Interests and powers not acquired nor lost by marriage. (1) No person shall, by marriage,
acquire any interest in the property of the person whom he or she marries or become incapable of doing
any act in respect of his or her own property which he or she could have done if unmarried.
(2) This section
shall not apply to any marriage contracted before, the first day of J anuary, 1866;
shall not apply, and shall be deemed never to have applied, to any marriage, one or both of the parties
to which professed at the time of the marriage the Hindu , Muhammadan, Buddhist, Sikh or Jaina religion.
21. Effect of marriage between pers on domiciled and one not domiciled in India. If a person
whose domicile is not in 1[India] marries in 1[India] a person whose domicile is in 1[India], neither party
acquires by the marriage any rights in respect of any property of the other party not compr ised in a
settlement made previous to the marriage, which he or she would not acquire thereby if both were
domiciled in 1[India] at the time of the marriage.
22. Settlement of minor s property in contemplation of marriage. (1) The property of a minor
may b e settled in contemplation of marriage, provided the settlement is made by the minor with the
approbation of the minor s father, or, if the father is dead or absent from 1[India], with the approbation of
the High Court.
(2) Nothing in this section or in se ction 21 shall apply to any will made or intestacy occurring before
the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu,
Muhammadan, Buddhist, Sikh or Jaina.
PART IV
OF CONSANGUINITY
23. Application of Part. Nothing in this Part shall apply to any will made or intestacy occurring
before the first day of January, 1866, or to intestate or testamentary succession to the property of any
Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi.
24. Kindred or consan guinity. Kindred or consanguinity is the connection or relation of persons
descended from the same stock or common ancestor.
25. Lineal consanguinity. (1) Lineal consanguinity is that which subsists between two persons, one
of whom is descended in a direct line from the other, as between a man and his father, grandfather and
great -grandfather, and so upwards in the direct ascending line; or between a man andhis son, grandson,
great -grandson and so downwards in the direct descending line.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule for the States.
19 (2) Every generatio n constitutes a degree, either ascending or descending.
(3) A person s father is related to him in the first degree, and so likewise is his son; his grandfather
and grandson in the second degree; his great -grandfather and great |
the first degree, and so likewise is his son; his grandfather
and grandson in the second degree; his great -grandfather and great -grandson in the third degree , and so
on.
26. Collateral consanguinity. (1) Collateral consanguinity is that which subsists between two
persons who are decended from the same stock or ancestor, but neither of whom is descended in a direct
line from the other.
(2) For the purpose of as certaining in what degree of kindred any collateral relative stands to a person
deceased, it is necessary to reckon upwards from the person deceased to the common stock and then
downwards to the collateral relative, a degree being allowed for each person, both ascending and
descending.
27. Persons held for purpose of succession to b e similarly related to deceased. For the purpose
of succession, there is no distinction
(a) between those who are related to a person deceased through his father, and those who are
related to him through his mother; or
(b) between those who are related to a person deceased by the full blood, and those who are
related to him by the half blood; or
(c) between those who were actually born in the lifetime of a person deceased and those who at
the date of his death were only conceived in the womb, but who have been subsequently born alive.
28. Mode of computing of degrees of kindred. Degrees of kindred are computed in the manner set
forth in the table o f kindred set out in Schedule I.
Illustrations
(i) The person whose relatives are to be reckoned, and his cousin -german, or first cousin, are, as shown in the
table, related in the fourth degree; there being one degree of ascent to the father, and another to the common
ancestor, the grandfather; and from him one of descent to the uncle, and another to the cousin -german, making in all
four degrees.
(ii) A grandson of the brother and a son of the uncle, i.e., a great -nephew and a cousin -german, are in equal
degree, being each fou r degre es removed.
(iii) A grandson of a cousin -german is in the same degree as the grandson of a great -uncle, for they are both in
the sixth degree of kindred.
PART V
INTESTATE SUCCESSION
CHAPTER I.Preliminary
29. Application of Part. (1) This Part shall not apply to any intestacy occurring before the first day
of January, 1866, or to the pr operty of any Hindu, Muhammada n, Buddhist, Sikh or Jaina.
(2) Save as provided in sub -section ( 1) or by any other law for the time being in force, the provisions
of this Pa rt shall constitute the law of 1[India] in all cases of intestacy.
30. As to what property deceased considered to have died intestate. A person is deemed to die
intestate in respect of all property of which he has not made a testamentary disposition which is capable
of taking effect,
1. Subs. by Act 3 of 1951, s. 3 and the Schedule for the States.
20 Illustrations
(i) A has left no will. He has died intestate in respect of the whole of his property.
(ii) A has left a will, whereby he has appointed B his executor; but the will contains no other provision. A has
died intestat e in respect of the distribution of his property.
(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the
distribution of his property.
(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has made no other bequest;
and has died leaving the sum of 2,000 rupees and no other property. C died before A without having ever had a son.
A has died intestate in respect of the distribution of 1,000 rupees.
CHAPTER II.Rules in cases of In testates other than Parsis
31. Chapter not to apply to Parsis. Nothing in this Chapter shall apply to Parsis.
32. Devolution of such property. The property of an intestate devolves upon the wife or husband,
or upon those who are of the kindred of the decea sed, in the order and according to the rules hereina fter
contained in this Chapter.
1* * * * *
33. Where intestate has left widow and lineal descendants, or widow and kindred only, or
widow and no kindred. Where the intestate has left a widow
(a) if he has also left any lineal descendants, one -third of his property shall belong to his widow,
and the remaining two -thirds shall go to his lineal descendants, according to the rules hereinafter
contained;
(b) 2[save as provided by section 33A], if he h as left no lineal descendant, but has left persons
who are of kindred to him, one -half of his property shall belong to his widow, and the other half shall
go to those who are kindred to him, in the order and according to the rules hereinafter contained;
(c)if he has left none who are of kindred to him, the whole of his property shall belong to his
widow.
3[33A. Special provision where intestate has left widow and no lineal descendants. (1) Where
the intestate has left a widow but no lineal descendants and t he nett value of his property does not exceed
five thousand rupees, the whole of his property shall belong to the widow.
(2) Where the nett value of the property exceeds the sum of five thousand rupees, the widow shall be
entitled to five thousand rupees t hereof and shall have a charge upon the whole of such property for such
sum of five thousand rupees, with interest thereon from the d ate of the death of the intestate at 4 per cent.
per annum until payment.
(3) The provision for the widow made by this section shall be in. addition and without prejudice to
her interest and share in the residue of the estate of such intestate remaining after payment of the said
sum of five thousand rupees with interest as aforesaid, and such residue shall be distributed i n
accordance with the provisions of section 33 as if it were the who le of such intestate s property.
(4) The nett value of the property shall be ascertained by deducting from the gross value thereof all
debts, and all funeral and administration expenses of the intestate, and all other lawful liabilities and
charges to which the property shall be subject.
1. The Explanation omitted by Act 26 of 2002, s. 2 (w.e.f. 27 -5-2002).
2. Ins. by Act 40 of 1926, s. 2.
3. Ins. by s. 3, ibid.
21 (5) This section shall not apply
(a) to the property of
(i) any Indian Christian,
(ii) any child or grandchild of any male person who is or was at the time of his death an
Indian Christian, or
(iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to
whose property is, under section 24 of the Special Marriage Act, 1872 (3 of 1872), regulated by
the provisions of this Act;
(b) unless the deceased dies intestate in respect of all his property.]
34. Where intestate has left no widow, and where he has left no kindred. Where the intestate
has left no widow, his property shall go to his lineal descendants or to those who are of k indred to him,
not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are
of kindred to him, it shall go to the Government.
35. Rights of widower. A husband surviving his wife has the same rights in respect of her property,
if she dies intestate, as a widow has in respect of her husbands property, if he dies intestate.
Distribution where there are lineal descendants
36. Rules of distribution. The rules for the distribution of the intestate s prop erty (after deducting
the widow s share, if he has left a widow) amongst his lineal descendants shall be those contained in
sections 37 to 40.
37. Where intestate has left child or children only .Where the intestate has left surviving him a
child or children, but no more remote lineal descendant through a deceased child, the property shall
belong to his surviving child, if there is only one, or shall be equally divided among all his surviving
children.
38. Where intestate has left no child, but grandchild or grandchildren. Where the intestate has
not left surviving him any child but has left a grandchild or grandchildren and no more remote descendant
through a deceased grandchild, the property shall belong to his surviving grandchild if there is one, or
shall be equally divided among all his surviving grandchildren.
Illustrations
(i) A ha s three children, and no more, John, Mary and Henry. They all die before the father, John leav ing two
children, Mary three an d Henry four. Afterwards A dies intestate, leaving those nine grandchildren and no
descendant of any decreased grandchild. Each of his grandfather will have one -ninth.
(ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate's five
grandchildren, the children of John and Mary.
39. Where intestate has left only great -grandchildren or remoter lineal descendants. In like
manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate,
where they are all in the degree of gr eat-grandchildren to him, or are all in a more remote degree.
40. Where intestate leaves lineal descendants not all in same degree of kindred to him, and those
through whom the more remote are descended are dead. (1) If the intestate has left lineal
descen dants who do not all stand in the same degree of kindred to him, and the persons through whom the
more remote are descended from him are dead, the property shall be divided into such a number of equal
shares as may correspond with the number of the lineal descendants of the intestate who either stood in
the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him,
died before him, leaving lineal descendants who survived him.
22 (2) One of such shares shall be allott ed to each of the lineal descendants who stood in the nearest
degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect ofeach
of such deceased lineal descendants; and the share allotted in respect of each of su ch deceased lineal
descendants shall belong to his surviving child or children or more remote lineal descendants, as the case
may be; such surviving child or children or more remote lineal descendants always taking the share which
his or their parent or pa rents would have been entitled to respectively if such parent or parents had
survived the intestate.
Illustrations
(i) A had three children, John, Mary and Henry; John died, leaving four children, and Mary died, leaving one,
and Henry alone survived the fa ther. On the death of A, intestate, one -third is allot ted to Henry, one -third to John s
four children, and the remaining third to Mary s one child.
(ii) A left no child, but left eight grandchildren, and two children of a deceased grandchild. The property is
divided into nine parts, one of which is allotted to each grandchild, and the remaining one -ninth is equally divided
between the two great -grandchildren.
(iii) A has three children, John, Mary and Henry; John dies leaving four children; and one of John s children
dies leaving two children. Mary dies leaving one child. A afterwards dies intestate. One -third of his property is
allotted to Henry, one -third to Mary s child, and one -third is divided into four parts, one of wh ich is allotted to each
of John s three surviving children, and the remaining part is equally divided between John s two grandchildren.
(iv) A has two children, and no more, John and Mary. John dies before his father, leaving his wife pregnant.
Then A dies leaving Mary surviving him, and i n due time a child of John is born. A s property is to be equally
divided between Mary and the posthumous child.
Distribution where there are no lineal descendants
41. Rules of distribution where intestate has left no lineal descendants. Where an intestate has
left no linal descendants, the rules for the distribution of his property (after deducting the widow s share,
if he has left a widow) shall be those contained in sections 42 to 48.
42. Where intestate's father living. If the intestate s father is livi ng, he shall succeed to the
property.
43. Where intestate s father dead, but his mother, brothers and sisters living. If the intestate s
father is dead, but the intestate s mother is living and there are also brothers or sisters of the intestate
living, an d there is no child living of any deceased brother or sister, the mother and each living brother or
sister shall succeed to the property in equal shares.
Illustration
A dies intestate, survived by his mother and two brothers of the full blood, John and Hen ry, and a sister Mary,
who is the daughter of his mother but not of his father. The mother takes one -fourth, each brother takes one -fourth
and Mary, the sister of half blood, takes one -fourth.
44. Where intestate s father dead and his mother, a brother or sister, and children of any
deceased brother or sister, living. If the intestate s father is dead but the intestate s mother is living,
and if any brother or sister and the child or children of any brother or sister who may have died in the
intestate s lifetime are also living, then the mother and each living brother or sister, and the living child or
children of each deceased brother or sister, shall be entitled to the property in equal shares, such children
(if more than one) taking in equal shares only t he shares which their respective parents would have taken
if living at the intestate s death.
Illustration
A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary,
and two children of George, a deceas ed brother of the half blood who was the son of his father but not of his mother.
The mother takes one -fifth, John and Henry each takes one -fifth, the child of Mary takes one -fifth, and the two
children of George divide the remaining one -fifth equally betw een them.
23 45. Where intestates father dead and his mother and children of any deceased brother or sister
living. If the intestate s father is dead, but the intestate s mother is living, and the brothers and sisters
are all dead, but all or any of them hav e left children who survived the intestate, the mother and the child
or children of each deceased brother or sister shall be entitled to the property in equal shares, such
children (if more than one) taking in equal shares only the shares which their respe ctive parents would
have taken if living at the intestates death.
Illustration
A |
shares only the shares which their respe ctive parents would
have taken if living at the intestates death.
Illustration
A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased sister, Mary, and two
children of a deceased brother, George. The mother takes o ne-third, the child of Mary takes one -third, and the
children of George divide the remaining one -third equally between them.
46. Where intestate s father dead, but his mother living and no brother, sister, nephew or
niece. If the intestate s father is dead , but the intestate s mother is living, and there is neither brother,
nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.
47. Where intestate has left neither lineal descendant, nor father, nor mother. Where the
intestate has left neither lineal descendant, nor father, nor mother, the property shall be divided equally
between his brothers and sisters and the child or children of such of them as may have died before him,
such children (if more than one) t aking in equal shares only the shares which their respective parents
would have t aken if living at the intestate s death.
48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.
Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall
be divided equally among those of his relatives who are in the nearest degree of kindred to him.
Illustrations
(i) A, the intestate, has left a grandfather, and a grandmother and no other relative standing in the same or
a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal
shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.
(ii) A, the intestate, has left a great -grandfather, or a great -grandmother, and uncles and aunts, and no other
relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take
equal shares.
(iii) A, the intestate, left a great -grandfather, an uncle and a nephew, but no relative standing in a nearer degree
of kindred to him. All of these being in the third degree will take equal shares.
(iv) Ten children of one brother or sister of the intestate, and one child of another brogher or sister of the
intestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one -eleventh of
the property.
49. Children s advancements not brought into hotchpot. Where a distributive sh are in the
property of a person who has died intestate is claimed by a child, or any descendant of a child, of such
person, no money or other property which the intestate may, during his life, have paid, given or settled to,
or for the advancement of, the child by whom or by whose descendant the claim is made shall be taken
into account in estimating such distributive share.
CHAPTER III.Special Rules for Parsi Intestates
1[50. General principles relating to intestate succession. For the purpose of intestate succession
among Parsis
(a) there is no distinction between those who were actually born in the lifetime of a person
deceased and those who at the date of his death were only conceived in the womb, but who have been
subsequen tly born alive;
1. Subs. by Act 17 of 1939, s. 2, for s ections 50 to 56 (w.e.f. 1 2-6-1939).
24 (b) a lineal descendant of an intestate who has died in the lifetime of the intestate without leaving
a widow or widow er or any lineal descendant or 1[a widow or widower of any lineal descendant ] shall
not be taken into account in determini ng the manner in which the property of which the intestate has
died intestate shall be divided; and
(c) where a 2[widow or widower of any relative] of an intestate has married again in the lifetime
of the intestate, 3[such widow or widower] shall not be en titled to receive any share of the property of
which the intestate has died intestate, and 3[such widow or widower] shall be deemed not to be
existing at the intestate s death.
4[51. Division of intestate s property among widow, widower, children and paren ts.(1) Subject
to the provisions of sub -section ( 2), the property of which a Parsi dies intestate shall he divided,
(a) where such Parsi dies leaving a widow or widower and children, among the widow or
widower, and children so that the widow or widower and each child received equal shares;
(b) where such Parsi dies leaving children, but no widow or widower, among the children in
equal shar es.
(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower and
children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the
parents shall receive a share equal to half the share of each child.]
53. Division of share of predeceased child of intestate leaving lineal descendants .In all cases
where a Paris dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of
the intestate, the divis ion of the share of the property of which the intestate has died intestate which such
child would have taken if living at the intestate's death shall be in accordance with the following rules,
namely:
(a) If such deceased child was a son, his widow and ch ildren shall take shares in accordance with
the provisions of this Chapter as if he had died immediately after the intestate's death:
Provided that where such deceased son has left a widow or a widow of a lineal descendant but no
lineal descendant, the res idue of his share after such distribution has been made shall be divided in
accordance with the provisions of this Chapter as property of which the intestate has died intestate,
and in making the division of such residue the said deceased son of the intest ate shall no t be taken
into account.
(b) If such deceased child was a daughter, her share shall be divided equally among her children.
(c) If any c hild of such deceased child has, also died during the lifetime of the intestate, the share
which he or she wo uld have taken if living at the intestate s death, shall be divided in like manner in
accordance with clause ( a) or clause ( b), as the case may be.
(d) Where a remoter lineal descendant of the intestate has died during the lifetime of the intestate,
the pr ovisions of clause ( c) shall apply mutatis mutandis to the division of any share to which he or
she would have been entitled if living at the intestate s death by reason of the predecease of all the -
intestate's lineal descendants directly between him or h er and the intestate.
5[54. Division of property where intestate leaves no lineal descendant but leaves a widow or
widower or a widow or widower of any lineal descendant. Where a Parsi dies without leaving any
lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the
property of which the intestate dies intestate shall be divided in accordance with the following rules,
namely:
(a) if the intest ate leaves a widow or widower but no widow or widower of a lineal descendant,
the widow or widower shall take half the said property;
1. Subs. by Act 51 of 1991, s. 2, for a widow of any lineal descendant (w.e.f. 9 -12-1991).
2. Subs. s. 2, ibid., for widow of any relative (w.e.f. 9 -12-1991).
3. Subs. by s. 2, ibid., for she (w.e.f. 9 -12-1991).
4. Subs. by s. 3, ibid., for sections 51 and 52 (w.e.f. 9 -12-1991).
5. Subs. by s. 4, ibid., for section 54 (w.e.f. 9 -12-1991).
25 (b) if the intestate leaves a widow or widower and also a widow or widower of any lineal
descendant, his widow or her wido wer shall receive one -third of the said property and the widow or
widower of any lineal descendant shall receive another one -third or if there is more than one such
widow or widower of lineal descendants, the last mentioned one -third shall be divided equal ly among
them;
(c) if the intestate leaves no widow or widower, but one widow or widower of the lineal
descendant, such widow or widower of the lineal descendant shall receive one -third of the said
property or, if the intestate leaves no widow or widower but -more than one widow or widower of
lineal descendants, two -thirds of the said property shall be divided among such widows or widowers
of the lineal descendants in equal shares;
(d) the residue after the division specified in clause ( a), or clause ( b) or clause ( c) has been made
shall be distributed among the relatives of the intestate in the order specified in Part I of Schedule II;
and the next -of-kin standing first in Part I of that Schedule shall be preferred to those standing
second, the second to t he third and so on in succession, provided that the property shall be so
distributed that each male and female standing in the same degree of propinquity shall receive equal
shares;
(e) if there are no relatives entitled to the residue under clause ( d), the whole of the residue shall
be distributed in proportion to the shares specified among the persons entitled to receive shares under
this section.]
55. Division of property where intestate leaves neither lineal descendants nor a widow or
widower nor a wido w or widower of any lineal descendant. When a Parsi dies leaving neither lineal
descendants nor a widow or widower nor 1[a widow or widower of any lineal descendant] his or her next -
of-kin, in the order set forth in Part II of Schedule II, shall be entitle d to succeed to the whole of the
property of which he or she dies intestate. The next -of-kin standing first in Part II of that Schedule shall
be preferred to those standing second, the second to the third, and so on in succession, provided that the
propert y shall be so distributed that 2[each male and female standing in the same degree of propinquity
shall receive equal shares.]
56. Division of property where there is no relative entitled to succeed under the other provisions
of this Chapter. Where there is no relative entitled to succeed under the other provisions of this
Chapter to the property of which a Parsi has died intestate, the said property shall be divided equally
among those of the intestate's relatives who are in the nearest degree of kindred to him.]
PART VI
TESTAMENTARY SUCCESSION
CHAPTER I.Introductory
3[57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The
provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications
specified therein, apply
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day
of September, 1870, within the territories which at the said date were subject to the Lieutenant -
Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High
Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to
immoveable property situate within those territories or limits, 4[and
1. Subs. by Act 51 of 1991, s. 5, for a widow of any lineal descendant (w.e.f. 9 -12-1991).
2. Subs. by s. 5, ibid.,for each male shall take double the share of each female standing in the same degree of propinquity (w.e.f.
9-12-1991).
3. Sub -section ( 1) renumbered as section 57 thereof by Act 18 of 1929, s. 3 (w.e.f. 1 -10-1929) which was earlier renumbered as
sub-section ( 1) thereof by Act 37 of 1926, s . 2 (w.e.f. 9 -9-1926).
4. Added by s. 3 , ibid. (w.e.f. 1 -10-1929).
26 (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of
January, 1927, to which those provisions are not applied by clauses ( a) and ( b):]
Provided that marriage shall n ot revoke any such will or codicil. ]
1* * * * *
58. General application of Part. (1) The provisions of this Part shall not apply to testamentary
succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary
succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any wi ll made
before the first day of January, 1866.
(2) Save as provided in sub -section ( 1) or by any other law for the time being in force the provisions
of this Part shall constitute the law of 2[India] applicable to all cases of testatmentary succession.
CHAPTER IIOf Wills and Codicils
59. Person capable of making wills. Every person of sound mind not being a minor may dispose
of his property by will.
Explanation 1.A married woman may dispose by will of any property which she could alienate by
her own act d uring her life.
Explanation 2.Persons who are deaf or dumb or blind are not thereby incapacitated for making a
will if they are able to know what they do by it.
Explanation 3.A person who is ordinarily insane may make a will during interval in which he is of
sound mind.
Explanation 4.No person can make a will while he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause, tha t he does not know what he is doing.
Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has
not a competent understanding as to the nature of his property, or the persons who are of kind red to him, or in whose
favour it would be proper that he should make his will. A cannot make a valid will.
(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, |
valid will.
(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument,
nor the effect of its provisions. This instrument is not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of
disposing of his property, makes a will. This is a valid will.
60. Testamentary guardian. A father, whatever his age may be, may by will appoint a guardian or
guardians for his child during minority.
61. Will obtained by fraud, coercion orimportunity. A will or any part of a will, the making of
which has been caused by fraud or coercion, or by such importunity as tak es away the free agency of the
testator, is void.
Illustrations
(i) A, falsely and knowingly represents to the testator, that the testator s only child is dead, or that he has done
some undutiful act and thereby induces the. testator to make a will in his, As favour; such will has been obtained by
fraud, and is
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the
imprisonment.
1. Sub -section ( 2) omitted by Act 18 of 1929, s. 3 (w.e.f .1 -10-1929) which was earlier inserted by Act 37 of 1926, s. 2 (w.e.f. 9 -
9-1926).
2. Subs. by Act 3 of 1951, s. 3 and the Schedule for the States.
27 (iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he
makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making
of it having been caused by coercion.
(v) A, being of sufficient intellect, if undistrubed by the influence of others, to make a will yet being so much
under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he wou ld not have
executed the will but for fear of B. The will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of
a certain purport and does so merely to purchase peace and in submis sion to B. The will is invalid.
(vii) A being in such a state of health as to be capable of exercising his own judgment and volition, B uses
urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of
the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner
recommended by B. The will is not redered invalid by the intercession and persuasion of B.
(viii) A, with a view to obaining a legacy from B, pays him attention and flatters him and thereby produces in
him a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves
a legacy to A. The bequest is not rendered invalid by the attention and fl attery of A.
62. Will may be revoked or altered. A will is liable to be revoked or altered by the maker of it at
any time when he is competent to dispose of his property by will.
CHAPTER III.Of the Execution of unprivileged Wills
63. Execution of unprivileged wills. Every testator, not being a soldier employed in an expedition
or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute
his will according to the following rules:
(a) The testator shall si gn or shall affix his mark to the will, or it shall be signed by some other
person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him,
shall be so placed that it shall appear that it was intended thereby to give effect to the writing
as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator
sign or affix his mark to the will or has seen some other person sign the will, in the presence an d
by the direction of the testator, or has received from the testator a personal acknowledgment of
his signature or mark, or of the signature of such other person; and each of the witnesses shall
sign the will in the presence of the testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form of attestation shall be necessary.
64. Incorporation of papers by reference. If a testator, in a will or codicil duly attested, refers to
any other document the n actually written as expressing any part of his intentions, such document shall be
deemed to form a part of the will or codicil in which it is referred to.
CHAPTER IV.Of privileged Wills
65. Privileged wills. Any soldier being employed in an expedition or engaged in actual warfare,
1[or an airman so employed or engaged,] or any mariner being at sea, may, if he has completed the age of
eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills
are called privileged wills.
1. Ins. by Act 10 of 1927, s. 2 and the First Schedule (w.e.f. 4 -4-1927).
28 Illustrations
(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually
employed in an expedition, and can make a privileged will.
(ii) A is at se a in a merchant -ship, of which he is the purser. He is a mariner, and, being at sea, can make a
privileged will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such can
make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He
is, for the purposes of this section, a mariner at sea, and can make a privileged will.
(v) A, an admiral who commands a naval force, but who liv es on shore, and only occasionally goes on board his
ship, is not considered as at sea, and cannot make a privleged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make
a privileged will.
66. Mode of making, and rules fo r executing, privileged wills. (1) Privileged wills may be in
writing, or may be made by word of mouth.
(2) The execution of privileged wills shall be governed by the following rules:
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be
signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such case
it need not be attested.
(c) If the instrument purporting to be a will is w ritten wholly or in part by another person and is
not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the
testator's directions or that he recognised it as his will.
(d) If it appears on the face of the inst rument that the execution of it in the manner intended by
the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid,
provided that his non -execution of it can be reasonably ascribed to some cause other than the
abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, 1[airman] or mariner has written instructions for the preparation of his will, but
has died before it could be prepared and executed, such instructions shall be considered to constitute
his will.
(f) If the soldier, 1[airman] or mariner has, in the presence of two witnesses, given verbal
instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but
he has died before the instrument could be prepared and executed, such instructions shall be
considered to constitute his will, although they may not have been reduced int o writ ing in his
presence, nor read over to him.
(g) The soldier, 1[airman] or mariner may make a will b y word of mouth by declaring his
intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month after the testator,
being still alive, has ceased to be entitled to make a privileged w ill.
CHAPTER V.Of the Attestation, Revocation, Alteration and Revival of Wills
67. Effect of gift to attesting witness. A will shall not be deemed to be insufficiently attested by
reason of any benefit thereby given either by way of bequest or by way of a ppointment to any person
attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far
asconcerns the person so attesting, or the wife or husband of such person, or any person claiming under
either of them.
1. Ins. by Act 10 of 1927, s. 2 and the First Schedule (w.e.f. 4 -4-1927).
29 Explanation .A legatee under a will does not lose his legacy by attesting a codicil which confirms
the will.
68. Witness not disqualified by interest or by being executor. No person, by reason of interest in,
or of his being an executor of, a will, shall be disqualif ied as a witness to prove the execution of the will
or to prove the validity or invalidity thereof.
69. Revocation of will by testator s marriage. Every will shall be revoked by the marriage of the
maker, except a will made in exercise of a power of appoin tment, when the property over which the
power of appointment is exercised would not, in default of such appointment, pass to his or her executor
or administrator, or to the person entitled in case of intestacy.
Explanation .Where a man is invested with pow er to determine the disposition of property of which
he is not the owner, he is said to have power to appoint such property.
70. Revocation of unprivileged will or codicil. No unprivileged will or codicil, nor any part
thereof, shall be trevoked otherwise than by marriage, or by another will or codicil, or by some writing
declaring an intention to revoke the same and executed in the manner in which an unprivileged will is
herein before required to be executed, or by the burning, tearing, or other wise destroying the same by the
testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revo ke
the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privileged
will, which purports to revoke his unprivil eged will. This is a revocation.
71. Effect of obliteration, in terlineation or alteration in unprivileged will. No obliteration,
interlineation or other alteration made in any unprivileged will after the execution thereof shall have any
effect, except so far as the words or meaning of the will have been thereby render ed illegible or
undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the
execution of the will:
Provided that the will, as so altered, shall be deemed to be duly executed if the signature of the
testator an d the subscription of the witnesses is made in the margin or on some other part of the will
opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such
alteration, and written at the end or some other part of the will.
72. Revocation of privileged will or codicil. A privileged will or codicil, may be revoked by the
testator by an unprivileged will .or codicil, or by any act expressing an intention to revoke it and
accompanied by such formalities as would be su fficient to give validity to a privileged will, or by the
burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and
by his direction, with the intention of revoking the same.
Explanation .In order to the revoc ation of a privileged will or codicil by an act accompanied by
such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the
testator should at the time of doing that act be in a situation which entitles him to make a privileged will
73. Revival of unprivileged will. (1) No unprivileged will or codicil, nor any part thereof, which
has been revoked in any manner, shall be revived otherwise than by the re -execution thereof, or by a
codicil executed in manner herei nbefore required, and showing an intention to revive the same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, is
revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the
whole thereof, unless an intention to the contrary is shown by the will or codicil.
30 CHAPTER VI.Of the construction of Wills
74. Wording of wills. It is not necessary,.that any technical words or terms of art be used in a will,
but only that the wording be such that the intentions of the testator can be known therefrom.
75. Inquiries to determine questions as to object or subject of will. For the purpose of
determining quest ions as to what person or what property is denoted by any words used in a will, a Court
shall inquire into every material fact relating to the persons who claim to be interested under such will,
the property which is claimed as the subject of disposition, the circumstances of the testator and of his
family, and into every fact a knowledge of which may conduce to the right application of the words which
the testator has used.
Illustrations
(i) A, by his will, bequeaths 1,000 rupees to his eldest son or to hi s youngest grandchild, or to his cousin, Mary.
A Court may make inquiry in order to ascertain to what person the description in the will applies.
(ii) A, by his will, leaves to B my estate called Black Acre . It may be necessary to take evidence in order to
ascertain what is the subject -matter of the bequest; that is to say, what estate of thetestator s is called Black Acre.
(iii) A, by his will, leaves to B the estate which I purchased of C . It may be necessary to take evidence in
order to ascertain wha t estate the testator purchased of C.
76. Misnomer or mis |
necessary to take evidence in
order to ascertain wha t estate the testator purchased of C.
76. Misnomer or misdescription of object. (1) Where the words used in a will to designate or
describe a legatee or a class of legatees sufficiently show what is meant, and error in the name or
description shall not pre vent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the
description of a legatee may be corrected by the name.
Illustrations
(i) A bequeaths a legacy to Thomas, the second s on of my brother John . The testator has an only brother
named John, who has no son named Thomas, but has a second son whose name is William. William will have the
legacy.
(ii) A bequeaths a legacy to Thomas, the second son of my brother John . The testator has an only brother,
named John, whose first son is named Thomas and whose second son is named William. Thomas will have the
legacy.
(iii) The testator bequeaths his property to A and B, the legitimate children of C . C has no legitimate child,
but has two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among my seven children and, proceeding to
enumerate them, mentions six names only. This omission will not prevent the seventh child from taking a share with
the others.
(v) The testator, having six grandchildren, makes a bequest to my six grandchildren and, proceeding to
mention them by their Christian names, mentions one twice over o mitting another altogether. The one whose name
is not mentioned will take a share with the others.
(vi) The testator bequeaths 1,000 rupees to each of the three children of A . At the date of the will A has four
children. Each of these four children will, if he survives the testator, receive a legacy of 1,000 rupees.
77. When words may be supplied. Where any word material to the full expression of the meaning
has been omitted, it may be supplied by the context.
31 Illustration
The testator gives a legacy of five hundred to his daughter A and a legacy of five hundred rupees to his
daughter B. A will take a legacy of five hundred rupees.
78. Rejection of erroneous particulars in description of subject. If the thing which the testator
intended to bequeath can be sufficiently identified from the description of it given in the will, but some
parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the
bequest shall take effect.
Illustrations
(i) A bequeaths to B my marsh -lands lying in L and in the occupation of X . The testator had marsh -lands
lying in L but had no marsh -lands in the occupation of X. The words in the occupation of X shall be rejected as
erroneous, and the marsh lands of the testator lying in L w ill pass by the bequest.
(ii) The testator bequeaths to A my zamindari of Rampur . He had an estate at Rampur but it was a taluq and
not a zamindari. The taluq passes by this bequest.
79. When part of description may not be rejected as erroneous. If a wil l mentions several
circumstances as descriptive of the thing which the testator intends to bequeath, and there is any property
of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such
property, and it sha ll not be lawful to reject any part of the description as erroneous, because the testator
had other property to which such part of the description does not apply.
Explanation .In judging whether a case falls within the meaning of this section, any words wh ich
would be liable to rejection under section 78 shall be deemed to have been struck out of the will.
Illustrations
(i) A bequeaths to B my marsh -lands lying in L and in the occupation of X . The testator had marsh -lands
lying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will be
considered as limited to such of the testator's marsh -lands in L as were in the occupation of X.
(ii) A bequeaths to B my marsh -lands lying in L and in the occupation of X, com prising 1,000 bighas of
lands . The testator had marshlands lying in L some of which were in the occupation of X and some not in the
occupation of X. The measurement is wholly inapplicable to the marsh -lands of either class, or to the whole taken
together. The measurement will be considered as struck out of the will, and such of the testator's marsh -lands lying
in L as were in the occupation of X shall alone pass by the bequest.
80. Extrinsic evidence admissible in cases of patent ambiguity. Where the words of a will are
unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which can
have been intended by the testator, extrinsic evidence may be taken to show which of these applications
was intended.
Illustrations
(i) A man, having two cousins of the name of Mar y, bequeaths a sum of money to my cousin Mary . It appears
that there are two persons, each answering the description in the will. That description, therefore, admits of two
applications, only one of which can have been intended by the testator. Evidence is admissible to show which of the
two applications was intended.
(ii) A, by his will, leaves to B my estate called SultanpurKhurd . It turns out that he had two estates called
Sultanpur Khurd. Evidence is admis sible to show which estate was intended.
81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency. Where there is an
ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall
be adm itted.
32 Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his Will he
bequeaths 1,000 rupees to my aunt, Caroline and 1,000 rupees to my cousin, Mary and afterwards bequeaths
2,000 rupees to my b efore -mentioned aunt, Mary. There is no person to whom the description given in the Will
can apply, and evidence is not admissible to show who was meant by my before -mentioned aunt, Mary. The
bequest is, therefore, void for uncertainty under section 89.
(ii) A bequeaths 1,000 rupees to............leaving a blank for the name of the legatee. Evidence is not admissible
to show what name the testator intended to insert.
(iii) A bequeaths to B .......................rupees, or my estate of.................. ...... Evidence is not admissible to show
what sum or what estate the testator intended to insert.
82. Meaning or clause to be collected from entire Will. The meaning of any clause in a Will is to
be collected from the entire instrument, and all its parts are to be construed with reference to each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives the
whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in
A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted
sense the words in which he describes what he gives to A.
(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate
to A, and in another part of his Will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of
the first as if he had said I give Black Acre to B, and all the rest of my estate to A.
83. When words may be understood in restricted sense, and when in sense wider than usual.
General words may be understood in a restricted sense where it may be collected from the Will that the
testator meant to use them in a restricted sense; and words may be understood in a wider sense than that
which they usually bear, where it may be collected from the other words of the Will that the testator
meant to use them in such wider sense.
Illustrations
(i) A testator gives t o A my farm in the occupation of B , and to C all my marsh -lands in L . Part of the farm
in the occupation of B consists of marsh -lands in L, and the testator also has other marsh -lands in L, The general
words, all my marsh -lands in L , are restricted b y the gift to A. A takes the whole of the farm in the occupation of
B, including that portion of the farm which consists of marshlands in L.
(ii) The testator (a sailor on ship -board) bequeathed to his mother his gold ring, buttons and chest of clothes,
and to his friend, A (a shipmate) his red box, clasp -knife and all things not before bequeathed. The testator's share in
a house does not pass to A under this bequest.
(iii) A, by his Will, bequeathed to B all his household furniture plate, linen, china, boo ks, pictures and all other
goods of whatever kind; and afterwards bequeathed to B a specified part of his property. Under the first bequest is B
entitled only to such articles of the testator s as are of the same nature with the articles therein enumerated .
84. Which of two possible constructions preferred. Where a clause is susceptible of
two meanings according to one of which it has some effect, and according to the other of which it can
have none, the former shall be preferred.
85. No part rejected, if it can be reasonably construed. No part of a Will shall be rejected as
destitute of meaning if it is possible to put a reasonable construction upon it.
33 86. Interpretation of words repeated in different parts of will. If the same words occur in
different pa rts of the same will, they shall be taken to have been used everywhere in the same sense,
unless a contrary intention appears.
87. Testators intention to be effectuated as far as possible. The intention of the testator
shall not be set aside because it ca nnot take effect to the full extent, but effect is to be given to it as
far as possible.
Illustration
The testator by a will made on his death -bed bequeathed all his property to C.D. for life and after his decease to
a certain hospital. The intention of th e testator cannot take effect to its full extent because the gift to the hospital is
void under section 118, but it will take effect so far as regards the gift to C.D.
88. The last of two inconsistent clauses preva ils.Where two clauses of gifts in a will are
irreconcileable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of Ramnagar to A, and by the last clause of his
will leaves it to B and not to A . B will have it.
(ii) If a man, at the commencement of his will gives his house to A, and at the close of it directs that his house
shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.
89. Will or bequest void for uncertainty. A will or bequest not expressive of any definite
intention is void for uncertainty.
Illustration
If a testator says I bequeath goods to A, or I bequeath to A, or I leave to A all the goods mentioned in the
Schedule and no Schedule is found, or I bequeath money, wheat, oil, or the like, without saying how much,
this is void.
90. Words describing subject refer to property answering description at testator s death. The
description contained in a will of property, the subject of gift, shall, unless a contrary intention appears by
the will, be deemed to refer to and comprise the property answering that description at the death of the
testator.
91. Power of appointment executed by general bequest. Unless a contrary intention appears by
the will, a bequest of the estate of the testator shall be construed to include any property which he may
have -power to appoint by will to any object he may think proper, and shall operate as an execution of
such power; and a bequest of property descr ibed in a general manner shall be construed to include any
property to which such description may extend, which he may have power to appoint by will to any object
he may think proper, and shall operate as an execution of such power.
92. Implied gift to obj ects of power in default of appointment. Where property is bequeathed to
or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects
in such proportions as a specified person may appoint, and the will does not provide for the event of no
appointment being made; if the power given by the will is not exercised, the property belongs to all the
objects of the power in equal shares.
Illustration
A, by his will bequeaths a fund to his wife, for her life, and direc ts that at her death it shall be divided among
his children in such proportions as she shall appoint. The widow dies without having made any appointment. The
fund will be divided equally among the children.
93. Bequest to heirs, etc., of particular person without qualifying terms. Where a bequest is
made to the heirs or right heirs or relations or nearest relations or family or kindred or
nearest of kin or next-of-kin of a particular person without any qualifying terms, and the class so
designated forms the direct and independent object of the bequest, the property bequeathed shall
be distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assets
for the payment of his debts independently of such property .
34 Illustrations
(i) A leaves his property to my own nearest relations. The property goes to those who would be entitled to it if
A had died intestate, leaving assets for the payment of his debts independently of such p roperty.
(ii) A bequeaths 10,000 rupees to B for his life, and, after the death of B, to my own right heirs. The legacy
after Bs death belongs to those who would be entitled to it if it had formed part of As unbequeathed property.
(iii) A leaves his pr operty to B; but if B dies before him, to Bs next -of kin; B dies before A; the property
devolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debts
independently of such property.
(iv) A leaves 10,000 rupees to B for his life, and after his decease to the heirs of C. The legacy goes as if it
had belonged to C, and he had died intestate, leaving assets for the payment of his debt independently of the legacy.
94. Bequest to representatives , etc., of particular person. Where a bequest is made to the
representatives or legal representatives or personal representatives or executors or administrators
of a particular person, and the class so designated forms the direct and independent object of the bequest,
the property bequeathed shall be distributed as if it had belonged to such person and he had died intest |
object of the bequest,
the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate
in respect of it.
Illustration
A bequest is made to the legal representatives of A. A has died intestate and insolvent. B is his adminis trator.
B is entitled to receive the legacy, and Will apply it in the first place to the discharge of such part of A s debt as may
remain unpaid: if there be any surplus B Will pay it to those persons who at A s death would have been entitled to
receive an y property of A s which might remain after payment of his debts, or to the representatives of such persons.
95. Bequest without words of limitation. Where property is bequeathed to any person, he is
entitled to the whole interest of the testator therein, u nless it appears from the Will that only a restricted
interest was intended for him.
96. Bequest in alternative. Where a property is bequeathed to a person with a bequest in the
alternative to another person or to a class of persons, then, if a contrary i ntention does not appear by the
Will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect;
but if he is then dead, the person or class of persons named in the second branch of the alternative shall
take t he legacy.
Illustrations
(i) A bequest is made to A or to B. A survives the testator. B takes nothing.
(ii) A bequest is made to A or to B. A dies after the date of the Will, and before the testator. The legacy goes to
B.
(iii) A bequest is made to A or to B. A is dead at the date of the Will. The legacy goes to B.
(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.
(v) Properly is bequeathed to A or his nearest of kin. A dies in the lifetime of the testa tor. Upon the death of the
testator, the bequest to A s nearest of kin takes effect.
(vi) Properly is bequeathed to A for life, and after this death to B or his heirs. A and B survive the testator. B
dies in A s lifetime. Upon A s death the bequest to the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator's lifetime. A
survives the testator. Upon A's death the bequest to the heirs of B takes effect.
35 97. Effect of words describing a class added to bequest to person. Where property is bequeathed
to a person, and words are added which describe a class of persons but do not denote them as direct
objects of a distinct and independent gift, such person is entitled to the whole interest of the testator
therein, unless a contrary intention appears by the will.
Illustrations
(i) A bequest is made
to A and his children,
to A and his children by his present wife,
to A and his heirs,
to A and the heirs of his body,
to A and t he heirs male of his body,
to A and the heirs female of his body,
to A and his issue,
to A and his family,
to A and his descendants,
to A and his representatives,
to A and his personal representatives,
to A, his executors and administrators.
In each of these cases, A takes the whole interest which the testator had in the property.
(ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.
(iii) A bequest is made to A for life and after his death to his issue. At the death of A the property belongs in
equal shares to all persons who then answer the description of issue of A.
98. Bequest to class of persons under general description only. Where a bequest is made to a
class of persons under a general description only , no one to whom the words of the description are not in
their ordinary sense applicable shall take the legacy.
99. Construction of terms. In a will
(a) the word children applies only to lineal descendants in the first degree of the person whose
children are spoken of;
(b) the word grandchildren applies only to lineal descendants in the second degree of the person
whose grand children are spoken of;
(c) the words nephews and nieces apply only to children of brothers or sisters;
(d) the wo rds cousins, or first cousins, or cousins -german, apply only to children of
brothers or of sisters of the father or mother of the person whose cousins, or first cousins, or
cousins -german, are spoken of;
(e) the words first cousins once remove d apply only to children of cousins -german, or to
cousins -german of a parent of the person whose first cousins once removed are spoken of;
(f) the words second cousins apply only to grandchildren of brothers or of sisters of the
grandfather or grandmo ther of the person whose second cousins are spoken of;
(g) the words issue and descendants apply to all lineal descendants whatever of the person
whose issue or descendants are spoken of;
(h) words expressive of collateral relationship apply alike to relatives of full and of half blood;
and
(i) all words expressive of relationship apply to a child in the womb who is afterwards born alive.
36 100. Words expressing relationship denote only legitimat e relatives or failing such relatives
reputed legitimate. In the absence of any intimation to the contrary in a will, the word child, the
word son, the word daughter or any word which expresses relationship, is to be understood as
denoting only a leg itimate relative, or, where there is no such legitimate relative, a person who has
acquired, at the date of the Will, the reputation of being such relative.
Illustrations
(i) A having three children, B, C and A of whom B and Care legitimate and D is illegi timate leaves his property
to be equally divided among my children . The property belongs to B and C in equal shares, to the exclusion of D.
(ii) A, having a niece of illegitimate birth, who has acquired the reputation of being his niece and having no
legitimate niece, bequeaths a sum of money to his niece. The illegitimate niece is entitled to the legacy.
(iii) A, having in his Will enumerated his children, and named as one of them B, who is illegitimate, leaves a
legacy to my said children . B Will take a share in the legacy along with the legitimate children.
(iv) A leaves a legacy to the children of B . B is dead and has left none but illegitimate children. All those who
had at the date of the Will acquired the reputation of being the children of B ar e objects of the gift.
(v) A bequeaths a legacy to the children of B . B never had any legitimate child. C and D had, at the date of
the Will, acquired the reputation of being children of B. After the date of the Will and before the death of the
testator, E and F were born, and acquired the reputation of being children of B. Only C and D are objects of the
bequest.
(vi) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of the
Will the reputation of being the child of A by the woman designated. B takes the legacy.
(vii) A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequest
is void.
(viii) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The
bequest is void.
101. Rules of construction where will purports to make two bequests to same person. Where a
will purports to make two bequests to the same person, and a question arises whether the testator intended
to make the second bequest instead of or in addition to the first; if there is nothing in the will to show
what he intended, the following rules shall have effect in determining the construction to be put upon the
will:
(a) If the same specific thing is bequeathed twice to the same legatee in the same will or in the
will and again in the codicil, he is entitled to receive that specific thing only.
(b) Where one and the same will or one and the same codicil purports to m ake, in two places, a
bequest to the same person of the same quantity or amount of anything, he shall be entitled to one
such legacy only.
(c) Where two legacies of unequal amount are given to the same person in the same will, or in the
same codicil, the l egatee is entitled to both.
(d) Where two legacies, whether equal or unequal in amount, are given to the same legatee, one
by a will and the other by a codicil, or each by a different codicil, the legatee is entitled to both
legacies.
Explanation : In claus es (a) to ( d) of this section, the word willdoes not include a codicil.
Illustrations
(i) A, having ten shares, and no more, in the Imperial Bank of India, made his Will, which contains near its
commencement the words I bequeath my ten shares in the Imperial Bank of India to B . After other bequests, the
Will concludes with the words "and I bequeath my ten shares in the Imperial Bank of India to B". B is entitled
simply to receive A s ten shares in the Imperial Bank of India.
37 (ii) A, having one diamon d ring, which was given to him by B, bequeaths to C the diamond ring which was
given by B. A afterwards made a codicil to his Will, and thereby, after giving other legacies, he bequeathed to C the
diamond ring which was given to him by B, C can claim nothi ng except the diamond ring which was given to A by
B.
(iii) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will repeats the bequest
in the same words. B is entitled to one legacy of 5,000 rupees only.
(iv) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will bequeaths to B the
sum of 6,000 rupees. B is entitled to receive 11,000 rupees.
(v) A, by his will, bequeaths to B 5,000 rupees and by a codicil to the will he bequeaths to him 5,000 r upees. B
is entitled to receive 10,000 rupees.
(vi) A, by one codicil to his will, bequeaths to B 5,000 rupees and by another codicil bequeaths to him, 6,000
rupees. B is entitled to receive 11,000 rupees.
(vii) A, by his will, bequeaths 500 rupees to B b ecause she was my nurse , and is another part of the will
bequeaths 500 rupees to B because she went to England with my children . B is entitled to receive 1,000 rupees.
(viii) A, by his will, bequeaths to B the sum of 5,000 rupees and also, in another pa rt of the will, an annuity of
400rupees. B is entitled to both legacies.
(ix) A, by his will, bequeaths to B the sum of 5,000 rupees and also bequeaths to him the sum of 5,000 rupees if
he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees, and takes a contingent interest in
another sum of 5,000 rupees.
102. Constitution of residuary legatee. A residuary legatee may be constituted by any words that
show an intention on the part of the testator that the person designated shall take the surplus or residue of
his property.
Illustrations
(i) A makes her will, consisting of several testamentary papers, in one of which are contained the following
words: I think there will be something left, after all funeral expenses, etc., to give to B, now at school, towards
equipping him to any profession he may hereafter be appointed to. B is constituted residuary legatee.
(ii) A makes his will, with the following passage at the end of it: I believe there will be found sufficient in
my banker s hands to defray and discharge my debts, which I hereby, desire B to do, and keep the residue for her
own use and pleasure. B is constituted the residuary legatee.
(iii) A bequeaths all his property to B, except certain stock and funds, which he bequeaths to C. B is the
residuary legatee.
103. Property to which residuary legatee entitled .Under a residuary bequest, the legatee is
entitled to all property belonging to the testator at the time of his death, of which he has not made any
other testamentary dis position which is capable of taking effect.
Illustration
A by his will bequeaths certain legacies, of which one is void under section 118, and another lapses by the death
of the legatee. He bequeaths the residue of his property to B. After the date of his will A purchases a zamindari,
which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the
residue.
104. Time of vesting legacy in general terms. 1f a legacy is given in general terms, without
specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of
the testator, and, if he dies without having received it, it shall pass to his representatives.
38 105. In what case legacy lapses. (1) If the legatee does n ot survive the testator, the legacy cannot
take effect, but shall lapse and form part of the residue of the testator s property, unless it appears by the
Will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he
survived the testator.
Illustrations
(i) The testator bequeaths to B 500 rupees which B owes me .B dies before the testator; the legacy lapses.
(ii) A bequest is made to A and his children. A dies before the testator, or happens to be dead when the will is
made. The legacy to A and his children lapses.
(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A dies before the testator. The
legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator; B
survives the testator. The bequest to B takes effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth year, an d in case he should die before
|
(v) A sum of money is bequeathed to A on his completing his eighteenth year, an d in case he should die before
he completes his eighteenth year, to B. A completes his eighteenth year, and dies in the lifetime of the testator. The
legacy to A lapses, and the bequest to ii does not take effect.
(vi) The testator and the legatee perished in the same ship -wreck. There is no evidence to show which died first.
The legacy lapses.
106. Legacy does not lapse if one of two joint legatees die before testator. If a legacy is given to
two persons jointly, and one of them dies before the testator, t he other legatee takes the whole.
Illustration
The legacy is simply to A and B. A dies before the testator. B takes the legacy.
107. Effect of words showing testators intention to give distinct shares. If a legacy is given to
legatees in words which show that the testator intended to give them distinct shares of it, then, if any
legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of
the testator's property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator, B
and C Will only take so much as they would have had if A had survived the testator.
108. When lapsed share goes as undisposed of. Where a share which lapses is a part of the
gener al residue bequeathed by the Will, that share shall go as undisposed of.
Illustration
The testator bequeaths me residue of his estate to A, B and C, to be equally divided between them. A dies
before the testator. His one -third of the residue goes as undisp osed of.
109. When bequest to testators child or lineal descendant does not lapse on his death in
testator s lifetime. Where a bequest has been made to any child or other lineal descendant of the
testator, and the legatee dies in the lifetime of the testa tor, but any lineal descendant of his survives the
testator, the bequest shall not lapse, but shall take effect if the death of the legatee had happened
immediately after the death of the testator, unless a contrary intention appears by the Will.
Illustrat ion
A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B
dies before A, leaving a son, C, who survives A, and having made his Will whereby he bequeaths all his property to
his widow. D. The money goes to D.
110. Bequest to A for benefit of B does not lapse by As death. Where a bequest is made to one
person, for the benefit of another, the legacy does not lapse by the death, in the testators lifetime, of the
person to whom the bequest is made.
39 111. Survivorship in case of bequest to described class. Where a bequest is made simply to a
described class of persons, the thing bequeathed shall go only to such as are alive at the testator s death.
Exception .If property is bequeathed to a class of person s described as standing in a particular
degree of kindred to a specified individual, but their possession of it is deferred until a time later than the
death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to s uch of
them as are then alive, and to the representatives of any of them who have died since the death of the
testator.
Illustrations
(i) A bequeaths 1,000 rupees to the children of B without saying when it is to be distributed among them. B
had died pre vious to the date of the will, leaving three children, C, D and E. E died after the date of the will, but
before the death of A. C and D survive A. The legacy will belong to C and D, to the exclusion of the representatives
of E.
(ii) A lease for years of a house, was bequeathed to A for his life, and after his decease to the children of B. At
the death of the testator, B had two children living, C and D, and he never had any other child. Afterwards, during
the lifetime of A, C died, leaving E, his executor. D has survived A, D and E are jointly entitled to so much of the
leasehold term as remains unexpired.
(iii) A sum of money was bequeathed to A for her life, and after her decease to the children of 13. At the death
of the testator, B had two children living, C and D, and, after that event, two children, E and F, were born to B. C
and E died in the lifetime of A, C having made a will, E having made no will. A has died, leaving D and F surviving
her. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, one
to the administrator of E and oneto F.
(iv) A bequeaths one -third of his lands to B for his life, and after his decease to the sisters of B. At the death of
the testator, B had two sisters living, C and D, and after that event another sister E was born. C died during the life
of B, D and E have survived B. One -third of A s land belong to D, E and the representatives of C, in, equal shares.
(v) A bequeaths 1,000 rupees to B for life and after his de ath equally among the children of C. Up to the death
of B, C had not had any child. The bequest after the death of B is void.
(vi) A bequeaths 1,000 rupees to all the children born or to be born of B to be divided among them at the
death of C. At the dea th of the testator, B has two children living, D and E. After the death of the testator, but in the
lifetime of C, two other children, F and G, are born to B. After the death of C, another child is horn to B. The legacy
belongs to D, E, F and G, to the exc lusion of the after -born child of B.
(vii) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At
the testator's death, B had one child living, named C. He afterwards had two other children, named D and E. E died,
but C and D were living when C attained majority. The fund belongs to C, D and the representatives of E, to the
exclusion of any child who may be born to B after C s attaining majority.
CHAPTER VII.Of void Bequests
112. Bequest to person by par ticular description, who is not in existence at testator s death.
Where a bequest is made to a person by a particular description, and there is no person in existence at the
testator's death who answers the description, the bequest is void.
Exception .If property is bequeathed to a person described as standing in a particular degree of
kindred to a specified individual, but his possession of it is deferred until a time later than the deathofthe
testator, by reason of a prior bequest or otherwise; and if a person answering the description isalive at the
death of the testator, or comes into existence between that event and such later time, the property shall, at
such later time, go to that person, or, if he is dead, to his representatives.
40 Illustrations
(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is
void.
(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator,
C had no son. After wards, during the life of B, a son is born to C. Upon B s death the legacy goes to .C's son.
(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator,
C had no son. Afterwards, during the life o f B, a son, named D, is born to C. D dies, then B dies. The legacy goes to
the representative of D.
(iv) A bequeaths his estate of Green Acre to be for life, and at his decease, to the eldest son of C. Up to the
death of B, C has had no son. The bequest to Cs eldest son is void.
(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of the
testator C has no son, but a son is afterwards born to him during the life of B and is alive at B s death. C s son is
entitled to the 1,000 rupees.
113. Bequest to person not in existence at testator's death subject to prior bequest. Where a
bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest
contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining
interest of the testator in the thing bequeathed.
Illustrations
(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the deat h of the
latter to his eldest son. At the time of the testator s death, A has no son. Here the bequest to A s eldest son is a
bequest to a person n ot in existence at the testator s death. It is not a bequest of the whole interest that remains to the
testator. The bequest to A s eldest son for his life is void.
(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has
daughters some of whom were not in existence at the tes tators death. The beques t to A s daughters comprises the
whole interest that remains to the testator in the thing bequeathed. The bequest to A s daughters is valid.
(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any o f
them marries under the age of eighteen, her portion shall be settled so that it may belong, to herself for life and may
be divisible among her children after her death. A has no daughters living at the time of the testator s death, but has
daughters born afterwards who survive him. Here the direction for a settlement has the effect in the case of each
daughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for her
life; that is to say, a bequest to a per son not in existence at the time of the testator s death of something which is less
than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void.
(iv) A bequeaths a sum of money to B for life, and d irects that upon the death of B the fund shall be settled upon
his daughters, so that the portion of each daughter may belong to herself for life, and may be divided among her
children after her death. B has no daughter living at the time of the testator s death. In this case the only bequest to
the daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest to persons
not yet born, of a life -interest in the fund, that is to say, of something which is less than t he whole interest that
remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void.
114. Rule against perpetuity. No bequest is valid whereby the vesting of the thing bequeathed may
be delayed beyond th e life -time of one or more persons living at the testator s death and the minority of
some person who shall be in existence at the expiration of that period, and to whom, if he attains full age,
the thing bequeathed is to belong.
41 Illustrations
(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B s death to such of the
sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the
age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have
elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the
lifetime of A and B and the minority of the sons of B. The bequest after B's death is void.
(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B s death to such of B's
sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case the
sons of B are persons living at the time of the testator s decease, and the time ashen either of them will attain 25
necessarily falls within his own lifetime. The bequest is valid.
(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B s
death it shall be divided amongst such of B s children as shall attain the age of 18, but that, if no child of B shall
attain that age, the fund shall go to C. Here the time for the div ision of the fund must arrive at the latest at the
expiration of 18 years from the death of B, a person living at the testator's decease. All the bequests are valid.
(iv) A fund is bequeathed to trustees for the benefit of the testator s daughters, with a direction that, if any of
them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her
children as shall attain the age of 18 . Any daugther of the testator to whom the direction applies must be in existence
at his decease, and any portion of the fund which may eventually be settled as directed must vest not later than 18
years from the death of the daughters whose share it was. All these provisions are valid.
115. Bequest to a class some of whom may come und er rules in sections 113 and 114. If a
bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the
provisions of section 113 or section 114, such bequest shall be 1[void in regard to those persons only, and
not in r egard to the whole class].
Illustrations
(i) A fund is bequeathed to A for life, and after his death to all his child ren who shall attain the age of 25. A
survives the testator, and has some children living at the te stator s death. Each child of A s living at the testator s
death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the
testator s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the
decease of A. The bequest to A s children, therefore, is inoperative as to any child born after the testator s death;
2[and in regard to those who do not attain the |
is inoperative as to any child born after the testator s death;
2[and in regard to those who do not attain the age of 25 within 18 years after A s death, but is operative in regard to
the other children of Al
(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shall
attain the age of 25. B, C, D are child ren of A living at the testator s decease. In all other respects the case is the
same as that supposed i n Illustration (i). 2[Although the mention of B, C and D does not prevent the bequest from
being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or D,
who attain the age of 25 within 18 years aft er As death ].
3[116. Bequest to take effect on failure of prior bequest. Where by reason of any of the rules
contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in
regard to such person or the whole of suc h class, any bequest contained in the same will and intended to
take effect after or upon failure of such prior bequest is also void.]
1. Subs. by Act 21 of 1929, s. 14, for wholly void.
2. Subs. by s. 14, ibid., for certa in words.
3. Subs. by s. 14, ibid., for section 116.
42 Illustrations
(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25,
for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take
effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under secti on
114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of
25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is i ntended to take
effect upon failure of the bequest to such of A s sons as shall first attain the age of 25, which bequest is void under
section 114. The bequest to B is void.
1[117. Effect of direction for accumulation. (1) Where the terms of a will direct that the income
arising from any property shall be accumulated either wholly or in part during any period longer than a
period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided,
be void to the extent to w hich the period during which the accumulation is directed exceeds the aforesaid
period, and at the end of such period of eighteen years the property and the income thereof shall be
disposed of as if the period during which the accumulation has been directe d to be made had elapsed.
(2) This section shall not effect any direction for accumulation for the purpose of
(i) the payment of the debts of the testator or any other person taking any interest under the will,
or
(ii)the provision of portions for childr en or remoter issue of the testator or of any other person
taking any interest under the will, or
(iii) the preservation or maintenance of an y property bequeathed;
and such direction may be made accordingly.]
118. Bequest to religious or charitable uses. No man having a nephew or niece or any nearer
relative shall have power to bequeath any property to religious or charitable uses, except by a will
executed not less than twelve months before his death, and deposited within six months from its execution
in some place provid ed by law for the safe custody of the wills of living persons:
2[Provided that nothing in this section shall apply to a Parsi.]
Illustrations
A having a nephew makes a bequest by a will not executed and deposited as required
for the relief of poor people;
for the maintenance of sick soldiers;
for the erection or support of a hospital;
for the education and preferment of orphans;
for the support of scholars;
for the erection or support of a school;
for the building and repairs of a bridge;
for the making of roads;
for the erection or support of a church;
for the repairs of a church;
for the benefit of ministers of religion;
for the formation or support of a public garden;
All these bequests are void.
1. Subs. by Act 21 of 1929, s. 14, for section 117.
2. Ins. by Act 51 of 1991, s. 6.
43 CHAPTER VIII. Of the vesting of L egacies
119. Date of vesting of legacy when payment or possession postponed. Where by the terms of a
bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at
the proper time shall, unless a contrary inte ntion appears by the will, become vested in the legatee on the
testator's death, and shall pass to the legatee's representatives if he dies before that time and without
having received the legacy, and in such cases the legacy is from the testator's death s aid to be vested in
interest.
Explanation .An intention that a legacy to any person shall not become vested in interest in him is
not to be inferred merely from a provision whereby the payment or possession of the thing be queathed is
postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the income
arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from
a provision that, if a particular event shall happen, the legacy s hall go over to another person.
Illustrations
(i) A bequeaths to B 100 rupees, to be paid to him at the death of C. On A s death the legacy becomes vested in
interest in B, and if he dies before C, his representatives are entitled to the legacy.
(ii) A bequeaths to B 100 rupees, to be paid to him upon his attaining the age of 18. On A s death the legacy
becomes vested in interest B.
(iii) A fund is bequeathed to A for life, and after his death to B. On the testator s death the legacy to B becomes
vested in interest in B.
(iv) A fund is bequeathed to A until B att ains the age of 18 and then to B. The legacy to B is vested in interest
from the testator s death. .
(v) A bequeaths the whole of his property to B upon trust to pay certain debts out of the incom e, and then to
make over the fund to C. At A s death the gift to C becomes vested in interest in him.
(vi) A fund is bequeathed to A, B and C in equal shares to be paid to them on their attaining the age of 18,
respectively, with a proviso that, if all of them die under the age of 18, the legacy shall devolve upon D. On the
death of the testator, the shares vested in interest in A, B and C, subject to be divested in case A, B and C shall all
die under 18, and, upon the death of any of them (except the last survivor) under the age of 18, his vested interest
passes, so subject, to his representatives.
120. Date of vesting when legacy contingent upon specified uncertain event. (1) A legacy
bequeathed in case a specified uncertain event shall happen does not ves t until that event happens.
(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the
happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the leg atee is called contingent.
Exception .Where a fund is bequeathed to any person upon his attaining a particular age, and the
will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs
the income, or so much of it as may be necessary, to be applied for his benefit, the bequestof the fund is
not contingent.
Illustrations
(i) A legacy is bequeathed to D in case A, B and C shall all die under the age of 18. D has a contingent interest
in the legacy until A, B and C all die under 18, or one of them attains that age.
(ii) A sum of money is bequeathed to A in case he shall attain the age of 18, or when he shall attain the age
of 18 . As interest in the legacy is contingent until the condition is fulfilled by his attaining that age.
(iii) An estate is bequeathe d to A for life, and after his death to B if B shall then be living; but ifB shall not be
then living to C. A, B and C survive the testator. B and C each take a contingent interest in the estate until the event
which is to vest it in one, or in the other has happened.
44 (iv) An estate is bequeathed as in the case last supposed. B di es in the lifetime of A and C. Upon the death of B,
C acquires a vested right to obtain possession of the estate upon A s death.
(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with the
consent of B, with a proviso that, if she neither attains 18 nor marries under that ag e with B s consent, the legacy
shall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutely
entitled to the legacy although she may ha ve married under 18 without the consent of B.
(vi) An estate is bequeathed to A until he shall mar ry and after that event to B. B s interest in the bequest is
contingent until the condition is fulfilled by A's marrying.
(vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, and
after that event to B. B s interest in the bequest is contingent until A takes advantage of such a law.
(viii) An estate is bequeathed to A if he shall pay 500 rupees to B. A s interest in the bequest is contingent until
he has paid 500 rupees to B.
(ix) A leaves his farm of SultanpurKhurd to B, if B shall convey his own farm of SultanpurBuzurg to C. B s
interest in the bequest is contingent until he has conveyed the latter fa rm to C.
(x) A fund is bequeathed to A if B shall not marry C withi n five years after the testator s death. A s interest in
the legacy is contingent until the condition is fulfilled by the expiration of the five years without B s having married
C, or by th e occurrence within that period of an event which makes the fulfilment of the condition impossible.
(xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent until
B's death.
(xii) A bequeaths of B 500 rupee s a year upon his attaining the age of 18, and directs that the interest, or a
competent part thereof, shall be applied for his ben efit until he reaches that age. The legacy is vested.
(xiii) A bequeaths to B 500 rupees when he shall attain the age of 18 a nd directs that a certain sum, out of
another fund, shall be applied for his maintenance until he arrives at that age. The legacy is contingent.
121. Vesting of interest in bequest to such members of a class as shall have attained particular
age.Where a b equest is made only to such members of a class as shall have attained a particular age, a
person who has not attained that age cannot have a vested interest in the legacy.
Illustration
A fund is bequeathed to such of the children of A as shall attain the age of 18, with a direction that, while any
child of A shall be under the age of 18, the income of the share, to which it may be presumed he will be eventually
entitled, shall be applied for his maintenance and education. No child of A who is under the age of 18 has a vested
interest in the bequest.
CHAPTER IX.Of Onerous Bequests
122. Onerous bequests. Where a bequest imposes an obligation on the legatee, he can take nothing
by it unless he accepts it fully.
Illustration
A, having shares in (X), a prospero us joint stock company and also shares in (Y), a joint sto ck company in
difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint
stock companies; B refuses to accept the shares in (Y). He forfeits the shares in (X).
123. One of two separate and independent bequests to same person may be accepted, and
otherrefused. Where a will contains two separate and independent bequests to the same person, the
legatee is at liberty to accept one of them and refu se the other, although the former may be beneficial and
the latter onerous.
45 Illustration
A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay
during the term, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. B
refuses to accept the lease. He will not by this refusal forfeit the money.
CHAPTER X.Of Contingent Bequests
124. Bequest contingent upon specified uncertain event, no time being mentioned for its
occurrence. Where a legacy is given if a specified uncertain event shall happen and no time is
mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event
happens before the period when the fund bequeathed is pa yable or distributable.
Illustrations
(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does
not take effect.
(ii) A legacy is bequeathed to A, and, in case of his death without children, to B. If A survives the testator or
dies in his lifetime leaving a child, the legacy to B does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attains
the age of 18. The Legacy to B does not take effect.
(iv) A legacy is bequeathed to A for life, and, after his death to B, and, in case of B s death without children,
to C. The words in case of B s death without children are to be understood as meaning in case B dies without
children dur ing the lifetime of A.
(v) A legacy is bequeathed to A for life, and, after his death to B, and, in case of B s death, to C. The words
in case of B s death are to be considered as meaning in case B |
, in case of B s death, to C. The words
in case of B s death are to be considered as meaning in case B dies in the lifetime of A .
125. Bequest to such of c ertain persons as shall be surviving at some period not specified.
Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact
period is not specified the legacy shall go to such of them as are alive at the time o f payment or
distribution, unless a contrary intention appears by the will.
Illustrations
(i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A
and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives
the testator, it goes to B.
(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, or
to the survivor of them. B dies during the life of A; C survives A. At A s death the legacy goes to C.
(iii) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that, if
B should not survive the testator, his children are to stand in his place. C dies during the life of the testator; B
survives the testator, but dies in the lifetime of A. The legacy goes to the representative of B.
(iv) Property is bequeathed to A for life, and, after his death, to B and C, with a direction that, in case either of
them dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. A fterward C dies in the
lifetime of A. The legacy goes to the representative of C.
CHAPTER XI.Of Conditional Bequests
126. Bequest upon impossible condition. A bequest upon an impossible condition is void.
46 Illustrations
(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
(ii) A bequeaths 500 rupees to B on condition that he shall marry A s daughter. A s daughter was dead at the
date of the will. The bequest is void.
127. Bequest upon illegal or immoral condition. A bequest upon a condition, the fulfilment of
which would be contrary to law or to morality is void.
Illustrations
(i) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.
(ii) A bequeaths 5,000 rupees to his ni ece if she will desert her husband. The bequest is void.
128. Fulfilment of condition precedent to vesting of legacy. Where a will imposes a condition to
be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shal l be
considered to have been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries
with the written consent of B. C is present at the marriage. D sends a present to A previous to the marriage. E has
been personally informed by A of h is intentions, and has made no objection. A has fulfilled the condition.
(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. A
marries with the consent of B and C. A has fulfilled the condition.
(iii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in
the lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition.
(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains the
unconditional assent of B, C and D to his marriage with E. Afterwards B, C and D capriciously retract their consent.
A marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on co ndition that he shall marry with the consent of B, C and D. A marries
without the consent of B, C and D, but obtains their consent after the marriage. A has not fulfilled the condition.
(vi) A make his will whereby he bequeaths a sum of money to B if B sha ll marry with the consent of A s
executors. B marries during the lifetime of A, and A afterwards expresses his approbation of the marriage. A dies.
The bequest to B takes effect.
(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The
document is executed by A within a reasonable time, but not within the time specified in the will. A has not
performed the condition, and is not entitled to receive the legacy.
129. Bequest to A and on failure of prior bequest to B. Where there is a bequest to one person
and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take
effect upon the failure of the prior bequest although the failure may not have occurred in the m anner
contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies
without having ever had a child. The bequest to B takes effect.
(ii) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three
months after A s death, and, if he should neglect to do so, to C. B dies in the testator s lifetime. The bequest to C
takes effect.
47 130. When second bequest not to take effect on fail ure of first. Where the will shows anintention
that the second bequest shall take effect only in the event of the first bequest failing in a particular
manner, the second bequest shall not take effect, unless the prior bequest fails in that particular mann er.
Illustration
A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had
bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she
died before him, the bequest to B does not take effect.
131. Bequest over, conditional upon happening or not happening of specified uncertain event.
(1) A bequest may be made to any person with the condition super -added, that, in case a specified
uncertain event shall happ en, the thing bequeathed shall go to another person, or that in case a specified
uncertain event shall not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in sections 120 , 121, 122, 123,
124, 125, 126, 127, 129 and 130.
Illustrations
(i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attains
that age, to B. A takes a vested interest in the legacy, subject to be divested and to go to B in case A dies under 18.
(ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a
will, the estate shall go to B. A disputes the competency of the testator to make a will. The estate goes to B.
(iii) A sum of money is bequeathed to A for life, and, after his death, to B, but if B shall then be dead leaving a
son, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be divested if he dies
leaving a son in A s lifetime.
(iv) A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivor
living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one -
half of the money, and the representative of B takes the other half.
(v) A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally among
her three children, or such of them as shall he living at her death. All the children of B die in B s lifetime. The
bequest over cannot take effect, but the interests of the children pass to their representatives.
132. Condition must be strictly fulfilled .An ulterior bequest of the kind contemplated by section
131 cannot take effect, unless the condition is strictly fulfilled.
Illustrations
(i) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, C and D, the legacy
shall go to E. E' dies. Even if A marries without the consent of B and C, the gift to E does not take effect.
(ii) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, the legacy shall go
to C. A marries with the consent of B. He afterwards becomes a widower and marries again without the c onsent of
B. The bequest to C does not take effect.
(iii) A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that, if A dies under 18 or marries
without the consent of B, the legacy shall go to C. A marries under 18, without the con sent of B. The bequest to C
takes effect.
133. Original bequest not affected by invalidity of second. If the ulterior bequest be not valid the
original bequest is not affected by it.
48 Illustrations
(i) An estate is bequeathed to A for his life with condition super -added that, if he shall not on a given day walk
100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had
been inserted in the will.
(ii) An estate is bequeathed to A for her life and, if she do not desert her husband, to B. A is entitled to the estate
during her life as if no condition had been inserted in the will.
(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the
testator s death, had not had a son. The bequest over is void under section 105, and A is entitled to the estate during
his life.
134. Bequest conditioned that it shall cease to have effect in case a specified uncertain event
shall happen, or not happen. A bequest may be made with the condition super -added that it shall
cease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain event
shall not happen.
Illustrations
(i) An estate is bequeathed to A fo r his life, with a proviso that, in case he shall cut down a certain wood, the
bequest shall cease to have any effect. A cuts down the wood. He loses his life -interest in the estate.
(ii) An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of the
executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the
executors. The estate ceases to belong to him.
(iii) An estate is bequeathed to A, provided that, if h e shall not go to England within three years after the
testator's death, his interest in the estate shall cease. A does not go to England within the time prescribed. His
interest in the estate ceases.
(iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interest
in the estate. A becomes a nun. She loses her interest under the will.
(v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be then living, with a proviso that, if
B shal l become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. She
thereby loses her contingent interest in the fund.
135. Such condition must n ot be invalid under section 120. In order that a condition that a
bequ est shall cease to have effect may be valid, it is necessary that the event to which it relates be one
which could legally constitute the condition of a bequest as contemplated by section 120.
136. Result of legatee rendering impossible or indefinitely pos tponing act for which no time
specified, and on non -performance of which subject -matter to go over. Wherea bequest is made
with a condition super -added that, unless the legatee shall perform a certain act, thesubject -matter of the
bequest shall go to anoth er person, or the bequest shall cease to have effect but no time is specified for the
performance of the act; if the legatee takes any step which renders impossible or indefinitely postpones
the performance of the act required, the legacy shall go as if th e legatee had died without performing such
act.
Illustrations
(i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes
Holy Orders, and thereby renders it impossible that he should fulfil the condit ion. B is entitled to receive the legacy.
(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B's
daughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequest
ceases to have effect.
137. Performance of condition, precedent or subsequent, within specified time. Further time In
case of fraud. Where the will requires an act to be performed by the legatee within a specified time,
either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon the non -fulfilment
of which the subject -matter of the bequest is to go over to another person or the bequest is to cease to
have effect, the act must be performed within the time specified, unless the performance of it be
prevented by fraud, in which case such further time shall be allowed as shall be requisite to make up for
the de lay caused by such fraud.
49 CHAPTER XII.Of Bequests with Directions as to Application or Enjoyment
138. Direction that fund be employed in particular manner following absolute bequest of same
to or for benefit of any person. Where a fund is beq ueathed absolutely to or for the benefit of any
person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the
legatee shall be entitled to receive the fund as if the will had contained no such direction.
Illustra tion
A sum of money is bequeathed towards purchasing a country residence for A, or to purchase an annuity for A,
or to place A in any business. A choses to receive the legacy in money. He is entitled to do so.
139. Direction that mode of enjoyment of absol ute bequest is to be restricted, to secure specified
benefit for legatee. Where a testator absolutely bequeaths a fund, so as to sever it from his own estate,
but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a |
it from his own estate,
but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a specified
benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him as if the
will had contained no such direction.
Illustrations
(i) A bequeaths the residue of his property to be divided equally among his daught ers, and directs that the shares
of the daughters shall be settled upon themselves respectively for life and be paid to their children after their death.
All the daughters die unmarried. The representatives of each daughter are entitled to her share of the residue.
(ii) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the
fund and pay the income arising from it to her during her life, and divide the principal among her children after her
death. The daughter dies without having ever had a child. Her representatives are entitled to the fund.
140. Bequest of fund for certain purposes, some of which cannot be fulfilled. Where a testator
does not absolutely bequeath a fund, so as to sever it from his own estate, but gives it for certain purposes,
and part of those purposes cannot be fulfilled, the fund, or so much of it as has not been exhausted upon
the objects contemplated by the will, remains a part of the estate of the testator.
Illustrations
(i) A dir ects that his trustees shall invest a sum of money in a particular way, and shall pay the interest to his son
for life, and at his death shall divide the principal among his children. The son dies without having ever had a child.
The fund, after the son's death, belongs to the estate of the testator.
(ii) A bequeaths the residue of his estate, to be divided equally among his daughters, with a direction that they
are to have the interest only during their lives, and that at their decease the fund shall go to their children. The
daughters have no children. The fund belongs to the estate of the testator.
CHAPTER XIII. Of Bequests to an Executor
141. Legatee named as executor cannot take unless be shows intention to act as executor. If a
legacy is bequeathed to a person who is named an executor of the will, he shall not take the legacy, unless
he proves the will or otherwise manifests an intention to act as executor.
Illustration
A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in
the will, and dies a few days after the testator, without having proved the will. A has manifested an intention to act
as executor.
50 CHAPTER XIV.Of Specific Legacies
142. Specific legacy defined. Where a testator be queaths to any person a specified part of his
property, which is distinguished from all other parts of his property, the legacy is said to be specific.
Illustrations
(i) A bequeaths to B
the diamond ring presented to me by C :
my gold chain :
a certain bale of wool :
a certain piece of cloth :
all my household goods which shall be in or about my dwelling -house in M. Street, in Calcutta, at time of my death :
the sum of 1,000 rupees in a certain chest :
the debt which B owes me :
all my bills, bonds and securities belonging to me lying in my lodgings in Calcutta :
all my furniture in my house in Calcutta :
all my goods on board a certain ship now lying in the river Hughli :
2,000 rupees which I have in the hands of C :
the money due to me on the bond of D :
my mortgage on the Rampur factory :
one-half of the money owing to me on my mortgage of Rampur factory :
1,000 rupees, being part of a debt due to me from C :
my capital stock of 1,0001 in East India Stock :
my promissory notes of the Central Government for 10,000 rupees in their 4 per cent. Loan:
all such sums of money as my executors may, after my -death, receive in respect of the debt due to me from the
insolvent firm of D and Company :
all the wine which I may have in my cellar at the time of my death :
such of my horses as B may select
all my shares in the Imperial Bank of India :
all my shares in the Imperial Bank Of India which I may possess at the time of my death :
all the money which I have in the 51/2 per cent. loan of the Central Government :
all the Government securities I shall be entitled to at the time of my decease .
Each of these legacies is specific.
(ii) A, having Government promissory notes for 10,000 rupees, bequeaths to his executo rs Government promissory notes
for 10,000 rupees in trust to sell for the benefit of B. The legacy is specific.
(iii) A, having property at Benares, and also in other places, bequeaths to B all his property at Benares. The legacy is
specific.
(iv) A bequ eaths to B
his house in Calcutta:
his zamindari of Rampur:
histaluq of Ram nagar:
51 his lease of the indigo -factory of Salkya:
an annuity of 500 rupees out of the rents of his zamindari of W.
A directs his zamindari of X to be sold, and the proceeds to be invested for the benefit of B.
Each of these bequests is specific.
(v) A by his will charges his zamindari of Y with an annuity of 1,000 rupees to C during his life, and subject to
this charge he bequeaths the zamindari to D. Each of these b equests is specific.
(vi) A bequeaths a sum of money
to buy a house in Calcutta for B:
to buy an estate in zilaFaridpur for B:
to buy a diamond ring for B:
to buy a horse for B:
to be invested in shares in the Imperial Bank of India for B:
to be invested in Government securities for B.
A bequeaths to B
a diamond ring :
a horse :
10,000 rupees worth of Government securities :
an annuity of 500 rupees :
2,000 rupees to be paid in cash :
so much money as will produce 5,000 rupees four per cent. Government securities.
These bequests are not specific.
(vii) A, having property in England and property in India, bequeaths a legacy to B, and directs that it shall be
paid out of the property which he may leave in India. He also bequeaths a legacy to C, and directs that it shall be
paid out of propertywhich he may leave in England. No one of these legacies is specific.
143. Bequest of certain sum where stocks, etc., in which invested are described. Where a
certain sum is bequeathed, the legacy is not spe cific merely because the stock, funds or securities in
which it is invested are described in the will.
Illustration
A bequeaths to B
10,000 rupees of my funded property :
10,000 rupees of my property now invested in shares of the East Indian Railway Co mpany :
10,000 rupees, at present secured by mortgage of Rampur factory ,
No one of these legacies is specific.
144. Bequest of stock where testator had, at date of will, equal or greater amount of stock of
same kind. Where a bequest is made in general te rms of a certain amount of any kind of stock, the
legacy is not specific merely because the testator was, at the date of his will, possessed of stock of the
specified kind, to an equal or greater amount than the amount bequeathed.
Illustration
A bequeaths to B 5,000 rupees five per cent. Government securities. A had at the .date of the will five per cent.
Government securities for 5,000 rupees. The legacy is not specific.
52 145. Bequest of money where not payable until part of testator's property disposed of in certain
way. A money legacy is not specific merely because the will directs its payment to be postponed until
some part of the property of the testator has been reduced to a certain form, or remitted to a certain place.
Illustration
A bequeaths to B 10,000 rupees and directs that this legacy shall be paid as soon as A s property in India shall
be realised in England. The legacy is not specific.
146. When enumerated articles not deemed specifically bequeathed. Where a will contains a
bequest of the residue of the testator's property along with an enumeration of some items of property not
previously bequeathed, the articles enumerated shall not be deemed to be specifically bequeathed.
147. Retention, in form, of specific bequest to seve ral persons in succession. Where property is
specifically bequeathed to two or more persons in succession, it shall be retained in the form in which the
testator left it, although it may be of such a nature that its value is continually decreasing.
Illustr ations
(i) A, having lease of a house for a term of years, fifteen of which were unexpired at the time of his death, has
bequeathed the lease to B for his life, and after B s death to C. B is to enjoy the property as A left it, although, if B
lives for fif teen years, C can take nothing under the bequest.
(ii) A, having an annuity during the life of B, bequeaths it to C, for his life, and, after C s death, to D. C is to
enjoy the annuity as A left it, although, if B dies before D, D can take nothing under t he bequest.
148. Sale and investment of proceeds of property bequeathed to two or more persons in
succession. Where property comprised in a bequest to two or more persons in succession is not
specifically bequeathed, it shall, in the absence of any directi on to the contrary, be sold, and the proceeds
of the sale shall be invested in such securities as the High Court may by any general rule authorise or
direct, and the fund thus constituted shall be enjoyed by the successive legatees according to the terms o f
the will.
Illustration
A, having a lease for a term of years, bequeaths all his property to B for life, and, after B s death to C. The lease
must be sold, the proceeds invested as stated in this section and the annual income arising from the fund is to b e paid
to B for life. At B s death the capital of the fund is to be paid to C.
149. Where deficiency of assets to pay legacies, specific legacy not to abate with general
legacies. If there is a deficiency of assets to pay legacies, a specific legacy is not liable to abate with the
general legacies.
CHAPTER XV.Of Demonstrative Legacies
150. Demonstrative legacy defined. Where a testator bequeaths a certain sum of money, or a
certain quantity of any other commodity, and refers to a particular fund or stock s o as to constitute the
same the primary fund or stock out of which payment is to be made, the legacy is said to be
demonstrative.
Explanation .The distinction between a specific legacy and a demonstrative legacy consists in this,
that
where specified pro perty is given to the legatee, the legacy is specific;
where the legacy is directed to be paid out of specified property, it is demonstrative.
Illustrations
(i) A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He also bequeaths to C 1,000 rupees
to be paid out of the debt due to him from W. The legacy to B is specific, the legacy to C is demonstrative.
53 (ii) A bequeaths to B
ten bushels of the corn which shall grow in my field of Green Acre :
80 chests of the indigo which shall be made at my factory of Rampur :
10,000 rupees out of my five per cent.promissory notes of the Central Government :
An annuity of 500 rupees from my funded property :
1,000 rupees out of the sum of 2,000 rupees due to me by C :
An annu ity, and directs it to be paid out of the rents arising from my taluk of Ramnagar .
(iii) A bequeaths to B
10,000 rupees out of my estate at Ramnagar, or charges it on his estate at Ramnagar:
10,000 rupees, being my share of the capital em barked in a cert ain business.
Each of these bequests is demonstrative.
151. Order of payment when legacy directed to be paid out of fund the subject of specific
legacy. Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of
the sa me fund, the portion specifically bequeathed shall first be paid to the legatee, and the demonstrative
legacy shall be paid out of the residue of the fund and, so far as the residue shall be deficient, out of the
general assets of the testator.
Illustration
A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He also bequeaths to C 1,000 rupees to
be paid out of the debt due to him from W. The debt due to A from W is only 1,500 rupees; of these 1,500 rupees,
1,000 rupees belong to B. and 500 rupees are to be paid to C. C is also to receive 500 rupees out of the general assets
of the testator.
CHAPTER XVI. Of Ademption of Legacies
152. Ademption explained. If anything which has been specifically bequeathed does not belong to
the testator at the time of his death, or has been converted into property of a different kind, the legacy is a
deemed; that is, it cannot take effect, by reason of the subject -matter having been withdrawn from the
operation of the will.
Illustrations
(i) A beq ueaths to B
the di amond ring presented to me by C :
my gold chain :
a certain bale of wool :
a certain piece of cloth :
all my household goods which shall be in or about my dwelling -house in M. Street in Calcutta, at the time
of mydeath.
A in his l ife time,
sells or gives away the ring:
converts the chain into a cup:
converts the wool into cloth:
makes the cloth into a garment:
takes another house into which he removes all his goods.
Each of these legacies is adeemed.
(ii) A bequeaths to B
the sum of 1 ,000 rupees, in a certain chest :
all the horses in my stable .
54 At the death of A, no money is found in the chest, and no horses in the stable. The leg |
in my stable .
54 At the death of A, no money is found in the chest, and no horses in the stable. The legacies are adeemed.
(iii) A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The ship and goods are
lost at sea, and A is drowned. The legacy is adeemed.
153. Non -ademption of demonstrative legacy. A demonstrative legacy is not adeemed by reason
that the property on which it is charged by the will does not exist at the ti me of the death of the testator, or
has been converted into property of a different kind, but it shall in such case be paid out of the general
assets of the testator.
154. Ademption of specific bequest of right to receive something from third party. Where the
thing specifically bequeathed is the right to receive something of value from a third party, and the testator
himself receives it, the bequest is adeemed.
Illustrations
(i) A bequeaths to B
the debt which C owes me :
2,000 rupees which I have in th e hands of D :
the money due to me on the bond of E :
my mortgage on the Rampur factory ,
All these debts are extinguished in A s lifetime, some with and some without his consent. All the legacies are
adeemed.
(ii) A bequeaths to B his interest in certain policies of life assurance. A in his lifetime receives the amount of the
policies. The legacy is adeemed.
155. Ademption pro tanto by testator s receipt of part of entire thing specifically bequeathed.
The receipt by the testator of a part of an entire thing specifically bequeathed shall operate as an
ademption of the legacy to the extent of the sum so received.
Illustration
A bequeaths to B the debt due to me by C . The debt amounts to 10,000 rupees. C pays to A 5,000 rupees the
one-half of the debt. The legacy is revoked by ademption, so far as regards the 5,000 rupees received by A.
156. Ademption pro tanto by testator s receipt of portion of entire fund of which p ortion has
been specically bequeathed .If a portion of an entire fund or stock is specifically bequeathed, the
receipt by the testator of a portion of the fund or stock shall operate as an ademption only to the extent of
the amount so received; and the res idue of the fund or stock shall be applicable to the discharge of the
specific legacy.
Illustration
A bequeaths to B one -half of the sum of 10,000 rupees due to him from W. A in his lifetime receives 6, 000
rupees, part of the 10,000 rupees. The 4,000 rupee s which are due from W to A at the time of his death belong to B
under the specific bequest.
157. Order of payment where portion of fund specifically bequeathed to one legatee, and legacy
charged on same fund to another, and, testator having received porti on of that fund, remainder
insufficient to pay both legacies. Where a portion of a fund is specifically bequeathed to one legatee,
and a legacy charged on the same fund is bequeathed to another legatee, then, if the testator receives a
portion of that fund, and the remainder of the fund is insufficient to pay both the specific and the
demonstrative legacy, the specific legacy shall be paid first, and the residue (if any) of the fund shall be
applied so far as it will extend in payment of the demonstrati ve legacy, and the rest of the demonstrative
legacy shall be paid out of the general assets of the testator.
55 Illustration
A bequeaths to B 1,000 rupees, part of the debt of 2,000 rupees due to him from W. He also bequeaths to C
1,000 rupees to be paid out of the debt due to him from W. A afterwards receives 1[500] rupees, part of that debt,
and dies leaving only 1,500 rupees due to him from W. Of these 1,500 rupees, 1,000 rupees belong to B, and 500
rupees are to be paid to C. C is also to rece ive 500 rupees out of the general assets of the testator.
158. Ademption where stock, specifically bequeathed, does not exist at testator s death. Where
stock which has been specifically bequeathed does not exist at the testator's death, the legacy is adee med.
Illustration
A bequeaths to B
my capital stock of 1,000 in East India Stock :
my promissory notes of the Central Government for 10,000 rupees in their 4 per cent. loan.
A sells the stock and the notes. The legacies are adeemed.
159. Ademption pro tanto where stock, specifically bequeathed, exists in part only at testator's
death. Where stock which has been specifically bequeathed exists only in part at the testator's death, the
legacy is adeemed so far as regards that part of the stock which has ce ased to exist.
Illustration
A bequeaths to B his 10,000 rupees in the 51/2 per cent. loan of the Central Government. A sells one -half of his
10,000 rupees in the loan in question. One -half of the legacy is adee med.
160. Non-ademption of specific bequest of goods described as connected with certain place, by
reason of removal. A specific bequest of goods under a description connecting them with a certain
place is not adeemed by reason that they have been removed from such place from an ytemporary cause,
or by fraud, or without the knowled ge or sanction of the testator.
Illustrations
(i) A bequeaths to B all my households goods which shall be in or about my dwelling -house in Calcutta at the
time of my death . The goods are removed from t he hou se to save them from fire. A dies before they arc brought
back.
(ii) A bequeaths to B all my household goods which shall be in or about my dwelling -house in Calcutta at the
time of my death . During A's absence upon a journey, the whole of the goods are removed from the house. A dies
without having sanctioned their removal.
Neither of these legacies is adeemed.
161. When removal of thing bequeathed does not constitute ademption. The removal of
thething bequeathed from the place in which it is stated in the will to be situated does not constitute an
ademption, where the place is only referred to in order to complete the descriptionof what the testator
meant to bequeath.
Illustrations
(i) A bequeaths to B all the bills, bonds and other securities for money belonging to me now lying in my
lodgings in Calcutta . At the time of his death these effects had been removed from his lodgings in Calcutta.
(ii) A bequeaths to B all his furniture then in his house i n Calcutta. The testator has a house at Calcutta and
another at Chinsurah, in which he lives alternately, being possessed of one set of furniture only which he removes
with himself to each house. At the time of his death the furniture isin the house at Chin surah.
1. Subs. by Act 10 of 1927, s. 2 and the First Schedule , for 5,000 .
56 (iii) A bequeaths to B all his goods on board a certain ship then lying in the river Hugh li. The goods are
removed by A s directions to a warehouse, in which they remain at the time of A's death.
No one of these legacies is revoked by ademption.
162. When thing bequeathed is a valuable to be received by testator from third person; and
testator himself, or his representative, receives it. Where the thing bequeathed is not the right to
receive something of value from a third person, but the money or other commodity which may be
received from the third person by the testator himself or by his representatives, the receipt of such sum of
money or other commodity by the testator shall not constitute an ademption; but if he mixes it up with the
general ma ss of his property, the legacy is adeemed,
Illustration
A bequeaths to B whatever sum may be received from his claim on C. A receives the whole of his claim on C,
and sets it apart from the general mass of his property. The legacy is not adeemed.
163. Chan ge by operation of law of subject of specific bequest between date of will and
testator s death. Where a thing specifically bequeathed undergoes a change between the date of the
will and the testator's death, and the change takes place by operation of law, or in the course of execution
of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not
adeemed by reason of such change.
Illustrations
A bequeaths to B all the money which I have in the 51/2 per cent. loan of the. Central Government .The
securities for the 51/2 per ce nt.loan are converted during A s lifetime into 5 per cent. stock.
A bequeaths to B the sum of 2,000 f invested in Consols in the names of trustees for A. The sum of 2,000
transferred by the truste es into A s own name.
A bequeaths to B the sum of 10,000 rupees in promissory notes of the Central government which he has power
under his marriage settlement to dispose of by will. Afterwards, in A s lifetime, the hind is converted into Consols
by virtue of an authority contained in the settlement.
No one of these legacies has been adeemed.
164. Change of subject without testator s knowledge. Where a thing specifically bequeathed
undergoes a change between the da te of the will and the testator s death, and the change takes place
without the knowledge or sanction of the testator, the legacy is not adeemed.
Illustration
A bequeaths to B all my 3 per cent. Consols . The Consols are, without A s knowledge, sold by his
agent, and the proceeds conver ted into East India Stock. This legacy is not adeemed.
165. Stock specifically bequeathed lent to third party on condition that it be replaced. Where
stock which has been specifically bequeathed is lent to a third party on condition that it shall be replac ed,
and it is replaced accordingly, the legacy is not adeemed.
166. Stock specifically bequeathed sold but replaced, and belonging to testator at his death.
Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwards
purchased and belongs to the testator at his death, the legacy is not adeemed.
CHAPTER XVII Of the payment of liabilities in respect of the subject of a bequest.
167. Non -liability of executor to exonerate specific legatees. (1) Where property specifically
bequeathed is subject at the death of the testator to any pledge, lien or incumbrance created by the testator
himself or by any person under whom he claims, then, unless a contrary intention appears by the will, the
legatee, if he accepts the bequest, sha ll accept it subject to such pledge or incumbrance, and shall (as
between himself and the testator s estate) be liable to make good the amount of such pledge or
incumbrance,
57 (2) A contrary intention shall not be inferred from any direction which the will may contain for the
payment of the testator's debts generally.
Explanation .A periodical payment in the nature of land -revenue or in the nature of rent is not such
an incumbrance as is contemplated by this section.
Illustrations
A bequeaths to B the diamond ring given him by C. At A s death the ring is held in pawn by D to whom it has
been pledged by A. It is the duty of A s executors, if the state of the testator's assets wil l allow them, to allow B to
redeem the ring.
A bequeaths to B a zam indari which at A's death is subject to a mortgage for 10,000 rupees; and the whole of
the principal sum, together with interest to the amount of 1,000 rupees, is due at A's death. B, if he accepts the
bequest, accepts it subject to this charge, and is lia ble, as between himself and A's estate, to pay the sum of 11,000
rupees thus due.
168. Compeletion of testator s title to things bequeathed to be at cost of his estate. Where
anything is to be done to complete the testator's title to the thing bequeathed, it is to be done at the cost of
the testator's estate.
Illustrations
A, having contracted in general terms for the purchase of a piece of land at a certain price, bequeaths to B, and
dies before he has paid the purchase -money. The purchase -money must be ma de good out of A s assets.
A, having contracted for the purchase of a piece of land for a certain sum of money, one -half of which is to be
paid down and the other half secured by mortgage of the land, bequeaths it to B, and dies before he has paid or
secur ed any part of the purchase -money. One -half of the purchase -money must be paid out of A s assets.
169. Exoneration of legatee s immoveable property for which land -revenue or rent payable
periodically. Where there is a bequest of any interest in immovable p roperty in respect of which
payment in the nature of land -revenue or in the nature of rent has to be made periodically, the estate of the
testator shall (as between such estate and the legatee) make good such payments or a proportion of them,
as the case m ay be, up to the day of his death.
Illustration
A bequeaths to B a house, in respect of which 365 rupees are payable annually by way of rent. A pays his rent
at the usual time, and dies 25 days after. A s estate will make good 25 rupees in respect of the r ent.
170. Exoneration of specific legatee s stock in joint -stock company. In the absence of any
direction in the will, where there is a specific bequest of stock in a joint -stock company, if any call or
other payment is due from the testator at the time of his death in respect of the stock, such call or payment
shall, as between the testator's estate and the legatee, be borne by the estate; but, if any call or other
payment becomes due in respect of such stock after the testator's death, the same shall, as between the
testator s estate and the legatee, be borne by the legatee, if he accepts the bequest.
Illustrations
A bequeaths to B his shares in a certain railway. At A s death there was due from him the sum of 100 rupees in
respect of each share, being the amount of a call which had been duly made, and the sum of five rupees in respect of
each share, being the amount of interest which had accrued due in respect of the call. These payments must |
rupees in respect of
each share, being the amount of interest which had accrued due in respect of the call. These payments must be borne
by A s estate.
A has agreed to take 50 shares in an intended joint -stock company, and has contracted to pay up 100 rupees in
respect of each share, which sum must be paid before his title to the shares can be completed. A bequeaths these
shares to B. The estate of A must make good the payments which were ne cessary to complete A s title.
58 (iii)A bequeaths to B his shares in a certain railway. B accepts the legacy. After A's death, a call is made in
respect of the shares. B must pay the call.
(iv) A bequeaths to B his shares in a joint -stock compan y. B accepts the bequest. Afterwards the affairs of the
company are wound up, and each shareholder is called upon for contribution. The amount of the contribution must
be borne by the legatee.
(v) A is the owner of ten shares in a railway company. At a mee ting held during his lifetime a call is made of
fifty rupees per share, payable by three instalments. A bequeaths his shares to B, and dies between the day fixed for
the p ayment of the first and the day fixed for the payment of the second instalment, and w ithout having paid the first
instalment. A s estate must pay the first instalment, and B, if he accepts the legacy, must pay the remaining
instalments.
CHAPTER XVIII. Of Bequests of Things described in General Terms
171. Bequest of thing described in gener al terms. If there is a bequest of something described in
general terms, the executor must purchase for the legatee what may reasonably be considered to answer
the description.
Illustrations
(i) A bequeaths to B a pair of carriage -horses or a diamond ring. The executor must provide the legatee with
such articles if the state of the assets will allow it.
(ii) A bequeaths to B my pair of carriage -horses . A had no carriage horses at the time of his death. The lega cy
fails.
CHAPTER XIX. Of Bequests of the Interest or Produce of a Fund
172. Bequest of interest or produce of fund. Where the interest or produce of a fund is
bequeathed to any person, and the will affords no indication of an intention that the enjoyment of the
bequest should be of limited duration, the principal, as well as the interest, shall belong to the legatee.
Illustrations
(i) A bequeaths to B the interest of his 5 per cent. promissory notes of the Central Government. There is no
other clause in th e will affecting those securities. B is entitled to A s 5 per cent. promissory notes of the Central
Government.
(ii) A bequeaths the interest of his 51/2 per cent. promissory notes of the Central Government to B for his life,
and after his death to C. B is entitled to the interest of the notes during his life, and C is entitled to the notes upon B's
death.
(iii) A bequeaths to B the rents of his lands at X. B is entitled to the lands.
CHAPTER XX.Of Bequests of Annuities
173. Annuity created by will payable for life only unless contrary intention appears by will.
Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a contrary
intention appears by the will, notwithstanding that the annuity is directed to be paid out of the property
generally, or that a sum of money is bequeathed to be invested in the purchase of it.
Illustrations
(i) A bequeaths to B 500 rupees a year. B is entitled during his life to receive the annual sum of 500 rupees.
(ii) A bequeaths to B the sum of 500 rupees monthly. B is entitled during his life to receive the sum of 500
rupees every month.
(iii) A bequeaths an annuity of 500 rupees to B for life, and on B s death to C. B is entitled to an annuity of 500
rupees during his life. C, if he survives B, is entitled to an annuity of 500 rupees from B s death until his own death.
59 174. Period of vesting where will directs that annuity be provided out of proceeds of property,
or out of property generally, or where money bequeathed to be invested in purchase of annuity.
Where the will directs that an annuity shall be provided for any person out of the proceeds of property, or
out of property generally, or where money is bequeathed to be invested in the purchase of any annuity for
any pe rson, on the testator's death, the legacy vests in interest in the legatee, and he is entitled at his
option to have an annuity purchased for him or to receive the money appropriated for that purpose by the
will.
Illustrations
(i) A by his will directs tha t his executors shall, out of his property, purchase an annuity of 1,000 rupees for B.
B is entitled at his option to have an annuity of 1,000 ru pees for his life purchased for him or to receive such a sum
as will be sufficient for the purchase of such an annuity.
(ii) A bequeaths a fund to B for his life, and directs that after Bs death, it shall be laid out in the purchase of an
annuity for C. B and C survive the testator. C dies in B'S lifetime. On B s death the,fund belongs to the
representative of C.
175. Abatement of annuity. Where an annuity is bequeathed, but the assets of the testator are not
sufficient to pay all the legacies given by the will, the annuity shall abate in the same proportion as the
other pecuniary legacies given by the will.
176. W here gift of annuity and residuary gift, whole annuity to be first satisfied. Where there is
a gift of an annuity and a residuary gift, the whole of the annuity is to be satisfied before any part of the
residue is paid to the residuary legatee, and, if nec essary, the capital of the testator's estate shall be applied
for that purpose.
CHAPTER XXI. Of Legacies to creditors and Portioners
177. Creditor prima facie entitled to legacy as well as debt. Where a debtor bequeaths a legacy to
his creditor, and it does not appear from the will that the legacy is meant as a satisfaction of the debt, the
creditor shall be entitled to the legacy, as well as to the amount of the debt.
178. Child prima fa cie entitled to legacy as well as portion. Where a parent, who is under
obligation by contract to provide a portion for a child, fails to do so, and afterwards bequeaths a legacy to
the child, and does not intimate by his will that the legacy is meant as a satisfaction of the portion, the
child shall be entitled to recei ve -the legacy, as well as the portion.
Illustration
A, by articles entered into in contemplation of his marriage with B covenanted that he would pay to each of the
daughters of the intended marriage a portion of 20,000 rupees on her marriage. This covenan t having been broken.
A bequeaths 20,000 rupees to each of the married daughters of himself and B. The legatees are entitled to the benefit
of this bequest in addition totheir portions.
179. No ademption by -subsequent provision for legatee. No bequest shal l be wholly or partially
adeemed by a subsequent provision made by settlement or otherwise for the legatee.
Illustrations
(i) A bequeaths 20,000 rupees to his son B. He afterwards gives to B the sum of 20,000 rupees. The legacy is
not thereby adeemed.
(ii) A bequeaths 40,000 rupees to B, his orphan niece whom he had brought up from her infancy. Afterwards,
on the occasion of B s marriage, A settles upon her the sum of 30,000 rupees. The legacy is not thereby diminished.
CHAPTER XXII. Of Election
180. Circumstances in which ele ction takes place. Where a person, by his will, professes to
dispose of some thing which he has no right to dispose of, the person to whom the thing belongs shall
elect either to confirm such disposition or to dissent from it, and , in the latter case, he shall give up any
benefits which may have been provided for him by the will.
60 181. Devolution of interest relinq uished by owner. An interest relinquished in the circumstances
stated in section 180 shall devolve as if it had not been disposed of by the will in favour of the legatee,
subject, nevertheless, to the charge of making good to the disappointed legatee the amount or value of the
gift attempted to be given to him by the will.
182. Testator s belief as to his owner ship immaterial. The provisions of sections 180 and 181
apply whether the testator does or does not believe that which he professes to dispose of by his will to be
his own.
Illustrations
(i) The farm of Sultanpur was the property of C. A bequeathed it to B , giving a legacy of 1,000 rupees to C. C
has elected to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1,000 rupees, of
which 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest, or devolv es according to
the rules of intestate succession, as the case may be.
(ii) A bequeaths an estate to B in case B s elder brother (who is married and has children) shall leave no issue
living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or to lose
the estate.
(iii) A bequeaths to B 1,000 rupees, and to C an estate which will, under a settlement, belong to B if his elder
brother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estate
or to lose the legacy.
(iv) A, a person of the age of 18, domiciled in 1[India] but owning real property in England, to which C is heir at
law, bequeaths a legacy to C and, subject thereto, devises and bequeaths to B all my property whatsoever and
wheresoever, and dies under 21. The real property in England does not pass by the will. C may claim his legacy
without giving up the real pr operty in England.
183. Bequest for man s benefit how regarded for purpose of electi on.A bequest for a person's
benefit is, for the purpose of election, the same thing as a bequest made to himself.
Illustration
The farm of SultanpurKhurd being the property of B, A bequeathed it to C: and bequeathed another farm called
SultanpurBuzurg to his own executors with a direction that it should be sold and the proceeds applied in payment of
B's debts. B must elect whether he will abide by the will, or keep his farm of SultanpurKhurd in opposition to it.
184. Person deriving benefit indirectly not put to election. A person taking .no benefit directly
under a will, but deriving a benefit under it indirectly, is not put to his election.
Illustration
The lands of Sultanpur are settled upon C for life, and after his death upon D, his only child. A beque aths the
lands of Sultanpur to B, and 1,000 rupees to C. C dies intestate shortly after the testator, and without having made
any election. D takes out administration to C, and as administrator elects on behalf of C s estate to take under the
will. In that capacity he receives the legacy of 1,000 rupees and accounts to B for the rents of the lands of Sultanpur
which accrued after the death of the testator and before the death of C. In his individual character he ratains the
lands of Sultanpur in opposition to the will.
185. Person taking in individual capacity under will may In other character elect to take in
opposition. A person who in his individual capacity takes a benefit under a will may, in another
character, elect to take in opposition to the will.
Illustration
The estate of Sultanpur is settled upon A for life, and after his death, upon B. A leaves the estate of Sultanpur to
D, and 2,000 rupees to B, and 1,000 rupees to C, who is B s only child. B dies intestate, shortly after the testator,
without having made an election. C takes out administration to B, and as administrator elects to keep the estate of
Sultanpur in opposition to the will, and to relinquish the legacy of 2,000 rupees. C may do this, and yet claim his
legacy of 1,000 rupees under the will.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for the States .
61 186. Exception to provisions of last six sections. Notwithstanding anything contained in sections
180 to 185, where a particular gift is expressed in the will to be in lieu of something belonging to the
legatee, which is also in terms disposed of by the will, then, if the legatee claims that thing, he must
relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the will.
Illustration
Under A s marriage -settlement his wife is entitled, if she survives him, to the enjoyment of the estate of
Sultanpur during her life. A by his will bequeaths to his wife an annuity of 200 rupees during her life, in lieu of her
interest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of 1,000
rupees. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity
but not the legacy of 1,000 rupees.
187. When acceptance of benefit given by will constitutes election to take under will.
Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if he
had knowledge of his right to elect and of those circumstances which would influence the judgment of a
reasonable man in making an ele ction, or if he waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called SultanpurKhurd, and has a life interest in anotuer estate called
SultanpurBuzurg to which upon his death his son B will be absolutely entitled. The will of A gives the estate of
SultanpurKhurd to B, and the estate of SultanpurBuzurg to C. B, in ignorance of his own right to the estate of.
SultanpurBuzurg, allows C to take possession of it, and enters into possession of the estate of SultanpurK |
the estate of.
SultanpurBuzurg, allows C to take possession of it, and enters into possession of the estate of SultanpurKhurd. B has
not confirmed the bequest of SultanpurBuzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C, and to B
the residue of A s property. B having been informed by A s executors that the residue will amount to 5,000 rupees,
allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500
rupees. B has not confirmed the bequest of the estate of Sultanpur to C.
188. Circ umstances in which knowledge or waiver is presumed or inferred. (1) Such
knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the
legatee has enjoyed for two years the benefits provided for him by the will withou t doing any act to
express dissent.
(2) Such knowledge or. waiver of inquiry may be inferred from any act of the legatee which renders it
impossible to place the persons interested in the subject -matter of the bequest in the same condition as if
such act h ad not been done.
Illustration
A bequeaths to B an estate to which C is entitled, and to C a coal -mine. C takes possession of the mine and
exhausts it. He has thereby confirmed the bequest of the estate to B.
189. When testator s representatives may call u pon legatee to elect. If the legatee does not,
within one year after the death of the testator, signify to the testator s representatives his intention to
confirm or to dissent from the will, the representatives shall, upon the expiration of that period, r equire
him to make his election; and; if he does not comply with such requisition within a reasonable time after
he has received it, he shall be deemed to have elected to confirm the will.
190. Postponement of election in case of disability. In case of dis ability the election shall be
postponed until the disability ceases, or until the election is made by some competent authority.
CHAPTER XXIII. Of Gifts in Contemplation of Death
191. Property transferable by gift made in contemplation of death. (1) A man m ay dispose, by
gift made in contemplation of death, of any moveable property which he could dispose of by will.
(2) A gift is said to be made in contemplation of death where a man, who is ill and expects to die
shortly of his illness, delivers, to another the possession: of any moveable property to keep as a gift in
case the donor shall die of that illness.
62 (3) Such a gift may be resumed by the giver; and shall not take effect if he recovers from the illness
during which it was made; nor if he survives the person to whom it was made.
Illustrations
(i) A, being il l, and in expectation of death, delivers to B, to be retained by him in case of A s death,
a watch:
a bond granted by C to A:
a bank -note:
a promissory note of the Central Government endorsed in blank:
a bill of exchange endorsed in blank:
certain mortgage -deeds.
A dies of the illness during which he delivered these articles.
B is entitled to
the watch:
the debt secured by C s bond:
the bank -note:
the promissory note of the Central G overnment :
the bill of exchange:
the money secured by the mortgage -deeds.
(ii) A, being ill, and in expectation of death, delivers to B the key of a trunk or the key of a warehouse in which
goods of bulk belonging to A are deposited, with the intention of giving him the control over the contents of the
trunk, or over the deposited goods, and desires him to keep them in case of A s death. A dies of the illness during
which he delivered these articles. B is entitled to the trunk and its contents or to A s goods of bulk in the warehouse.
(iii) A, being ill, and in expectation of death, puts aside certain articles in separate parcels and marks upon the
parcels respectively the names of B and C. The parcels are not delivered during the life of A. A, dies of the illness
during which he set aside the parcels. B and C are not entitled to the contents of the parcels.
PART VII
PROTECTION OF PROPERTY OF DECEASED
192. Person claiming right by succession to property of deceased may apply for relief against
wrongful posse ssion. (1) If any person dies leaving property, moveable or immoveable, any person
claiming a right by succession thereto, or to any portion thereof, may make application to the District
Judge of the district where any part of the property is found or situ ate for relief, either after actual
possession has been taken by another person, or when forcible means of seizing possession are
apprehended.
(2) Any agent, relative or near friends, or the Court of Wards in cases within their cognizance, may,
in the event of any minor, or any disqualified or absent person being entitled by succession to such
property as aforesaid, make the like application for relief.
193. Inquiry made by Judge. The District Judge to whom such application is made shall, in the
first p lace, examine the applicant on oath, and may make such further inquiry, if any, as he thinks
necessary as to whether there is sufficient ground for believing that the party in possession or taking
forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose
behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of
a suit, and that the application is made bona fide.
194. Procedure. If the District Judge is satisfied that there is sufficient ground for believing as
aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant or
disturbed possession by publication, and, after the expiration of a reasonable time, shall determi ne
summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession
accordingly.
63 Provided that the Judge shall have the power to appoint an officer who shall take an inventory of
effects, and seal or o therwise secure the same, upon being applied to for the purpose, without delay,
whether he shall have concluded the inquiry necessary for summoning the party complained of or not.
195. Appointment of curator pending determination of proceeding. If it furth er appears upon
such inquiry as aforesaid that danger is to be apprehended of the misappropriation or waste of the
property before the summary proceeding can be determined, and that the delay in obtaining security from
the party in possession or the insuff iciency thereof is likely to expose the party out of possession to
considerable risk, provided he is the lawful owner, the District Judge may appoint one or more curators
whose authority shall continue according to the terms of his or their respective appo intment, and in no
case beyond the determination of the summary proceeding and the confirmation or delivery of possession
in the consequence thereof:
Provided that, in the case of land, the Judge may delegate to the Collector, or to any officer
subordinate to the Collector, the powers of a curator:
Provided, further, that every appointment of a curator in respect of any property shall be duly
published.
196. Powers conferrable on curator. The District Judge may authorise the curator to take
possession of th e property either generally, or until security is given by the party in possession, or until
inventories of the property have been made, or for any other purpose necessary for securing the property
from misappropriation or waste by the party in possession:
Provided that it shall be in the discretion of the Judge to allow the party in possession to continue in
such possession on giving security or not, and any continuance in possession shall be subject to such
orders as the Judge may issue touching inventori es, or the securing of deeds or other effects.
197. Prohibition of exercise of certain powers by curators. (1) Where a certificate has been
granted under Part X or under the Seccession Certificate Act, 18891 (7 of 1 889), or a grant of probate or
letters of admin istration has been made, a curator appointed under this Part shall not exercise any
authority lawfully belonging to the holder of the certificate or to the executor or administrator.
(2) Payment of debts, etc., to curator. All persons who have paid d ebts or rents to a curator
authorised by a Court to receive them shall be indemnified, and the curator shall be responsible for the
payment thereof to the person who has obtained the certificate, probate or letters of administration, as the
case may be.
198. Curator to give security and may receive remuneration. (1) The District Judge shall take
from the curator security for the faithful discharge of his trust, and for rendering, satisfactory accounts of
the same as hereinafter provided, and may authorise h im to receive out of the property such remuneration,
in no case exceeding five per centum on the moveable property and on the annual profits of the
immoveable property, as the District Judge thinks reasonable.
(2) All surplus money realized by the curator shall be paid into Court, and invested in public
securities for the benefit of the persons entitled thereto upon adjudication of the summary proceeding.
(3) Security shall be required from the curator with all reasonable despatch, and where it is
practicab le, shall be taken generally to answer all cases for which the person may be afterwards appointed
curator; but no delay in the taking of security shall prevent the Judge from immediately investing the
curator with the powers of his office.
1. Rep. partly by Act 39 of 1925, and finally by Act 1 of 1938.
64 199. Report from Collector where estate includes revenue paying land. (1) Where the estate of
the deceased person consists wholly or in part of land paying revenue to Government, in all matters
regarding the propriety of summoning the party in possession, o f appointing a curator, or of nominating
individuals to that appointment, the District Judge shall demand a report from the Collector, and the
Collector shall thereupon furnish the same:
Provided that in cases of urgency the Judge may proceed, in the first instance, without such report.
(2) The Judge shall not be obliged to act in conformity with any such report, but, in case of his acting
otherwise than according to such report, he shall immediately forward a statement of his reasons to the
High Court, and the High Court, if it is dissatisfied with such reasons, shall direct the Judge to proceed
conformably to the report of the Collector.
200. Institution and defence of suits. The curator shall be subject to all orders of the District Judge
regarding the in stitution or the defence of suits, and all suits may be instituted or defended in the name of
the curator on behalf of the estate:
Provided that an express authority shall be requisite in the order of the curator s appointment for the
collection of debts o r rents; but such express authority shall enable the curator to give a full acquittance
for any sums of money received by virtue thereof.
201. Allowances to apparent owners pending custody by curator. Pending the custody of the
property by the curator, the District Judge may make such allowances to parties having a prima facie right
thereto as upon a summary investigation of the right and circumstances of the parties interested he
considers necessary, and may, at his discretion, take security for the repaym ent thereof with interest, in
the event of the party being found, upon the adjudication of the summary proceeding, not to be entitled
thereto.
202. Accounts to be filed by curator. The curator shall file monthly accounts in abstract, and shall,
on the expi ry of each period of three months, if his administration lasts so long, and, upon giving up the
possession of the property, file a detailed account of his administration to the satisfaction of the District
Judge.
203. Inspection of accounts and right of in terested party to keep duplicate. (1) The accounts of
the curator shall be open to the inspection of all parties interested; and it shall be competent for any such
interested party to appoint a separate person to keep a duplicate account of all receipts an d payments by
the curator.
(2) If it is found that the accounts of the curator are in arrear, or that they are erroneous or incomplete,
or if the curator does not produce them whenever he is ordered to do so by the District Judge, he shall be
punishable wi th fine not exceeding one thousand rupees for every such default.
204. Bar to appointment of second curator for same property. If the Judge of any district has
appointed a curator; in respect to the whole of the property of a deceased person, such appointm ent shall
preclude the Judge of any other district within the same State from appointing any other curator, but the
appointment of a curator in respect of a portion of the property of the deceased shall not preclude the
appointment within the same State of another curator in respect of the residue or any portion thereof
Provided that no Judge shall appoint curator or entertain a summary proceeding in respect of property
which is the subject of a summary proceeding previously instituted under this Part before another Judge:
Provided, further, that if two or more curators are appointed by different Judges for several parts of an
estate, the High Court may make such order as it thinks fit for the appointment of one curator of the
whole property.
205. Limit ation of time for application for curator. An application under this Part to the District
Judge must be made within six months of the death of the proprietor whose property is claimed by right in
succession.
65 206. Bar to enforcement of Part aga inst public se ttlement or legal directions by
deceased. Nothing in this Part shall be deemed to authorise the contravention of any public act of
settlement or of any legal directions given by a deceased proprietor of any property for the possession of
his property after his decease in the event of minority or otherwise, and, in every such case, as soon as the
Judge having jurisdiction over the property of a deceased person is satisfied of the existence of such
directions, he shall give ef fect thereto.
207. Court of Wards to be made curator in case of minors having property subject to its
jurisdiction. Nothing in this Part shall be deemed to authorise any disturbance of the possession of a
Court of Wards of any property; and in case a minor , or other disqualified person whose pro perty is
subject to the Court o f Wards, is the party on whose behalf application is made under this Part, the
District Judge, if he determines to summon the party in possession and to appoint a curator, shall invest
the Court of Wards with the curatorship of the estate pending the proceeding without taking security as
aforesaid; and if the minor or other disqualified person, upon the adjudication of the summary proceeding,
appears to be entitled to the property, posse ssion shall be delivered to the Court of Wards.
208. Saving of right to bring suit. Nothing contained in this Part shall be any impediment to the
bringing |
.
208. Saving of right to bring suit. Nothing contained in this Part shall be any impediment to the
bringing of a suit either by the party whose application may have been rejected before or after the
summoning of the party in possession, or by the party who may have been evicted from the possession
under this Part.
209. Effect of decision of summary proceeding. The decision of a District Judge in a summary
proceeding under this Part shall have no other effect th an that of settling the actual possession; but for this
purpose it shall be final, and shall not be subject to any appeal or review.
210. Appointment of public curators. The State Government may appoint public curators for any
district or number of distric ts; and the District Judge having jurisdiction shall nominate such public
curators in all cases where the choice of a curator is left discretionary with him under this Part.
PART VIII
REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON SUCCESSION
211. Character and property of executor or administrator as such. (1) The executor or
administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all
the property of the deceased person vests in - him as such.
(2) Wh en the deceased was a Hindu, Muhammadan, Budhist, Sikh, 1[Jaina or Parsi] or an exempted
person, nothing herein contained shall vest in an executor or administrator any property of the deceased
person which would otherwise have passed by survivorship to so me other person.
212. Right to intestate s property. (1) No right to any part of the property of a person who has
died intestate can be established in any Court of Justice, unless letters of administration have first been
granted by a Court of competent ju risdiction.
(2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh,
Jaina, 2[Indian Christian or Parsi].
213. Right as executor or legatee when established. (1) No right as executor or legatee can be
establishe d in any Court of Justice, unless a Court of competent jurisdiction in 3[India] has granted
probate of the will under which the right is claimed, or has granted letters of administration with the will
or with a copy of an authenticated copy of the will ann exed.
1. Subs. by Act 16 of 1962, s. 2, for or Jaina .
2. Subs. by s. 3, ibid., for or Indian Christian .
3. Subs. by Act 3 of 1951, s. 3 and the Schedule, for the States .
66 1[(2) This section shall not apply in the case of wills made by Muhammadans 2[or Indian Christians] ,
and shall only apply
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the
classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian
Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits
of the 3[ordinary -original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and
where such wills are made outside those limits, in so far as they relate to immovable property situate
within those limits.]
STATE AMENDMENTS
Karela .
Amendment of section 213 .In sub -section (2) of section 213 of the Indian Succession Act,
1925 (Central Act 39 of 1925), after the word Muhammadans, the words or Indian Christians shall
be inserted.
[Vide Kerala Act 1 of 1997 , sec. 2].
214. Proof of representative title a condition precedent to recovery through the Courts of debts
from debtors of deceased persons. (1) No Court shall
(a) pass a decree against a debtor of a deceased person for payment of his debt to a person
claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a
debtor a decree or order for the payment of his debt,
except o n the production, by the person so claiming of
(i) a probate or letters of administration evidencing the grant to him of administration to the estate
of the deceased, or
(ii) a certificate granted under section 31 or section 32 of the Administrator Gener als Act, 1913
(3 of 1913), and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 18894 (7 of 1889), or
(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first
day of May, 1889, having the debt specified therein.
(2) The word debt in sub -section ( 1) includes any debt except rent, revenue or profits payable in
respect of land used for agricultural purposes.
215. Effection certificate of subsequent probate or letters of administration. (1) A grant of
probate or letters of administration in respect of an estate shall be deemed to supersede any certificate
previously grant ed under Part X or under the Succession Certificate Act, 18894 (7 of 1889) or Bombay
Regulation No. VIII of 1827, in respect of any debts or securities included in the estate.
(2) When at the time of the grant of the probate or letters any suit or other pr oceeding instituted by the
holder of any such certificate regarding any such debt or security is pending, the person to whom the
grant is made shall, on applying to the Court in which the suit or proceeding is pending, be entitled to take
the place of the holder of the certificate in the suit or proceeding:
Provided that, when any certificate is superseded under this section, all payments made to the holder
of such certificate in ignorance of such supersession shall be held good against claims under the pro bate
or letters of administration.
216. Grantee of probate or administration alone to sue, etc., until same revoked. After any
grant of probate or letters of administration, no other than the person to whom the same may have been
granted shall have power t o sue or prosecute any suit, or otherwise act as representative of the deceased,
throughout the State in which the same may have been granted, until such probate or letters of
administration has or have been recalled or revoked.
1. Subs. by Act 16 of 1962, s. 4, for sub -section ( 2).
2. Ins. by Act 26 of 2002, s. 3 (w.e.f. 27 -5-2002).
3. Subs. by Act 52 of 1964, s. 3 and the Second Schedule, for ordinary civil jurisdiction.
4. Rep. partly by Act 39 of 1925, and finally by Act 1 of 1938.
67 PART IX
PROBATE , LETTERS OF ADMINISTRATION AND ADMINISTRATION OF ASSETS OF DECEASED
217. Application of Part. Save as otherwise provided by this Act or by any other law for the time
being in force, all grants of probate and letters of administration with the will a nnexed and the
administration of the assets of the deceased in cases of intestate succession shall be made or carried out,
as the case may be, in accordance with the provisions of this Part.
CHAPTER I.Of Grant of Probate and Letters of Administration
218. To whom administration may be granted, where deceased is a Hindu, Muhammadan,
Budhist, Sikh, Jaina or exempted person. (1) If the deceased has died intestate and was a Hindu,
Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be
granted to any person who, according to the rules for the distribution of the estate applicable in the case of
such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court
to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased.
219. Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or ex empted
person. If the deceased has died intestate and was not a person belonging to any of the classes referred
to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled
to obtain letters of administration of his estate and effects in the order and according to the rules
hereinafter stated, namely:
(a) If the deceased has left a widow, administration shall be granted to the widow, unless the
Court sees cause to exclude her, either on the ground of some perso nal disqualification, or because
she has no interest in the estate of the deceased.
Illustrations
(i) The widow is a lunatic or has committed adultery or has been barred by her marriage settlement of all
interest in her husband s estate. There is cause for excluding her from the administration.
(ii) The widow has married again since the decease of her husband. This is not good cause for her exclusion.
(b) If the Judge thinks proper, he may associate any person or persons with the widow in the
administration who would be entitled solely to the administration if there were no widow.
(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit the
administration to the person or persons who would be beneficially entitled to the est ate according to
the rules for the distribution of an intestate s estate:
Provided that, when the mother of the deceased is one of the class of persons so entitled, she shall
be solely entitled to administration.
(d) Those who stand in -equal degree of kin dred to the deceased are equally entitled to
administration.
(e) The husband surviving his wife has the same right of administration of her estate as the widow
has in respect of the estate of her husband.
(f) When there is no person connected with the dece ased by marriage or consanguinity who is
entitled to letters of administration and willing to act, they may be granted to a creditor.
68 (g) Where the deceased has left property in 1[India], letters of administration shall be granted
according to the foregoing rules, notwithstanding that he had his domicile in a country in which the law
relating to testate and intestate succession differs from the law of 1[India].
220. Effect of letters of administration. Letters of administration entitle the administrator to all
rights belonging to the intestate as effectually as if the administration had been granted at the moment
after his death.
221. Acts not validated by administration. Letters of administration do not render valid any
intermediate acts of the administrato r tending to the diminution or damage of the intestate's estate.
222. Probate only to appointed executor .(1) Probate shall be granted only to an executor
appointed by the will.
(2) The appointment may be expressed or by necessary implicat ion.
Illustrations
(i) A wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter -in-law C, and
adds but should the within -named C be not living I do constitute and appoint B my whole and sole executrix . C is
appointed executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in
another codicil are these words, I appoint my nephew my residuary legatee to discharge all lawful demands
against my will and codicils signed of different dates . The nephew is appointed an executor by implication .
223. Persons to whom probate cannot be granted. Probate cannot be granted to any person who
is a minor or is of unsound mind 2[nor to any association of individuals unless it is a company which
satisfies the conditions prescribed by rules to be made 3[,by notification in the Official Gazette] by the
4[State Government] in this behalf].
224. Grant of probate to several executors simultaneously or at different times. When several
executors are appointed, probate may be granted to them all simultaneously or at different times.
Illustration
A is an executor of B's will by express appointment and C an executor of it by implication. Probate may be
granted to A and C at the same time or to A first and then to C, or to C first and then to A.
225. Separate probate of codicil discovered after grant of probate. (1) If a codicil is discovered
after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way
repeals the appointment of executors made by the will.
(2) If differ ent executors are appointed by the codicil, the probate of the will shall be revoked, and a
new probate granted of the will and the codicil together.
226. Accrual of representation to surviving executor. When probate has been granted to several
executors, and one of them dies, the entire representation of the testator accrues to the surviving executor
or executors.
227. Effect of probate. Probate of a will when granted establishes the will from the death of the
testator, and renders valid all intermediate a cts of the executor as such.
228. Administration, with copy annexed, of authenticated copy of will proved abroad. When a
will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the
State, whether within or beyo nd the limits of 5[India], and a properly authenticated copy of the will is
produced, letters of administration may be granted with a copy of such copy annexed.
1. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States."
2. Added by Act 17 of 1931, s. 2. The words "nor, unless the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an
exempted person, to a married woman without the previous con sent of her husband" which originally occurred at the end of
this section had been omitted by Act 18 of 1927, s. 2.
3. Ins. by Act 20 of 1983, s. 2 and Sch. (w.e.f. 15 -3-1984).
4. The words "G.G. in C. have been successively amended by the A.O. 1937 and the A |
. The words "G.G. in C. have been successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
5. Subs. by A.O. 1950, for "His Majesty's Domination".
69 229. Grant of administration where executor has not renounced .When a person appointed an
execu tor has not renounced the executorship, letters of administration shall not be granted to any other
person until a citation has been issued, calling upon the executor to accept or renounce his executorship:
Provided that, when one or more of several execut ors have proved a will, the Court may, on the death
of the survivor of those who have proved, grant letters of administration without citing those who have
not proved.
230. Form and effect of renunciation of executorship. The renunciation may be made orally in
the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude
him from ever thereafter applying for probate of the will appointing him executor.
231. Procedure where executor renounces or fails to accept within time limited. If an executor
renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof,
the will may be proved and letters of administration, with a copy of the will annexed, may be granted to
the pe rson who would be entitled to administration in case of intestacy.
232. Grant of administration to universal or residuary legatees. When
(a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has
died before the testator or before he has proved the will, or
(c) the executor dies after having proved the will, but before he has administered all the estate of
the deceased,
an universal or a residuary legatee may be admitted to prove the will, and letters of administration with
the will annexed may be granted to him of the whole estate, or of so much thereof as may be
unadministered.
233. Right to administration of representative of deceased residuary legatee. When a residuary
legatee who has a beneficial interest survives the testator, but dies before the estate has been fully
administered, his representative has the same right to administration with the will annexed as such
residuary legatee.
234. Gra nt of administration where no executor, nor residuary legatee nor representative of
such legatee. When there is no executor and no residuary legatee or representative of a residuary
legatee, or he declines or is incapable to act, or cannot be found, the pe rson or persons who would be
entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee
having a beneficial interest, or a creditor, may be admitted to prove the will, and letters of administration
may be gr anted to him or them accordingly.
235. Citation before grant of administration to legatee other than universal or residuary.
Letters of administration with the will annexed shall not be granted to any legatee other than an universal
or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned,
calling on the next -of-kin to accept or refuse letters of administration.
236. To whom administration may not be granted. Letters of administration cannot be granted to
any person who is a minor or is of unsound mind, 1[nor to any association of individuals unless it is a
company which satisfies the conditions prescribed by rules to be made 2[by notification in the Official
Gazette,] by the 3[State Government] in this behal f].
1. Added by Act 17 of 1931, s. 2. The words "nor, unless the deceased was a Hindu, Muhammadan, Buddhist, Sikh, or Ja ina or
an exempted person, to a married woman without the previous consent of her husband" which originally occurred at the end of
this section had been omitted by Act 18 of 1927, s. 2.
2. Ins. by Act 20 of 1983, s.2 and Sch. (w.e.f. 15 -3-1984).
3. The wor ds G.G. in C. have been successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
70 1[236A. Laying of rules before State Legislature. Every rule made by the State Government under
section 223 and section 236 shall be laid, as soon as it is made, before the State Legislature.]
CHAPTER IIOf Limited Grants
Grants limited in duration
237. Probate of copy or draft of lost will. When a will has been lost or mislaid since the
testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and
a copy or the draft of the will has been pr eserved, probate may .be granted of such copy or draft,
limited until the original or a properly authenticated copy of it is produced.
238. Probate of contents or lost of destroyed will. When a will has been lost or destroyed and no
copy has been made nor the draft preserved, probate may be granted of its contents if they can be
established by evidence.
239. Probate of copy where original exists. When the will is in the possession of a person residing
out of the State in which application for probate is mad e, who has refused or neglected to deliver it up,
but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that
probate should be granted without waiting for the arrival of the original, probate may be granted of the
copy so transmitted, limited until the will or an authenticated copy of it is produced.
240. Administration until will produced. Where no will of the deceased is forthcoming, but there
is reason to believe that there is a will in existence, letters of administration may be granted, limited until
the will or an authenticated copy of it is produced.
Grants for the use and benefit of others having right
241. Administration , with will annexed, to attorney of absent executor. When any executor
is absent fro m the State in which application is made, and there is no executor within the State
willing to act, letters of administration, with the will annexed, may be granted to the attorney or
agent of the absent executor, for the use and benefit of his principal, limited until he shall obtain
probate or letters of administration granted to himself.
242. Administration, with will annexed to attorney of a absent person who, if present, would be
entitled to administer. When any pers on to whom, if present, letters of a dministration, with the will
annexed, might be granted, is absent from the State, letters of administration, with the will annexed may
be granted to his attorney or agent, limited as mentioned in section .241.
243. Administration to attorney of absent pers on entitled to administer in case of intestacy.
When a person entitled to administration in case of intestacy is absent from the State, and no person
equally entitled is willing to act, letters of administration may be granted to the attorney or agent of t he
absent person, limited as mentioned in section 241.
244. Administration during minority of sole executor or residuary legatee. When a minor is
sole executor or sole residuary legatee, letters of administration, with the will annexed, may be granted to
the legal guardian of such minor or to such other person as the Court may think fit until the minor has
attained his majority at which period, and not before, probate of the will shall be granted to him.
245. Administration during minority of several executors or residuary legatee. When there are
two or more minor executors and no executor who has attained majority, or two or more residuary
legatees and no residuary legatee who has attained majority, the grant shall be limited until one of them
shall h ave attained his majority.
1. Ins. by Act 20 of 1983, s. 2 and the Schedule (w.e.f. 15 -3-1984).
71 246. Administration for use and benefit of lunatic or minor. If a sole executor or a sole universal
or residuary legatee, or a person who would be solely entitled to the estate of the intestate according to the
rule for the distribution of intestates' estates applicable in the case of the deceased, is a minor or lun atic,
letters of administration with or without the will annexed, as the case may be, shall be granted to the
person to whom the care ii)f his estate has been committed by competent authority, or, if there is no such
person, to such other peron as the Cour t may think fit to appoint, for the use and benefit of the minor or
lunatic until he attains majority or becomes of sound mind, as the case may be.
247. Administration pendente li te.Pending any suit touching the validity of the will of a deceased
person o r for obtaining or revoking any probate or any grant of letters of administration, the Court may
appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of
a general administrator, other than the right of di stributing such estate, and every suet. administrator shall
be subject to the immediate control of the Court and shall act under its direction.
Grants for special purposes
248. Probate limited to purpose specified in will.If an executorappointed for any l imited
purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an
attorney or agent to take administration on his behalf, the letters of administration, with the will annexed,
shall be limited accordingly.
249. Administration, with will annexed, limited to particular purpose. If an executor appointed
generally gives an authority to an attorney or agent to prove a will on his behalf, and the authority is
limited to a particular purpose, the letters of administra tion, with the will annexed, shall be limited
accordingly.
250. Administration limited to property in which person has beneficial interest. Where a
person dies, leaving property of which he was the sole or surviving trustee, or in which he had no
beneficia l interest on his own account, and leaves no general representative, or one who is unable or
unwilling to act as such, letters of administration, limited to such property, may be granted to the
beneficiary, or to some other person on his behalf.
251. Admin istration limited to suit. When it is necessary that the representative of a person
deceased be made a party to a pending suit, and the executor, or person entitled to administration is
unable or unwilling to act, letters of administration may be granted t o the nominee of a party in such suit,
limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which
may be commenced in the same or in any other Court between the parties, or any other parties, touching
the mat ters at issue in the said cause or suit, and until a final decree shall be made therein and carried into
complete execution.
252. Administration limited to purpose of becoming party to suit to be brought against
administrator. If, at the expiration of twel ve months from the date of any probate or letters of
administration, the executor or administrator to whom the same has been granted is absent from the State
within which the Court which has granted the probate or letters of administration exercises jurisd iction,
the Court may grant, to any person whom it may think fit, letters of administration limited to the purpose
of becoming and being made a party to a suit to be brought against the executor or administrator, and
carrying the decree which may be made t herein into effect.
253. Administration limited to collection and preservation of deceased s property. In any case
in which it appears necessary for preserving the property of a deceased person, the Court within whose
jurisdiction any of the property is si tuate may grant to. any person, whom such Court may think fit, letters
of administration limited to the collection and preservation of the property of the deceased and to the
giving of discharges for debts due to his estate, subject to the directions of th e Court.
254. Appointment, as administrator, of person other than one who, in ordinary circumstances,
would be entitled to administration. (1) When a person has died intestate, or leaving a will of which
there is no executor willing and competent to act or where the executor is, at the time of the death of such
person, resident out of the State, and it appears to the Court to be necessary or convenient toappoint some
person to administer the estate or any part thereof, other than the person who, in ordinary circumstances,
72 would be entitled to a grant of administration, the Court may, in its discretion, having regard to
consanguinity, amount of interest, the safety of the estate and probability that it will be properly
administered, appoint such person as it thinks fit to be administrator.
(2) In every such case letters of administration may be limited or not as the Court thinks fit,
Grants with exception
255. Probate or administration, with will annexed, subject to exception. Whenever the nature of
the case requires that an exception be made, probate of a will, or letters of administration with the will
annexed, shall be granted subject to such exception.
256. Administration with exception. Whenever the nature of the case requires that an exception be
made, l etters of administration shall be granted subject to such exception.
Grants of the rest
257. Probate or administration of rest. Whenever a grant with exception of probate, or of letters
of adminiStration with or without the will annexed, has been made, the person entitled to probate or
administration of the remainder of the deceased's estate may take a grant of probate or letters of
administration, as the case may be, of the rest of the deceased's estate.
Grant of effects unadministered
258. Grant of effect s unadm inistered. If an executor to whom probate has been granted has died,
leaving a part of the testator's estate unadministered, a new representative may be appointed for the
purpose of administering such part of the estate.
259. Rules as to grants of e ffects unadministered. In granting letters of administration of an estate
not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall
grant letters of administration to those persons only to whore original gra nts might have been made.
260. Administration when limited grant expired and still some part of estate unadministered.
When a limited grant has expired, by efflux of time, or the happening of the event or contingency on,
which it was limited, and there is still some part of the deceased's estate unadministered, letters of
administration shall be granted to those persons to whom original grants might have been made.
CHAPTER III.Alteration and Revocation of Grants
261. What errors may be rectified by Court. Errors in names and descriptions, or in setting forth
the time and place of the deceased s death or the purpose in a limited grant, may be rectified by the Court
and the grant of probate or letters of administration may be altered and amended accordingly.
262. Procedure where codicil discovered after |
the grant of probate or letters of administration may be altered and amended accordingly.
262. Procedure where codicil discovered after grant of administration with will annexed. If,
after the grant of letters of administration with the will annexed, a codicil is discovered, it may be added
to the grant on due proof and identification, and the grant may be altered and amended accordingly.
263. Revocation or annulment for just cause. Thegrant of probate or letters of administration may
be revoked or annulled for just cause.
Explanation .Just cause shall be deemed to exist where
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the
Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to
justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
73 (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to
exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has
exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been iited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of adminis tration to the estate of B, as his widow, but it has since transpired that she was
never married to him.
(v) A has taken administration to the estate of B as if he had die d intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of
executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of
unsound mind.
CHAPTER IV.Of the Practice in granting and revoking Probates andLettersof Administration
264. Jurisdiction of District Judge in granting and revoking probates, etc. (1) The District
Judge shall have jurisdiction in gra nting and revoking probates and letters of administration in all cases
within his district.
(2) Except incrases to which section 57 applies, no Court in any local area beyond the limits ofthe
towns of Calcutta, Madras and Bomba1*** shall, where the decease d is a Hindu,Muhammadan,Buddhist,
Sikh or Jaina or an exempted person, receive applications for probate or letters ofadministration until the
State Government has, by a notification in the Official Gazette, authorised it so to do.
265. Power to appoint del egate of District Judge to deal with non -contentious cases. (1) The
High Court may appoint such judicial officers within any district as it thinks fit to act for the District
Judge as delegates to grant probate and letters of administration in non -contenti ous cases, within such
local limits as it may prescribe:
Provided that, in the case of High Courts not established by Royal Charter, such appointments shall
not be without the previous sanction of the State Government.
(2) Persons so appointed shall be cal led District Delegates .
STATE AMENDMENT
Karnataka
Amendment of Central Act 39 of 1925 .In the Indian Succession Act, 1925 (Central Act 39 of
1925) as in force in the State of Karnataka, section 265 shall be omitted.
[Vide Karnataka Act 28 of 1978, s. 4].
266. District Judge s powers as to grant of probate and administration. The District Judge shall
have the like powers and authority in relation to the granting of probate and letters of administration and
all matters connected therewith, as are by law ves ted in him in relation to any civil suit or proceeding
pending in his Court.
267. District Jud ge may order person to produce testamentary papers. (1) The District Judge
may order any person to produce and bring into Court any paper or writing, being or pur porting to be
testamentary, which may be shown to be in the possession or under the control of such person.
(2) If it is not shown that any such paper or writing is in the possession or under the control of such
person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court
may direct such person to attend for the purpose of being examined respecting the same.
1. The words and the province of Burma omitted by the A.O. 1937.
74 (3) Such person shall be bound to answer truly such question as may be put to him by the Court, and,
if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment
under the Indian Penal Code (45 of 1860), in case of default in not attending or in notanswering such
question or not bringing in such paper or writing, as he would have been subject to in case he had been a
party to a suit and had made such default.
(4) The costs of the proceeding shall be in the discretion of the Judge.
268. Proceedings of District Judge s Court in relation to probate and administration. The
proceeding of the Court of the District Judge in relation to the granting of probate and letters of
administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of
the case permit, by the Code of Civil Procedu re, 1908 (5 of 1908).
269. When and how District Judge to interfere for protection of property. (1) Until probate is
granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge,
within whose jurisdiction a ny part of the property of the deceased person is situate, is authorised and
required to interfere for the protection of such property at the instance of any person claiming to be
interested therein, and in all other cases where the Judge considers that th e property incurs any risk of loss
or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the
property,
(2) This section shall not apply when the deceased' is a Hindu, Muhammadan, Buddhist, Sikh or Jaina
or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died
intestate.
270. When probate or administration may be granted by District Judge. Probate of the will or
letters of administration to the estate of a dece ased person may be granted by a District Judge under the
seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the
same that the testator or intestate, as the case may be, at the time of his decease ha d a fixed place of
abode, or any property, moveable or immoveable, within the jurisdiction of the Ridge.
271. Disposal of application made to Judge of district in which deceased had no fixed abode.
When the application is made to the Judge of a district in which the deceased had no fixed abode at the
time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it
could be disposed of more justly or conveniently in another district, or, where the applicat ion is for letters
of administration, to grant them absolutely, or limited to the property within his own jurisdiction.
272. Probate and letters of administration may be granted by Delegate. Probate and letters of
administration may, upon application for that pur pose to any District Delegate, be granted by him in any
case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the
testator or intestate, as the case may be, at the time of his death had a fixed place of abo de within the
jurisdiction of such Delegate.
273. Conclusiveness of probate or letters of administration. Probate or letters of administration
shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout
the State in which the same is or are granted, and shall be conclusive as to the representative title against
all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full
indemnity to all debtors, paying their debts and all persons delivering up such property to the person to
whom such probate or letters of administration have been granted:
Provided that probates and letters of administration granted
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode
situate within the jurisdiction of such Judge, and such Judge certifies that the value of the propertyand
estate affected beyond the limits of the State does not ex ceed ten thousand rupees,shal l, unless
otherwise directed by the gran t, have like effect throughout 1[the other States 2***].
1. Subs. by the A.O. 1948, for the whole of British India .
2. The words of India omitted by the A.O. 1950.
75 1[The proviso to this section shall apply in 2[India] 3after the separation of Burma and Aden from
India to probates and letters of administration granted in Burma and Aden before the date of the
separation, or after that date in proceedings which were pending at that date.]
4[The proviso shall also apply in 2[India] 5*** 6after the separation of Pakistan from India to probates
and letters of administration granted before the date of the separation, or after that date in procedings
pending at that date, in any of the territories which on that date constituted Pakistan.]
274. Transmission to High Courts of certificate of grants under proviso to section 273. (1)
Where probate or letters of administration has or have been granted by a High Court or District Judge
with the effect referred to in the proviso to section 273, the High Court or District Judge shall send a
certificate thereof t o the following Courts, namely:
(a) when the grant has been made by a High Court, to each of the other High Courts;
(b) when the grant has been made by a District Judge, to the High Court to which such District
Judge is subordinate and to each of the othe r High Courts.
(2) Every certificate referred to in sub -section ( 1) shall be made as nearly as circumstances admit in
the form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.
(3) Where any portion of the assets has been stated by the petitioner, as hereinafter provided in
sections 276 and 278, to be situate within the jurisdiction of a District Judge in another State, the Court
required to send the certificate referred to in sub -section ( 1) shall send a co py thereof to such District
Judge, and such copy shall be filed by the District Judge receiving the same.
275. Conclusiveness of application for probate or administration if properly made and
verified. The application for probate or letters of administrati on, if made and verified in the manner
hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or
administration; and no such grant shall be impeached by reason only that the testator or intestate had no
fixed place of abode or no property within the district at the time of his death, unless by a proceeding to
revoke the grant if obtained by a fraud upon the Court.
276. Petition for probate. (1) Application for probate or for letters of administration, with the will
annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in
proceedings before the Court in which the application is made, with the will or, in the cases mentioned in
sections 237, 238 and 239, a copy, draft, or st atement of the contents thereof, annexed, and stating
(a) the time of the testator s death,
(b) that the writing annexed is his last will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner s hands, and
(e) when the application is for probate, that the petitioner is the executor named in the will.
(2) In addition to these particulars, the petition shall further state,
(a) when the application is to the District Judge, that the deceased at the time of his death had a
fixed place of abode, or had some property, situate within the jusrisdiction of the Judge; and
1. Ins. by the A.O. 1937.
2. Subs. by Act 3 of 1951, s. 3 and Sch., for the States.
3. 1st April, 1937.
4. Added by the A.O. 1948.
5. The words of India omitted by Act 42 of 1953, s. 4 and Sch. III.
6. 15th August, 1947.
76 (b) when the application is to a District Delegate, that the deceased at the time of his death had a
fixed place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely to come to t he
petitioner's hands is situate in another State, the petition shall further state the amount of such assets in
each State and the District Judges within whose jurisdiction such assets are situate.
277. In what cases translation of will to be annexed to p etition. Verification of translation by
person other than Court translator. In cases wherein the will, copy or draft, is written in any
language other than English or than that in ordinary use in proceedings before the Court, there shall be a
translation t hereof annexed to the petition by a translator of the Court, if the language be one for which a
translator is appointed; or, if the will, copy or draft, is in any other language, then by any person
competent to translate the same, in which case such transl ation shall be verified by that person in the
following manner, namely:
I (A.B.) do declare that I read and perfectly understand the language and character of the
original, and that the above is a true and accurate translation thereof.
278. Petition for letters of administration. (1) Application for letters of administration shall be
made by petition distinctly written as aforesaid and stating
(a) the time and place of the deceased's death;
(b) the family or other relatives of the deceased, and their respective residences;
(c) the right in which the petitioner claims;
(d) the amount of assets which are likely to come to the petitioner's hands;
(e) when the application is to the District Judge, that the deceased at the time of his death had a
fixed plac e of abode, or had some property, situate within the jurisdiction of the Judge; and
(f) when the application is to a District Delegate, that the deceased at the time of his death had a
fixed place of abode within the jurisdiction of such Delegate.
|
legate, that the deceased at the time of his death had a
fixed place of abode within the jurisdiction of such Delegate.
(2) Wher e the application is to the District Judge and any portion of the assets likely to come to the
petitioner s hands is situate in another State, the petition shall further state the amount of such assets in
each State and the District Judges within whose jur isdiction such assets are situate.
279. Addition to statement in petition, etc., for probate or letters of administration in certain
cases. (1) Every person applying to any of the Courts mentioned in the proviso to section 273 for
probate of a will or lett ers of administration of an estate intended to have effect throughout 1[India], shall
state in his petition, in addition to the matters respectively required by section 276 and section 278, that to
the best of his belief no application has been made to any other Court for a probate of the same will or for
letters of administration of the same estate, intended to have such effect as last aforesaid,
or, where any such application has been made, the Court to which it was made, the person or persons by
whom it was made and the proceedings (if any) had thereon.
(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks
fit, reject the same.
280. Petition for probate, etc., to be signed and verified. The petition for pro bate or letters of
administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be
verified by the petitioner in the following manner, namely:
I (A.B.), the petitioner in the above petition, declare that what is s tated therein is true to the best
of my information and belief.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for the States .
77 281. Verification of petition for probate, by one witness to will. Where the application is for
probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in
the manner or to the effect following, namely:
I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above
petition, declare that I was present and saw the said testator affix his s ignature (or mark) thereto (or
that the said testator acknowledged the writing annexed to the above petition to be his last will and
testament in my presence).
282. Punishment for false averment in petition or declaration. If any petition or declaration
which is hereby required to be verified contains any averment which the person making the verification
knows or believes to be false, such person shall be deemed to have committed an offence under section
193 of the Indian Penal Code (45 of 1860).
283. Pow ers of District Judge. (1) In all cases the District Judge or District Delegate may, if he
thinks proper,
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or the right of the petitioner to the
letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the
deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) The citat ion shall be fixed up in some conspicuous part of the courthouse, and also in the office of
the Collector of the district and otherwise published or made known in such manner as the Judge or
District Delegate issuing the same may direct.
(3) Where any port ion of the assets has been stated by the petitioner to be situate within the
jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of
the citation to be sent to such other District Judge, who shall publis h the same in the same manner as if it
were a citation issued by himself, and shall certify such publication to the District Judge who issued the
citation.
284. Caveats against grant of probate or administration. (1) Caveats against the grant of probate
or administration may be lodged with the District Judge or a District Delegate.
(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to
the District Judge.
(3) Immediately on a caveat being entered with the Distri ct Judge, a copy thereof shall be given to the
District Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode at
the time of his death, and to any other Judge or District Delegate to whom it may appear to the Dis trict
Judge expedient to transmit the same.
Form of caveat. (4) The caveat shall be made as nearly as circumstances admit in the form set forth
in Schedule V.
285. After entry of caveat, no proceeding taken on petition until after notice to caveator. No
proceeding shall be taken on a petition for probate or letters of administration after a caveat against the
grant thereof has been entered with the Judge or District Delegate to whom the application has been made
or notice has been given of its entry with so me other Delegate, until after such notice to the person by
whom the same has been entered as the Court may think reasonable.
286. District Delegate when not to grant probate or administration. A District Delegate shall
not grant probate or letters of admi nistration in any case in which there is contention as to the grant, or in
which it otherwise appears to him that probate or letters of administration ought not to be granted in his
Court.
Explanation .Contention means the appearance of any one in person , or by his recognizedagent,
or by a pleader duly appointee to act on his behalf, to oppose the proceeding.
78 287. Power to transmit statement to District Judge in doubtful cases where no contention. In
every case in which there is no contention, but it appe ars to the District Delegate doubtful whether the
probate or letters of administration should or should not be granted, or when any question arises in
relation to the grant, or application for the grant, of any probate or letters of administration, the Dis trict
Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who
may direct the District Delegate to proceed in the matter of the application, according to such instructions
as to the Judge may seem necessa ry, or may forbid any further proceeding by the District Delegate in
relation to the matter of such application, leaving the party applying for the grant in question to make
application to the Judge.
288. Procedure where there is contention of District Delegate thinks probate or letters of
administration should be refused in his Court. In every case in which there is contention, or the
District Delegate is of opinion that the probate or letters of administration should be refused in his Court,
the petiti on, with any documents which may have been filed therewith, shall be returned to the person by
whom the application was made, in order that the same may be presented to the District Judge, unless the
District Delegate thinks it necessary, for the purposes of justice, to impound the same, which he is hereby
authorised to do; and, in that case, the same shall be sent by him to the District Judge.
289. Grant of probate to be under seal of Court. When it appears to the District Judge or District
Delegate that p robate of a will should be granted, he shall grant the same under the seal of his Court in the
form set forth in Schedule VI.
290. Grant of letters of administration to be under seal of Court. When it appears to the District
Judge or District Delegate that letters of administration to the estate of a person deceased, with or without
a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the
form set forth in Schedule VII.
291. Administration -bond. (1) Every per son to whom any grant of letters of administration, other
than a grant under section 241, is committed, shall give a bond to the District Judge with one or more
surety or sureties, engaging for the due collection, getting in, and administering the estate o f the deceased,
which bond shall be in such form as the Judge may, by general or special order, direct.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person
(a) the exception made by sub -section ( 1) in respect of a grant under section 241 shall not
operate.
(b) the District Judge may demand a like bond from any person to whom probate is granted.
292. Assignment of administration -bond. The Court may, on application made by petition and on
being satisfied that the engagement of any such bond has not been kept, and upon such terms as to
security, or providing that the money received be paid into Court, or otherwise, as the Court may think fit,
assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on
the said bond in his or their own name or names as if the same had been originally given to him or them
instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all persons
interested, the full amount recoverable in respect of any breach thereof,
293. Time for grant of probate and administration. No probate of a will shall be granted until
after the expiration of seven clear days, and no letters of administration shall be granted until after the
expiration of fourteen clear days, from the day of the testator or intestate s death.
294. Filing of original wills of which probate or administrat ion with will annexed granted. (1)
Every District Judge, or District Delegate, shall file and prese rve all original wills, of which probate or
letters of administra tion with the will annexed may be granted by him, among the records of his Court,
until some public registry for wills is established.
79 (2) The State Government shall make regulat ions for the preservation and inspection of the wills so
filed.
295. Procedure in contentious cases. In any case before the District Judge in which there is
contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the
provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters
of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose
the grant shall be the defendant.
296. Surrender of revoked probate or letters of administration .(1) When a grant of probate or
letters of administration is revoked or annulled under this Act, the person to whom the grant was made
shall forthwith deliver up the probate or letters to the Court which made the grant.
(2) If such person willfully and without reasonable cause omits so to deliver up the probate or letters,
he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a
term which may extend to three months, or with both.
297. Payment to executor or administrator before probate or administration revoked. When a
grant of probate or letters of administration is revoked, all payments bona fide made to any executor or
administrator under such gran t before the revocation thereof shall, notwithstanding such revocation, be a
legal discharge to the person making the same; and the executor or administrator who has acted under any
such revoked grant may retain and reimburse himself in respect of any paym ents made by him which the
person to whom probate or letters of administration may afterwards be granted might have lawfully made.
298. Power to refuse letters of administration. Notwithstanding anything hereinbefore contained,
it shall, where the deceased ' was a Muhammadan, Buddhist or exempted person, or a Hindu, Sikh or Jaina
to whom section 57 does not apply, be in the discretion of the Court to make an order refusing, for
reasons to be recorded by it in writing, to grant any application for letters of administration made lousier
this Act.
299. Appeals from orders of District Judge. Every order made by a District Judge by virtue of the
powers hereby conferred upon him shall be subject to appeal to the High. Court in accordance with the
provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals.
300. Concurrent jurisdiction of High Court. (1) The High Court shall have concurrent
jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District
Judge.
(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent
jurisdicti on hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and
Bombay 1*** shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an
exempted person, receive applications for probate or letters of administration until the State Government
has by a notification in the Official Gazette, authorised it so to do.
301. Remov al of executor or administ rator and provision for successor. The High Court may,
on application made to it, suspend, remove or discharge any private executor or administrator and provide
for the succession of another person to the office of any' such executor or admi nistrator wh o may cease to
hold office, and the vesting in such successor of any property belonging to the estate.
302. Directions to executor or administrator. Where probate or letters of administration in
respect of any estate has or have been granted under this Act, t he High Court may, on application made to
it, give to the executor or administrator any general or special directions in regard to the estate or in
regard to the administration thereof.
1. The words and the province of Burma omitted by the A.O. 1937.
80 CHAPTER V.Of Executors of their own Wrong
303. Executor of his own wrong. A person who intermeddles with the estate of the deceased or
does any other act which belongs to the office of executor, while there is no rightful executor or
administrator in existence, thereby makes himself an executor of his own wrong.
Exceptions .(1) Intermeddling with the goods of the deceased for the purpose of preserving them or
providing for his funeral or for the immediate necessities of his family or property, does not make an
executor of his own wrong.
(2) Dealing in t he ordinary course of business with goods of the deceased received from another does
not make an executor of his own wrong.
Illustrations
(i) A uses or gives away or sells some of the goods of the deceased, or takes them to satisfy his own debt or
legacy or receives payment of the debts of the deceased. He is an executor of his own wrong.
(ii) A, having been appointed agent by the deceased in h is lifetime to collect his debts and sell his goods,
continues to do so after he has become aware of his death. He is an executor of his own wrong in respect of acts
done after he has become aware of the death of the deceased.
(iii) A sues as executor of t he deceased, not being such. He is an executor of his own wrong.
304. Liability o f executor of his own wrong .When a person has so acted as |
an executor of his own wrong.
304. Liability o f executor of his own wrong .When a person has so acted as to become an
executor of his own wr ong, he is answerable to the rightful executor or administrator, or to any credit or or
legatee of the deceased, to the extent of the assets which may have come to his hands after deducting
payments made to the rightful executor or administrator, and payments made in due course of
administration.
CHAPTER VI.Of the Powers of an Executor or Administrator
305. In respect of causes of action surviving deceased and debts due at death. An executor or
administrator has the same power to sue in respect of all causes of action that survive the deceased, and
may exercise the same power for the re covery of debts as the deceased had when living.
306. Demands and rights of action of or against deceased survive to and against executor or
administrator. All demands whatsoever and all rights to prosecute or defend any action or special
proceeding existing in favour of or against a person at the time of his decease, survive to and against his
executors or administrators; except causes of action for defamati on, assault, as defined in the Indian Penal
Code (45 of 1860), or other personal injuries not causing the death of the party; and except also cases
where, after the death of the party, the relief sought could not be enjoyed or granting it would be
nugatory .
Illustrations
(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger
is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. action does not
survive .
(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.
307. Power of executor or administrator to dispose of property. (1) Subject to the provisions of
sub-section ( 2), and executor or administrator has power to disp ose of the property of the deceased,
vested in him under section 211, either wholly or in part, in suchmanner as he may think fit.
Illustrations
(i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the
bequest, sells the subject of it. The sale is valid.
(ii) The executor in the exercise of his discretion mortgages a part of the immoveable estate of the deceased.
The mortgage is valid.
81 (2) If the deceased was a Hindu, Muhammad an, Buddhist, Sikh or Jaina or an exempted person, the
general power conferred by sub -section ( 1) shall be subject to the following restrictions and conditions,
namely:
(i) The power of an executor to dispose of immovable property so vested in him is subject to any
restriction which may be imposed in this behalf by the Will appointing him, unless probate has been
granted to him and the Court which granted the probate permits him by an order in writing,
notwithstanding the restriction, to dispose of any immovable prop erty specified in the order in a
manner permitted by the order.
(ii) An administrator may not, without the previous permission of the Court by which the letters
of administration were granted,
(a) mortgage, charge or transfer by sale, gift, exchange or ot herwise any immovable property
for the time being vested in him under section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in contravention of clause ( i) or clause
(ii), as the case may be, is voidable at the instance of any other person interested in the property.
(3) Before any probate or letters of administration is or are granted in such a case, there shall be
endorsed thereon or annexed thereto a copy of sub -section ( 1) and clauses ( i) and ( iii) of sub -section ( 2)
or of sub -section ( 1) and clauses ( ii) and ( iii) of sub -section ( 2), as the case may be.
(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement
or annexure requi red by sub -section ( 3) not having been made thereon or attached thereto, nor shall the
absence of such an endorsement or annexure authorise an executor or administrator to act otherwise than
in accordance with the provisions of this section.
308. General powers of administration. An executor or administrator may, in addition to, and not
in derogation of any other powers of expenditure lawfully exercisable by him, incur expenditure
(a) on such acts as may be necessary for the proper care or management of a ny property
belonging to any estate administered by him; and
(b) with the sanction of the High Court, on such religious, charitable and other objects, and on
such improvements, as may be reasonable and proper in the case of such property.
309. Commission or agency charges. An executor or administrator shall not be entitled to receive
or retain any commission or agency charges at a higher rate than that for the time being fixed in respect of
the Administrator -General by or under the Administrator -General s Act, 1913 (3 of 1913).
310. Purchase by executor or administrator of deceased s property. If any executor or
administrator purchases, either directly or indirectly, any part of the property of the deceased, the sale is
voidable at the instance of any other person interested in the property sold.
311. Powers of several executors or administrators exercisable by one. When there are several
executors or administrators, the powers of all may, in the absence of any direction to the contrary, be
exercised by any one of them who has proved the Will or taken out administration.
Illustrations
(i) One of several executors has power to release a debt due to the deceased.
(ii) One has power to surrender a lease.
(iii) One has power to sell the property of the deceased whether movable or immovable.
(iv) One has power to assent to a legacy.
(v) One has power to endorse a promissory note payable to the deceased.
(vi) The Will appoints A, B, C and D to be executors, and directs that two of them shall be a quorum. No act can
be done by a single executor.
82 312. Survival of powers on death of one of several executors or administrators. Upon the death
of one or more of several executors or administrators, in the absence of any direction to the contrary in
the will or grant of letters of administration, all the powers of the office become vested in the survivors or
survivor.
313. Powers of administrator of effects unadministered. The administrator of effects
unadministered has, with respect to such effects, the same po wers as the original executor or
administrator.
314. Powers of administrator during minority. An administrator during minority has all the
powers of an ordinary administrator:
315. Powers of married executrix or administratrix. When a grant of prob ate or l etters of
administration has been made to a married woman, she has all the powers of an ordinary executor or
administrator.
CHAPTER VII.Of the Duties of an Executor or Administrator
316. As to deceased s funeral. It is the duty of an executor to provide f unds for the performance of
the necessary funeral ceremonies of the deceased in a manner suitable to his condition, if he has left
property sufficient for the purpose.
317. Inventory and account. (1) An executor or administrator shall, within six months fr om the
grant of probate or letters of administration, or within such further time as the Court which granted the
probate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of. all
the property in possession, and all the credits, and also all the debts owing by any person to which the
executor or administrator is entitled in that character; and shall in like manner, within one year from the
grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing
the assets which have come to his hands and the manner in which they have been applied or disposed of.
The High Court may prescribe the form in which an inventory or account under this section is to be
exhibited.
If an execu tor or administrator, on being required by the Court to exhibit an inventory or account
under this section, intentionally omits to comply with the requisition, he shall be deemed to have
committed an offence under section 176 of the Indian Penal Code (45 o f 1860).
The exhibition of an intentionally false inventory or account under this section shall be deemed to be
an offence under section 193 of that Code.
318. Inventory to include property in any part of India in certain cases. in all cases where a
grant has been made of probate or letters of administration intended to have
effect throughout 1[India] 2***, the executor or administrator shall include in the inventory of the
effects of the deceased all his moveable and immoveable property situate in '[India ], and the value of such
property situate in each state shall be separately stated in such inventory, and the probate or letters of
administration shall be chargeable with a fee corresponding to the entire amount or value of the property
affected thereby w heresoever situate within 1[India].
319. As to property of, and debts owing to, deceased. The executor or administrator shall collect,
with reasonable diligence, the property of the deceased and the debts that were due to him at the time of
his death.
320. Expenses to be paid before all debts. Funeral expenses to a reasonable amount, according to
the degree and quality of the deceased, and death -bed charges, including fees for medical attendance, and
board and lodging for one month previous to his death, sh all be paid before all debts.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for the St ates.
2. The words of India omitted by Act 48 of 1952, s. 3 and the Second Schedule.
83 321. Expenses to be paid next after such expenses. The expenses of obtaining probate or letters of
administration, including the costs incurred for or in respect of any judicial proceedings that may be
necessary for administeri ng the estate, shall be paid next after the funeral expenses and death -bed charges.
322. Wages for certain services to be next paid, and then other debts. Wages due for services
rendered to the deceased within three months next preceding his death by any l abourer, artizan or
domestic servant shall next be paid, and then the other debts of the deceased according to their respective
priorities (if any).
323. Save as aforesaid, all debts to be paid equally and rateably. Save as aforesaid, no creditor
shall hav e a right of priority over another; but the executor or administrator shall pay all such debts as he
knows of, including his own, equally and rateably as far as the assets of the deceased will extend.
324. Application of moveable property to payment of deb ts where domicile not in India. (1) If
the domicile of the deceased was not in 1[India], the application of his moveable property to the payment
of his debts is to be regulated by the law of 1[India].
(2) No creditor who has received payment of a part of h is debt by virtue of sub -section ( 1) shall be
entitled to share in the proceeds of the immoveable estate of the deceased unless he brings such payment
into account for the benefit of the other creditors.
(3) This section shall not apply where the deceased was a Hindu, Muhammadan, Buddhist, Sikh or
Jaina or an exempted person.
Illustration
A dies, having his domicile in a country where instruments under seal have priority over instruments not under
seal leaving moveable property to the value of 5,000 rupees, and immoveable property to the value of 10,000 rupees,
debts on instruments under se al to the amount of 10,000 rupees, and debts on instruments not under seal to the same
mount. The creditors holding instruments under seal received half of their debts out of the proceeds of the moveable
estate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not under
seal until one -half of such debts have been discharged. This will leave 5,000 rupees which are to be distributed
rateably amongst all the creditors without distinction, in proportion to the amoun t which may remain due to them.
325. Debts to be paid before legacies. Debts of every description must be paid before any legacy.
326. Executor or administrator not bound to pay legacies without indemnity. If the estate of the
deceased is subject to any co ntingent liabilities, an executor or administrator is not bound to pay any
legacy without a sufficient indemnity to meet the liabilities whenever they may become due.
327. Abatement of general legacies. If the assets, after payment of debts, necessary expe nses and
specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be
diminished in equal proportions, and, in the absence of any direction to the contrary in the will, the
executor has no right to pay one leg atee in preference to another, or to retain any money on account of a
legacy to himself or to any person for whom he is a trustee.
328. Non-abatement of specific legacy when assets sufficient to pay debts. Where there is a
specific legacy, and the assets a re sufficient for the payment of debts and necessary expenses, the thing
specified must be delivered to the legatee without any abatement.
329. Right under demonstrative legacy when assets sufficient to pay debts and necessary
expenses. Where there is a de monstrative legacy, and the assets are sufficient for the payment of debts
and necessary expenses, the legatee has a preferential claim for payment of Isis legacy out of the fund
from which the legacy is directed to be paid until such fund is exhausted and if, after the fund is
exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder against the
general assets as for a legacy of the amount of such unpaid remainder.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".
84 330. Rateable abatement of specific legaci es.If the assets are not sufficent to answer the debtsand
the specific legacies, an abatement shall be made from the latter rateably in proportion to their respective
amounts.
Illustration
A has bequeathed to B a diamond ring valued at 500 rupees, and to C a horse, valued at 1,000 rupees. It. is
found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only 1,000 rupees. Of
this sum rupees 333 -5-4 are to be paid to B, and rupees 666 |
. Of
this sum rupees 333 -5-4 are to be paid to B, and rupees 666 -10-8 to C.
331. Legacies treate d as general for purpose of abatement. For the purpose of abatement, a
legacy for life, a sum appropriated by the will to produce an annuity, and the value of an annuity whe n no
sum has been appropriated to produce it, shall be treated as general legacies.
CHAPTER VIII. Ofassent to a legacy by Executor or Administrator
332. Assent necessary to complete legatee s title. The assent of the executor or administrator is
necessary to complete a legatee's title to his legacy.
Illustrations
(i) A by his will bequeaths to B his Government paper which is in deposit with the Imperial Bank of India. The
Bank has no authority to deliver the securities, nor B a right to take possession of them, without the assent of the
executor.
(ii) A by - his will has bequeathed t o C his house in Calcutta in the tenancy of B. C is not entitled to receive the
rents without the assent of the executor or administrator.
333. Effect of executor s assent to specific legacy. (1) The assent of the executor oradministrator
to a specific beq uest shall be sufficient tb divest his interest as executor or administrator therein, and to
transfer the subject of the bequest of the legatee, unless the nature or the circumstances of the property
require that it shall be transferred in a particular way .
(2) This assent may be verbal, and it may be either express or implied from the conduct of the
executor or administrator.
Illustrations
(i) A horse is bequeathed. The executor requests the legatee to dispose of it, or a third party proposes to
purchase t he horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied.
(ii) The interest of a fund is directed by the will to be applied for the maintenance of the legatee during his
minority. The executor commences so to apply it. This is an assent to the whole of the bequest.
(iii) A bequest is made of a fund to A and after him to B. The executor pays the interest of the fund to A. This is
an implied assent to the bequest to B.
(iv) Executors die after paying all the debt s of the testator, but before satisfaction of specific legacies. Assent to
the legacies may be presumed.
(v) A person to whom a specific article has been bequeathed takes possession of it and retains it without any
objection on the part of the executor. Hi s assent may be presumed.
334. Conditional assent. The assent of an executor or administrator to a legacy may be conditional,
and if the condition is one which he has a right to enforce, and it is not performed, there is no assent.
Illustrations
(i) A bequeaths to B his lands of Sultanpur, which at the date of the will, and at the death of A, were subject to a
mortgage for 10,000 rupees. The executor assents to the bequest, on condition that B shall within a limited time pay
the amount due on the mort gage at the testator's death. The amount is not paid. There is no assent.
(ii) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The payment
is not made. The assent is nevertheless valid.
85 335. Assent of executor to his own legacy. (1) When the executor or administrator is a legatee, his
assent to his own legacy is necessary to complete his title to it, in the same way as it is required when the
bequest is to another person, and his assent may, in like manner, be expressed or implied.
(2) Assent shall be implied if in his manner of administering the property he does any act which is
referable to his character of legatee and is not referable to his character of executor or administrator.
Illustration
An executor takes the rent of a house or the interest of Government securities bequeathed to him and applied it
to his own use. This is assent.
336. Effect of executor s assent. The assent of the executor or administrator to a legacy gives
effect to it from t he death of the testator.
Illustrations
(i) A legatee sells his legacy before it is assented to by the executor. The executor s subsequent assent operates
for the benefit of the purchaser and completes his title to the legacy.
(ii) A bequeaths 1,000 rupees to B with interest from his death. The executor does not assent to his legacy until
the expiration of a year from A's death. B is entitled to interest from the death of A.
337. Executor when to deliver legacies. An executor or administrator is not bound to pay or
deliver any legacy until the expiration of one year from the testator s death.
Illustration
A by his will directs his legacies to be paid within six months after his death. The executor is not bound to pay
them before the expiration of a year.
CHAPTER IX,Of the Payment and Apport ionment of Annuities
338. Commencement of annuity when no time fixed by will. Where an annuity is given by a will
and no time is fixed for its commencement, it shall commence from the testator's death, and the first
payme nt shall be made at the expiration of a year next after that event.
339. When annuity, to be paid quarterly or monthly, first falls due. Where there is a direction
that the annuity shall be paid quarterly or monthly, the first payment shall be due at the e nd of the first
quarter or first month, as the case may be, after the testator's death; and shall, if the executor or
administrator thinks fit, be paid when due, but the executor or administrator shall not be bound to pay it
till the end of the year.
340. Dates of successive payments when first payment directed to be made within a given time
or on day certain: death of annuitant before date of payment. (1) Where there is a direction that the
first payment of an annuity shall be made within one month or any other division of time from the death
of the testator, or on a day certain, the successive payments are to be made on the anniversary of the
earliest day on which the will authorises the first payment to be made.
(2) If the annuitant dies in the interval b etween the times of payment, an apportioned share of the
annuity shall be paid to his representative.
CHAPTER X.Of the Investment of Funds to Provide for Legacies
341. Investment of sum bequeathed, where legacy, not specific, given for life. Where a legac y,
not being a specific legacy, is given for life, the sum bequeathed shall at the end of the year he invested in
such securities as the High Court may by any general rule authorise or direct, and the proceeds thereof
shall be paid to the legatee as the sa me shall accrue due.
342. I nvestment of general legacy, to be paid at future time: disposal of intermediate, interest.
(1) Where a general legacy is given to be paid at a future time, the executor or administrator shall invest a
sum sufficient to meet it in securities of the kind mentioned in section 341.
(2) The intermediate interest shall form part of the residue of the testator s estate.
86 343. Procedure when no fund charged with, or appropriated to, annuity. Where an annuity is
given and no fund is charged with its payment or appropriated by the will to answer it, a Government
annuity of the specified amount shall be purchased, or, if no such annuity can be obtained, then a sum
sufficient to produce the annuity shall be invested for that purp ose in securities of the kind mentioned in
section 341.
344. Transfer to residuary legatee of contingent bequest. Where a bequest is contingent, the
executor or administrator is not bound to invest the amount of the legacy, but may transfer the whole
resid ue of the estate to the residuary legatee, if any, on his giving sufficient security for the payment of
the legacy, if it shall become due.
345. Investment of residu e bequeathed for life, without direction to invest in particular
securities. (1) Where the testator has bequeathed the residue of his estate to a person for life without
any direction to invest it in any particular securities, so much thereof as is not at the time of the testator's
decease invested in securities of the kind mentioned in section 341 shall be converted into money and
invested in such securities.
(2) This section shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina
or an exempted person.
346. Investment of residue bequeathed for life, with direction to in vest in specified securities.
When the testator has bequeathed the residue of his estate of a person for life with a direction that it shall
be invested in certain specified securities, so much of the estate as is not at the time of his death invested
in securities of the specified kind shall be converted into money and invested in such securities.
347. Time and manner of conversion and investment. Such conversion and investment as are
contemplated by sections 345 and 346 shall be made at such times and in such manner as the executor or
administrator thinks fit; and, until such conversion and investment are completed, the person who would
be for the time being entitled to the income of the fund when so invested shall receive interest at the rate
of 4 per cen t. per annum upon the market -value (to be computed as at the date of the testator's death) of
such part of the fund as has not been so invested:
Provided that the rate of interest prior to completio n of investment shall be six per cent.per annum
when the t estator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person
348. Procedure where minor entitled to immediate payment or possession of bequest, and no
direction to pay to person on his behalf. (1) Where, by the terms of a bequest, the leg atee is entitled to
the immediate payment or possession of the money or thing bequeathed, but is a minor, and there is no
direction in the will to pay it to any person on his behalf, the executor or administrator shall pay or deliver
the same into the Cour t of the District Judge, by whom or by whose District Delegate the probate was, or
letters of administration with the will annexed were, granted to the account of the legatee, unless the
legatee is a ward of the Court of Wards.
(2) If the legatee is a ward of the Court of Wards, the legacy shall be paid to the Court of Wards to his
account.
(3) Such payment into the Court of the District Judge, or to the Court of Wards, as the case may be,
shall be a sufficient discharge for the money so paid.
(4) Money whe n paid in under this section shall be invested in the purchase of Government securities,
which, with the interest thereon, shall be transferred or paid to the person entitled thereto, or otherwise
applied for his benefit, as the Judge or the Court of Wards , as the case may be, may direct.
CHAPTER XL.Of the Produce and Interest of Legacies
349. Legatee s title to produce of specific legacy. The legatee of a specific legacy is entitled to the
clear produce thereof. if any, from the testator's death.
Exceptio n.A specific bequest, contingent in its terms, does not comprise the produce of the legacy
between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the
residue of the testator's estate.
87 Illustrati ons
(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep are shorn
or some of the ewes produce lambs. The wool and lambs are the property of B.
(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The
interest which falls due between the death of A and the death of C belongs to B, and must, unless he is a minor, be
paid to him as it is received.
(iii) The testator bequeaths all his four per cent. Government promissory notes to A when he shall co mplete the
age of 18. A, if he c ompletes that age, is entitled to receive the notes, but the interest which accrues in respect of
them between the testator's death and A s completing 18, form part of the residue.
350. Residuary legatee s title to produce of residuary fund. The legatee under a generalresiduary
bequest is entitled to the produce of the residuary fund from the testator s death.
Exception .A general residuary bequest contingent in its terms does not compri se the income which
may accrue upon the fund bequeathed between the death of the testator and the vesting of the legacy.
Such income goes as undisposed of.
Illustrations
(i) The testator bequeaths the residue of his property to A, a minor, to be paid to hi m when he shall complete the
age of 18. The income from the testator's death belongs to A.
(ii) The testator bequeaths the residue of his property to A when he shall complete the age of 18. A, if he
completes that age, is entitled to receive the residue. T he income which has accrued in respect of it since the
testator's death goes as undisposed of.
351. Interest when no time fixed for payment of general legacy. Where no time has been fixed
for the payment of a general legacy, interest begins to run from exp iration of one year from the testator's
death.
Exception .(1) Where the legacy is bequeathed in satisfaction of a debt, interest runs from the death
of the testator.
(2) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the
place of a parent of the legatee, the legacy shall bear interest from the death of the testator.
(3) Where a sum is bequeathed to a minor with a direction to pay for his maintenance out of it,
interest is payable from the death of the testat or.
352. Interest when time fixed. Where a time has been fixed for the payment of a general legacy,
interest begins to run from the time so fixed. The interest up to such time forms part of the residue of the
testator's estate.
Exception .Where the testato r was a parent or a more remote ancestor of the legatee, or has put
himself in the place of a parent of the legatee and the legatee is a minor, the legacy shall bear interest
from the death of the testator, unless a specific sum is given by the will for ma intenance, or unless the
will contains a direction to the contrary.
353. Rate of interest. The rate of interest shall be four per cent. per annum in all cases except when |
contrary.
353. Rate of interest. The rate of interest shall be four per cent. per annum in all cases except when
the testator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, in which case it
shall be six per cent. per annum.
354. No interest on arrears of annuity within first year after testator's death. No interest is
payable on the arrears of an annuity within the first year from the death of the testator, although a period
earlier than the expiration of that year may have been fixed by will for making the first payment of the
annuity.
355. Interest on sum to be invested produce annuity. Where a sum of money is directed to be
invested to produce an annuity, interest is payabl e on it from the death of the testator.
CHAPTER XII.Of the Refunding of Legacies
356. Refund of legacy paid under Court s orders. When an executor or administrator has paid a
legacy under the order of a Court, he is entitled to call upon the legatee to re fund in the event of the assets
proving insufficient to pay all the legacies.
88 357. No refund if paid voluntarily. When an executor or administrator has voluntarily paid a
legacy, he cannot call upon a legatee to refund in the event of the asse ts proving insufficient to pay all the
legacies.
358. Refund when legacy has become due on perfor mance of condition within further time
allowed under section 137. When the time prescribed by the will for the performance of a condition
has elapsed, without the condition having been performed, and the executor or administrator has
thereupon, without fraud, distributed the assets; in such case, if further time has been allowed under
section 137 for the performance of the condition, and the condition has been p erformed accordingly, the
legacy cannot be claimed from the executor or administrator, but those to whom he has paid it are liable
to refund the amount.
359. When each legatee compellable to refund in proportion. When the executor or
administrator has paid away the assets in legacies, and he is afterwards obliged to discharge a debt of
which he had no previous notice, he is entitled to call upon each legatee to refund in proportion.
360. Distribution of assets. Where an executor or administrator has given s uch notices as the High
Court may, by any general rule, prescribe or, if no such rule has been made, as the High Court would give
in an administration -suit, for creditors and others to sent in to him their claims against the state of the
deceased, he shall , at the expiration of the time therein named for sending in claims, be at liberty to
distribute the assets, or any part thereof, in discharge of such lawful claims as he knows of, and shall not
be liable for the assets so distributed to any person of whos e claim he shall not have had notice at the time
of such distribution:
Provided that nothing herein contained shall prejudice the right of any creditor or claimant to follow
the assets, or any part thereof, in the hands of the persons who may have received the same respectively.
361. Creditor may call upon legatee to refund. A creditor who has not received payment of his
debt may call upon a legatee who has received paymeni of his legacy to refund, whether the assets of the
testator's estate were or were no t sufficient at the time of his death to pay both debts and legacies; and
whether the payment of the legacy by the executor or administrator was voluntary or not.
362. When legatee, not satisfied or compelled to refund under section 361, cannot oblige one
paid in full to refund. If the assets were sufficient to satisfy all the legacies at the time of the testator's
death, a legatee who has not received payment of his legacy, or who has been compelled to refund under
section 361, cannot oblige one who has re ceived payment in full to refund, whether the legacy were paid
to him with or without suit, although the assets have subsequently become deficient by the wasting of the
executor.
363. When unsatisfied legatee must first proceed against executor, if solvent. If the assets were
not sufficient to satisfy all the legacies at the time of the testator's death, a legatee who has not received
payment of his legacy must, before he can call on a satisfied legatee to refund, first proceed against the
executor o r administrator if he is solvent; but if the executor or administrator is insolvent or not liable to
pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion.
364. Limit to refunding of one legatee to another. The refunding of one legatee to another shall
not exceed the sum by which the satisfied legacy ought to have been reduced if the estate had been
properly administered.
Illustration
A has bequeathed 240 rupees, to B, 480 rupees to C, and 720 rupees to D. The assets are onl y 1,200 rupees and,
if properly administered, would give 200 rupees to B, 400 rupees to C and 600 rupees to D. C and D have been paid
their legacies in full leaving nothing to B. B can oblige C to refund 80 rupees, and D to refund 120 rupees.
89 365. R efunding to be without interest. The refunding shall in all cases be without interest.
366. Residue after usual payments to be paid to residuary legatee. The surplus or residue of the
deceased's property, after payment of debts and legacies, shall be paid to the residuary legatee when any
has been appointed by th e will.
367. Transfer of assets from India to executor or administrator in country of domicile for
distribution. Where a person not having his domicile in 1[India] has died leaving assets both in if
1[India ] and in the country in which he had his domicile at the time of his death, and there has been a
grant of probate or letters of administration in 1[India ] with respect to the assets there a grant of
administration in the country of domicile w ith respect to the assets in that country, the executor or
administrator, as the case may be, in 1[India ], after having given such notices as are mentioned in section
360, and after having discharged, at the expiration of the time therein named, such lawfu l claims as he
knows of, may, instead of himself distributing any surplus or residue of the deceased s property to
persons residing out of 1[India] who are entitled thereto, transfer, with the consent of the executor or
administrator, as the case may be, in the country of domicile, the surplus or residue to him for distribution
to those persons.
CHAPTER XIII. Of the Liability of an Executor or Admini strator for Devastation
368. Liability of executor or administrator for devastation. When an executor or administrator
misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or
damage so occasioned.
Illustrations
(i) The executor pays out of the estate an unfounded claim. He is liable to make good the loss.
(ii) The deceased had a valuable lease renewable by notice which the executor neglects to give at the proper
time. The executor is liable to make goo d the loss.
(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular
time. The executor neglects to give the notice. He is liable to make good the loss.
369. Liability of executor or administrator for neglect to get any part of property. When an
executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of
the deceased, he is liable to make good the amount.
Illustrations
(i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a
debtor who is able to pay in full. The executor is liable to make good the amount.
(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation
and the debt is thereby lost to the estate. The executor is liable to make good the amount.
PART X
SUCCESSION CERTIFICATES
370. Restriction on grant of certificates under this part .(1) A succession certifica te (hereinafter
in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or
security to which a right is required by section 212 or section 213 to be established by letters of
administration or probate:
Provi ded that nothing contained in this section shall be deemed to prevent the grant of a certificate to
any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof,
with respect to any debt or security, by reason th at a right thereto can be established by letters of
administration under this Act.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for the States .
90 (2) For the purposes of this Part, security means
(a) any promissory note, debenture, stock or other security of the Central Govern ment or of a
State Government;
(b) any bond, debenture, or annuity charged by Act of Parliament 1[of the United Kingdom] on
the revenues of India;
(c) any stock or debenture of, or share in, a company or other incorporated institution;
(d) any debenture or other security fo r money issued by, or on behalf of, a local authority;
(e) any other security which the2[State Government] may, by notification in the Official Gazette,
declare to be a security for the purposes of this Part.
371. Court having jurisdiction to grant certifi cate. The District Judge within whose jurisdiction
the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of
residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be
found, may grant a certificate under this Part.
372. Application for certificate. (1) Application for such a certificate shall be made to the District
Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the
Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a
plaintiff, and setting forth the following particulars, namely:
(a) the time of the death of the deceased;
(b) the ordinary residence of the de ceased at the time of his death and, if such residence was not
within the local limits of the jurisdiction of the Judge to whom the application is made, then the
property of the deceased within those limits;
(c) the family or other near relatives of the de ceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or
any other enactment, to the grant of the certificate or to the validity th ereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false,
or does not believe to be true, that perso n shall be deemed to have committed an offence under section
198 of the Indian Penal Code, 1860 (45 of 1860).
3[(3) Application for such a certificate may be made in respect of any debt or debts due to the
deceased creditor or in respect of portions thereo f.]
373. Procedure on application. (1) If the District Judge is satisfied that there is ground for
entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application
and of the day fixed for the hearing
(a) to be served on any person to whom, in the opinion of the Judge, special notice of the
application should be given, and
(b) to be posted on some conspicuous part of the court -house and published in such other manner,
if any, as the Judge, subject to any rules ma de by the High Court in this behalf, thinks fit,
and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary
manner the right to the certificate.
1. Ins. by the A. O. 1950.
2. The words G.G. in C have been successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
3. Added by Act 14 of 1928, s. 2.
91 (2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order
for the grant of the certificate to him.
(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact
which seem to b e too intricate and difficult for determination in a summary proceeding, he may
nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best
title thereto.
(4) When there are more applicants than one for a ce rtificate, and it appears to the Judge that more
than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to
whom the certificate is to be granted, have regard to the extent of interest and the fitness in other r espects
of the applicants.
374. Contents of certificate. When the District Judge grants a certificate, he shall therein specify
the debts and securities set forth in the application for the certificate, and may thereby empower the
person to whom the certif icate is granted
(a) to receive interest or dividends on, or
(b) to negotiate or transfer, or
(c) both to receive interest or dividends on, and to negotiate or transfer, the securities or any of
them.
375. Requisition of security from grantee of certifi cate. (1) The District Judge shall in any case
in which he proposes to proceed under sub -section ( 3) or sub -section ( 4) of section 373, and may, in any
other case, require, as a condition precedent to the granting of a certificate, that the person to whom he
proposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or other
sufficient security, for rendering an account of debts and securities received by him and for indemnity of
persons who may be entitled to the whole o r any part of those debts and securities.
(2) The Judge may, on application made by petitioner and on cause shown to his satisfaction, and
upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as
he thinks f it, assign the bond or other security to some proper person, and that person shall thereupon be
entitled to sue thereon in his own name as if it had been originally given to him instead of to |
and that person shall thereupon be
entitled to sue thereon in his own name as if it had been originally given to him instead of to the Judge of
the Court, and to recover, as trustee for all perso ns interested, such amount as may be recoverable
thereunder.
376. Extension of certificate. (1) A District Judge may, on the application of the holder of a
certificate under this Part, extend the certificate to any debt or security not originally specifie d therein,
and every such extension shall have the same effect as if the debt or security to which the certificate is
extended had been originally specified therein.
(2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividends
on, or the negotiation or transfer of, any security to which the certificate has been extended may be
conferred, and a bond or further bond or other security for the purposes mentioned in section 375 may be
required, in the same manner as upon the original grant of a certificate.
377. Forms of certificate and extended certificate. Certificates shall be granted and extensions of
certificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.
378. Amendment of certificate in respect of powers as to securities. Where a District Judge has
not conferred on the holder of a certificate any power with respect to a security specified in the certificate,
or has only empowered him to receive interest or dividends on, or to negotiate or transfer, the security the
Judge may, on application made by petitioner and on cause shown to his satisfaction, amend the
certificate by conferring any of the powers mentioned in section 374 or by substituting any one for any
other of th ose powers.
379. Mode of collecting court -fees on certificates. (1) Every application for a certificate or for the
extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the
Court -Fees Act, 1870 (7 of 1870), in respect of the certificate or extension applied for.
92 (2) If the application is allowed, the sum deposited by the applicant shall be expended, under the
direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid.
(3) Any sum received under sub -section ( 1) and not expended under sub -section ( 2) shall be refunded
to the person who deposited it.
380. Local extent of certificate .A certificate under this Part shall have effect
throughout 1[India] 2***.
3[This section shall apply in 3[India] 4after the separation of Burma and Ad en from India to
certificates granted in Burma and Aden before the date of the separation, or after that date in proceedings
which were pending at that date.]
5[It shall also apply in 3[India] 6***7after the separation of Pakistan from India to certificate s granted
before the date of the separation, or after that date in proceedings pending at that date in any of the
territories which on that date constituted Pakistan.]
381. Effect of certificate. Subject to the provisions of this Part, the certificate of t he District Judge
shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing
such debts or liable on such securities, and shall, not withstanding any contravention of section 370, or
other defect, afford f ull indemnity to all such persons as regards all payments made, or dealings had, in
good faith in respect of such debts or securities to or with the person to whom the certificate was granted.
8[382. Effect of certificate granted or extended by Indian representative in Foreign State and in
certain other cases .Where a certificate in the form, as nearly as circumstances admit, of Schedule
VIII
(a) has been granted to a resident within a foreign State by an Indian representative accredited to
that State, or
(b) has been granted before the commencement of the Part B States (Laws) Act, 1951 (3 of 1951),
to a resident within any Part B State by a district judge of that State or has been extended by him in
such form, or
(c) has been granted after the commence ment of the Part B States (Laws) Act, 1951 (3 of 1951),
to a resident within the State of Jammu and Kashmir by the district judge of that State or has been
extended by him in such form, the certificate shall, when stamped in accordance with the provisions
of the Court -Fees Act, 1870 (7 of 1870), with respect to certificates under this Part, have the same
effect in India as a certificate granted or extended under this Part.]
383. Revocation of certificate. A certificate granted under this Part may be revoked for any of the
following causes, namely:
(a) that the proceedings to obtain the certificate were defective in substance;
(b) that the certificate was obtained fraudulently by the making of a false sugges tion, or by the
concealment from the Court of some thing material to the case;
1. Subs .by Act 3 of 1951,s . 3 and the Schedule, for the States .
2. The words of India omitted by the A.O. 1950.
3. Ins. by the A.O. 1937.
4. 1st April, 1937.
5. Added by the A.O. 1948.
6. The words of India omitted by Act 48 of 1952,s . 3 and Schedule II.
7. 15th August, 1947.
8. Subs . by Act 1957, s. 2 for s . 382 .
93 (c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of
law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in a suit or other proceeding with respect to
effects comprising debts or securities specified in the certificate renders it proper t hat the certificate
should be revoked.
384. Appeal. (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court
from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High
Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be
granted and direct the District judge, on application being made therefore, to grant it accordingly, in super
session of the certificate, if any, alread y granted.
(2) An appeal under sub -section ( 1) must be preferred within the time allowed for an appeal under the
Code of Civil Procedure, 1908 (5 of1908).
(3) Subject to the provisions of sub -section ( 1) and to the provisions as to reference to and revisio n by
the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied
by section 141 of that Code, an order of a District Judge under this Part shall be final.
385. Effect on certificate of previous certificate, prob ate or letters of administration. Save as
provided by this Act, a certificate granted thereunder in respect of any of the effects of a deceased person
shall be invalid if there has been a previous grant of such a certificate or of probate or letters of
administration in respect of the estate of the deceased person and if such previous grant is in force.
386. Validation of certain payments made in good faith to holder of invalid certificate.
Where a certificate under this Part has been superseded or is inval id by reason of the certificate having
been revoked under section 383,or by reason of the grant of a certificate to a person named in an appellate
order under section 384, or by reason of a certificate having been previously granted, or for any other
cause , all payments made or dealings had, as regards debts and securities specified in the superseded or
invalid certificate, to or with the holder of that certificate in ignorance of its super session or invalidity,
shall be held good against claims under any other certificate.
387. Effect of decisions under this Act, and liability of holder of certificate thereunder.
No decision under this Part upon any question of right between any parties shall be held to bar the trial of
the same question in any suit or in any other proceeding between the same parties, and nothing in this Part
shall be construed to affect the liability of any person who may receive the whole or any part of any debt
or security, or any interest or dividend on any security, to account therefo re to the person lawfully entitled
thereto.
388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act.
(1) The State Government may by notification in the Official Gazette, invest any court inferior in grade to
a Dis trict Judge with power to exercise the functions of a District Judge under this Part.
(2) Any inferior court so invested shall, within the local limits of its jurisdiction, have concurrent
jurisdiction with the District Judge in the exercise of all the pow ers conferred by this Part upon the
District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior
court as if it were a District Judge:
Provided that an appeal from any such order of an inferior court as is mentioned in sub -section ( 1) of
section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he
thinks fit, by his order on the appeal, make any such declaration and direction as that sub -section
authorises th e High Court to make by its order on an appeal from an order of a District Judge.
94 (3) An order of a District Judge on an appeal from an order of an inferior Court under the last
foregoing sub -section shall, subject to the provisions as to reference to and revision by the High Court
and as to review of judgment of the Code of Civil Procedure, 1908 ( 5 of 1908), as applied by section
141 of that Code, be final.
(4) The District Judge may withdraw any proceedings under this Part from an inferior court, and may
either himself dispose of them or transfer them to another such court established within the l ocal limits of
the jurisdiction of the District Judge and having authority to dispose of the proceedings.
(5) A notification under sub -section ( 1) may specify any inferior court specially or any class of such
courts in any local area.
(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to
the control of, a District Judge shall, for the purposes of this section, be deemed to be a court inferior in
grade to a District Judge.
STATE AMENDMENT
Karnataka
Amendment of Central Act 39 of 1925 .In the Indian Succession Act, 1925 (Central Act 39 of
1925) as in force in the St ate of Karnataka, section 388 shall be omitted.
[Vide Karnataka Act 28 of 1978, s. 4].
389. Surrender of superseded and invalid certificates. (1) When a certificate under this Part has
been superseded or is invalid from any of the causes mentioned in section 386, the holder thereof shall, on
the requisition of the Court which granted it, deliver it upto that court.
(2) If he willfully and without reasona ble cause omits so to deliver it up, he shall be punishable with
fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to
three months or with both.
390. Provisions with respect to certificates under Bombay Regulati on VIII of 1827.
Notwithstanding anything in Bombay Regulation No. VIII of 1827 the provisions of section 370, sub -
section ( 2), section 372, sub -section ( 1), clause ( f), and sections 374, 375, 376, 377, 378, 379, 381, 383,
384, 387, 388 and 389 with respec t to certificates under this Part and applications therefore, and of
section 317 with respect to the exhibition of inventories and accounts by executors and administrators,
shall, so far as they can be made applicable, apply, respectively, to certificates granted under that
Regulation and applica tions made for certificates thereunder, after the 1st day of May, 1889 and to the
exhibition of inventories and accounts by the holders of such certificates so granted.
PART XI
MISCELLANEOUS
391 Saving .Nothing in Part VIII, Part IX or Part X shall
(i) validate any testamentary disposition which would otherwise have been invalid;
(ii) invalidate any such disposition which would otherwise have been valid;
(iii) deprive any person of any right of maintenance to which he would otherwise have been
entitled; or
(iv) affect the Administrator General s Act, 1913(3 of 1913).
392. [Repeal ed.].Rep. by the Repealing Act, 1927 (12 of 1927), s. 2 and Schedule .
95 SCHEDULE I
(See section 28)
TABLE OF CONSANGUINITY
Great
Grandfathers
Father.
4
Great
Grandfather.
Great Great
Uncle.
3 5
Grandfather.
Great
Uncle.
2
Father
Uncle.
Great Uncles son.
1
THE PERSON
WHOSE
RELATIVES
ARE TO BE
RECKONED .
Brother.
Cousin -german.
Second Cousin.
1
Son .
Nephew.
Son of the
Cousin -german.
1
Grandson.
Son of the
Nephew or
Brothers
Grandson.
Grandson of
the Cousin -
german.
2
Great
Grandson.
96 1[SCHEDULE II
PART I
(See section 54)
(1) Father and mother.
(2)Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as
shall have predeceased the intestate.
(3) Paternal and maternal grandparents.
(4) Children of paternal and maternal grandparents and the lineal descendants of such of them as have
predec eased the intestate.
(5) Paternal and maternal grandparents parents.
(6) Paternal and maternal grandparents parents children and the lineal descendants of such of them
as have predeceased the intestate.
PART II
(See section 55)
(1) Father and mother.
(2) Brothers and sisters ( |
PART II
(See section 55)
(1) Father and mother.
(2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as
shall have predeceased the intestate.
(3) Paternal and maternal grandparents.
(4) Children of paternal and maternal grandparents and the lineal descenda nts of such of them as have
predeceased the intestate.
(5) Paternal and maternal grandparents parents.
(6) Paternal and maternal 2[grandparent s parents children ] and the lineal descendants of such of them
as have predeceased the intestate.
(7) Half brothers and sisters and the lineal descendants of such of them as have predeceased the
intestate.
(8) Widows of brothers or half brothers and widowers of sisters or half sisters.
(9) Paternal or maternal grandparents children s widows or widowers.
(10) Widows or widowers of deceased lineal descendants of the intestate who have not married again
before the death of the intestate.]
SCHEDULE III
[See section 57]
PROVISIONS OF PART VI APPLICABLE TO CERTAIN WILLS AND CODICILS DESCRIBED IN SECTION 57
Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89,
90, 95, 96, 98, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 3[117],
119, 120, 121, 122, 123, 124, 125, 126, 127 , 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139,
140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160,
161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181,
182, 183, 184, 185, 186, 187, 188, 189 and 190.
1. Subs. by Act 51 of 1991, s. 7 for the second Schedule .
2. Subs. by Act 30 of 2001, s. 3 and the Second Schedule, for grandparents children (w.e.f. 3 -9-2001).
3. Ins by Act 21 of 1929, s. 14.
97 Restrictions and modifications in application of foregoing sections
1. Nothing therein contained shall authorise a testator to bequeath property which he could not have
alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the
application of these sections, he could not deprive them, by will.
2. Nothing therein contained shall authorise any Hindu, Buddhist, Sikh or Jaina, to create in property
any intere st which he could not have created before the first day of September, 1870.
3. Nothing therein contained shall affect any law of adoption or intestate succession,
4. In applying section 70, the words than by marriage or shall be omitted.
5. In applying a ny of the following sections, namely, sections seventy -five, seventy -six, one hundred
and five, one hundred and nine, one hundred and eleven, one hundred and twelve, one hundred and
thirteen, one hundred and fourteen, one hundred and fifteen, and one hundr ed and sixteen to such wills
and codicils, the words son, sons, child , and children shall be deemed to include an adopted
child; and the word grand -children shall be deemed to include the children, whether adopted or natural -
born, of a child whet her adopted or natural -born; and the expression "daughter -in-law" shall be deemed to
include the wife of an adopted son.
98 SCHEDULE IV
[See section 274( 2)]
FORM OF CERTIFICATE
I, A. B., Registrar (or as the case may be) of the High Court of J udicature at( or as the case may be)
hereby certify that on the day of, the HighCourt of Judicatureat (or as the case may be)
granted probate of the will ( or letters of administration ofthe estate) of C.D., late of , decreased, to
E.F. of and G.H. of, andthat such probate ( or letters) has ( or have) effect over all the property of the
deceased throughout 1[India] 2***.
SCHEDULE V
[See section 284(4)]
FORM OF CAVEAT
Let nothing be done in the matter of, the estate of A. B., late of , deceased, whodied on the
day of at , without notice to C.D.of
SCHEDULE VI
(Seesection 289)
FORM OF PROBATE
I, Judge of the District of [or Delegate appointed for granting probate orletters of administration in
(here insert the limits of the Delegate s jurisdiction )], hereby make knownthat on the day of in the
year , the last will of , late of , a copy whereof ishereunto annexed, was proved and registered before
me, and that administration of the property andcredits of the said deceased, and in any way concerning his
will was granted to , the executor inthe said will named, he having undertaken to administer the
same, and to make a full and true inventory of the said property and credits and exhibit the same in this
Court within six months from the date of this grant or within such further time as the Court may, from
time to time, appoint, and also to render to this Court a true account of the said property and credits
within one year from the same date, or within such further time as the Court may, from time to time,
appoint.
SCHEDULE VII
(See section 290)
FORM OF LETTERS OF ADMINISTRATION
I, Judge of the District of [or Delegate appointed for granting probate
orletters of administration in (here insert the limits of the Delegate s jurisdiction )], hereby
makeknown that on the day of letters of administration (with or without the will annexed, as thecase
may be), of the property and credits of , late of ,deceased, were granted to , thefather ( or as the
case may be) of the deceased, he having undertaken to administer the same and to make a full and true
inventory of the said property and credits and exhibit the same in this Court, within six months from the
date of this grant or within such further time as the Court may, from time to time, appoint, and also to
render to this Court a true account of the said property and credits within one year from the same date, or
within such further time as the Court may, from time to time, appoint.
1. Subs. by Act 3 of 1951, s. 3 and the Schedule , for the States .
2. The words of India omitted by the A.O . 1950.
99 SCHEDULE VIII
(See section 377)
FORMS OF CERTIFICATE AND EXTENDED CERTIFICATE
In the Court of
To A. B.
Whereas you applied on the day of for a certificate under Part X of the IndianSuccession
Act, 1925, in respect of the following debts and securities, namely:
Debts
Serial 1[Name] of Amount of debt,
Number debtor including interest, on date
of application for certificate Description and date of
instrument, if any, by
which the debt is secured
Securities
DESCRIPTION
This certificate is accordingly granted to you and empowers you to collect those debts [ and] [to receive ][interest ]
[dividends ] [on] [to negotiate ] [to transfer ] [those securities ].
Dated this day of District Judge
In the Court of
On the application of A. B. made to me on the day of , I hereby extend this
certificateto the following debts and securities, namely :
Debts
Serial Number Name of debtor Amount of debt, including interest, on
date of application for extension Description and date of
instrument, if any, by which the
debt is secured
Securities
DESCRIPTION
Serial Number Distinguish ing
number or letter of
security Name, title or class of
security Amount or par value
of security Market -value of
security on date of
application for
extension
This extension empowers A. B. to collect those debts [ and] [to receive ] [interest ] [dividends ] [on] [tonegotiate ]
[to transfer ] [those securities ].
Dated this day of
District Judge.
SCHEDULE IX. [Enactments repe aled.]. Rep. by the Repealing Act, 1927 (12 of 1927), s. 2 and the
Schedule .
1. Subs. by Act 48 of 1952, s. 3 and the Second Sch edule, for Number . Serial
Number Distinguishing
number or letter of
security Name, title or class of security Amount or par value of
security Market -value of security
on date of application for
certificate |
BSF RULES 65
S.O. 2336 - In exercise of the powers conferred by sub -section (1)
and (2) of section 141 of the Border Security Force Act, 1968 (47
of 1968), the Central Government hereby makes the following
rules, namely: -
THE BORDER SECURITY FORCE RULES, 1969
CHAPTER -I
PRELIMINARY
1. Short title and application - (1) These rules may be called the
Border Security Force Rules, 1969.
(2) They shall come into force on the date of their publication
in the official Gazette.]1
(3) These rules shall apply to all persons subject to the Act.
Provide d that the provisions of Chapter IV thereof shall
not apply to persons belonging to the All India Services and other
Government servants who are on deputation with the Border
Security Force.
2 [Provided further that the provisions of Chapter -IX & X
thereof shall not apply to trial by SSFCs in so far as they are
inconsistent with any of the provisions contained in Chapter -XI
thereof pertaining to Summary Security Force Courts].
2. Definitions - In these rules, unless the context otherwise
requires, -
(a) the Act means the Border Security Force Act,
1968 (47 of 1968),
(b) Appendix means an Appendix annexed to these
rules,
(c) Court means the Security Force Court,
1 Published in the Gazette of India, Extraordinary, Part -II, Section 3 (ii), dated
the 13th June, 1969. 2 Ins. By S.O. 329(E), dated 29.04.1981.
BSF RULES 66
(d) Detachment includes any part of the battalion
1[or Unit] required or ordered to proceed on duty
away from Headquarters,
(e) Proper Force authority when used in relation to
any power, duty, act or matter, means such Force
authority as, in pursuance of these rules made
under the Act, exercises, or perfor ms that power
or duty or is concerned with that matter.
(f) Section means a section of the Act,
(g) all words and expressions used in these rules and
defined in the Act shall have the same meaning as
in the Act.
3. Reports and applications. - Any report or application
directed by these rules to be made to a superior officer, or to a
proper Force authority shall be made in writing through the proper
channel, unless the said authority, on account of exigencies of
service or otherwise, dispenses with the w riting.
4. Forms in appendices. - (1) The forms set forth in the
appendices, with such variations as the circumstances of each case
may require, may be used for the respective purposes therein
mentioned, and if used shall be sufficient, but a deviatio n from such
forms shall not, by reason only of such deviation, render invalid
any charge, warrant, order, proceedings or any other documents
relevant to these rules.
(2) Any omission of any such form shall not, by reason only
of such omission, render any act or thing invalid.
(3) The directions in the notes to and the instructions in the
form shall be duly complied with in all cases to which they relate,
but any omission to comply with any such direction in the notes or
instructions shall not, merely by reason of such omission, render
any act or thing invalid.
1. Ins. By S.O. 2628(E) , dated 25th Nov 2011
BSF RULES 67
5. Exercise of power vested in holder of an office in the
Force. - Any power or jurisdiction given to any person holding
any office in the Force to do any act or thing to, or before any
person, may, for the purposes of these rules, be exercised by any
other person who may, for the time being, be performing the
functions of that office in accordance with the rules and practice
of the Force.
6. Case un -provided for. - In regard to any matter not
specifically provided for in these rules, it shall be lawful for the
competent authority to do such thing or take such action as may be
just and proper in the circumstances of the case.
BSF RULES 68
CHAPTER - II
RECRUITMENT
7. 1[Disqualification. - No person, -
(a) who has entered into or contracted a marriage with
a person having a spouse living, or
(b) who, having a spouse living, has entered into or
contracted a marriage with any person,
shall be eligible for appointment in the Force.
Provided that the Central Government may, if satisfied,
that such marriage is permissible under the personal law applicable
to such person and the other party to the marriage and that there
are other grounds for so doing, exempt any person from the
operation of this rule.]
8. Ineligibility of aliens. - No person who is not a citizen of
India shall , except with the consent of the Central Government
signified in writing, be appointed, enrolled or employed in the
Force.
Provided that nothing contained in this rule shall bar the
appointment, enrolment or employment of a subject of 2[Nepal or
Bhutan] in the Force.
9. Appointment of officers. - The Central Government may
appoint such persons as it considers to be suitable as officers in the
Force, and their conditions of service shall be such as may be
provided in the rules made in this beh alf by the Central
Government.
2 [10. Probation. - (1)3[An officer, subordinate officer or under -
officer]on first appointment to the Force shall be on probation for a
period of two years and the Central Government in the case of
officers and the authority prescribed in rule 11 in the case of
1. Rule-7 subs S.O.188(E) dated 13th Mar 1993.
2. Subs by S.O. 2628(E) dated 25th Nov 2011. 3. The word against a permanent
post in sub rule 1 of rule 10 shall be deleted by SO 188(E) dated 13th Mar 1993.
BSF RULES 69
subordinate officers and under -officers may, for reasons to be
recorded in writing, extend the period of probation for such further
period or periods not exceeding one year.
(2) The Central Government in the case of officers and the
prescribed authority in the case of subordinate officers or under -
officers, as the case may be, may, during the period of probation,
terminate the services of such persons without assigning any
reasons.
(3) The provisions of sub -rule (1) shall also be applicable to a
person on his initial promotion as an officer and the person who
does not complete the period of probation satisfactorily may be
reverted to his former rank.]
11. 1 [Appointment of Subordinate Officers a nd under -
officers. - Appointments to the post of Subedar -Major or Inspector
shall be made by the Inspector -General and in the case of Sub -
Inspector or Assistant Sub -Inspector by the Deputy
InspectorGeneral and under -officer by the Commandant in the
following manner : -
(i) by direct recruitment;
(ii) by deputation from the Army, Navy, Air Force, State
Police Force, or any other Department of the Central Government
or of the State Government;
(iii) by promotion as may be prescribed.]
11-A. Commissions. - 1[(1) Officers referred to in rule 9 and
Subedar -Major, Inspector, Sub -Inspector and Assistant Sub -
Inspector referred to in rule 11 may be granted commissions as
such by the President.]
(2) The grant of the commission shall be notified in the Official
Gazette and such notification shall be conclusive proof of the grant
of such commission.
12. Enrolling Officers. - For the purposes of enrolment of
persons to the Force under section 6, the following persons shall
be enrolling offi cers : -
1. Subs by S.O. 2628(E) dated 25th Nov 2011.
BSF RULES 70 (a) Commandants of all battalions; and
(b) any other officer of the Force who may be appointed as
enrolling officer by the DirectorGeneral.
13. Procedure for enrolment, mode of enrolment and other
matters connected therewith. - (1) Upon the appearance before
the enrolling officer of any person desirous of being enrolled, the
enrolling officer shall read and explain to him, or cause to be read
and explained to him in his presence, the conditions of service for
which he is to be enrolled; and shall put to him the questions
contained in the form of enrolment set out in Appendix I and shall,
after having cautioned him that if he makes a false an swer to any
such questions he shall be liable to punishment under the Act,
record or cause to be recorded his answer to each such question.
(2) If, after complying with the provisions of sub -rule (1) and
such other directions as may be issued in t his behalf by the
Director -General from time to time, the enrolling officer is
satisfied that the person desirous of being enrolled, fully
understands the questions put to him and consents to the
conditions of service, and if the said officer is satisf ied that
there is no impediment, he shall sign and shall also cause
such person to sign the enrolment paper, and such person
shall thereupon be deemed to be enrolled.
(3)
(a) Every person enrolled as a member of the Force
under sub -rule (2) shall be administered an oath or
affirmation in the form set out in Appendix I.
(b) The oath or affirmation shall as far as possible be
administered by the Commandant of the person to be
attested or in the unavoidable absence of the Com mandant
by the person authorised in writing by the Commandant in
this behalf.
(c) The oath or affirmation shall be administered when
the person to be attested has completed his training.
BSF RULES
71
CHAPTER - III
ORGANISATION
1 [14.Constitution of the Force. - (1) Border Security Force shall
consist of: -
(a) Border Security Force (Regular)
(b) Border Security Force (Auxiliary)
(2) Officers, subordinate officers and enrolled persons
appointed to or enrolled into the Border Security Force (Regular)
shall be liable for continuous service for the term mentioned in
their enrolment form, letter of appointment or in the rules made in
this behalf.
(3) Officers, subordinate officers and enrolled persons
appointed to or enrolled into the Border Security Force (Auxiliary)
shall serve as and when they are called out for service by the
Director - General with the consent of the Central Government or
for training under the order of the Director -General.
2 [14A. Ranks. - 3[(1) The officers and other members of the Force
shall be classified in accordance with their ranks in the following
categories namely: -
(a) Officers
(1) Director -General.
(2) Special Director -General.
(3) Additional Director -General.
(4) Inspector -General.
(5) Deputy Inspector -General.
(6) Commandant.
(7) Second -In-Command.
(8) Deputy Commandant.
(9) Assistant Commandant.
1. Ins. By SO 4034, dated 21 Oct 1971.
2. Renumbered by ibid.
3. Subs by SO 2628(E) 25th Nov 2011.
BSF RULES 72
(b) Subordinate Officers
(10) Subedar -Major.
(11) Inspector.
(12) Sub-Inspector.
(13) Assistant Sub -Inspector.
(c) Under Officers
(14) Head Constable
(15) Naik
(16) Lance Naik
(d) Enrolled persons other than Under Officers
(17) Constable.
(18) Enrolled followers.
(2) Matters relating to Inter -se seniority of persons
belonging to the same rank shall be determined in accordance
with such rules as may be made in this behalf.
1 [(3) Notwithstanding anything contained in these rules, the
Director -General may, -
(i) subject to confirmatio n by the
Central
Government as provided herein after, grant to an officer or
a SubedarMajor or an Inspector]of the Force a rank,
mentioned against serial numbers (6), (7), (8) and (9)],in
clause (a) of sub -rule (1), as a local rank:
(ii) subject to prior approval of the Central
Government, grant to an officer of the Force a rank
mentioned against serial numbers (2), (3), (4) and
(5) in clause (a) of sub -rule (1), as a local rank;
whenever as considered necessary by him in the
interest of bett er functioning of the force.]
1. Amended by SO 55(E) dated 01st Feb 1999.
BSF RULES 73
(4) An officer, a Subedar -Major or an Inspector of the Force
holding a local rank: -
(a) shall exercise the command and be vested with the
powers of an officer holding that rank;
(b) shall cease to hold that rank, if the grant of such
rank is not confirmed within twenty one days by the
Central Govt. or when so ordered by the Director -Genera l
or when he ceases to hold the appointment for which the
rank was granted;
1
[Explanation]
(c) shall not be entitled to any extra pay and
allowances for holding such rank;
(d) shall not be entitled to claim any seniority over
other officer of the Force by virtue of having held such
rank.]
15. The task |
any seniority over
other officer of the Force by virtue of having held such
rank.]
15. The task of the Force and Command and Control thereto. -
(1) For the purpose of sub -section (1) of section 4, the Force shall
,-
(i) promote a sense of security among the people
living in the border areas;
(ii) prevent trans -border crimes, un -authorised entry
into or exit from the territory of India;
(iii) prevent smuggling and any other illegal activity.
2
[(2) In discharging the functions under sub -rule (1),
the responsibility for the command, discipline, morale and
administration shall , -
(a) in the case of Special Director -General, extend
to all battalions, units, headquarters, establishments and
Force personnel placed under him 3[***];
1. Explanation omitted by SO 436(E) date 29th May 1990.
2. Subs by SO, 2628(E) dated 25th Nov 2011. 3. Omitted by SO 436(E) dated 29th
May 1990.
BSF RULES 74
(b) in the case of Additional Director -General,
extend to all the battalions, units, headquarters,
establishments and Force personnel placed under him
1[***];
(c) in the case of 2[Inspector -General,]extend to all
battalions, units, headquarters, establishments and Force
personnel placed under him 1[***].
(d) in the case of a Deputy Inspector -General, extend
to all the battalions, other personnel and units placed
under him; and
(e) in the case of a Commandant, extend to the
battalion or unit placed under him.
(3) During hostilities, the Specia l Director -General, the
Additional Director -General, the Inspector -General, the Deputy
Inspector -General and the commandant shall discharge such
functions as may be assigned by their respective superiors.]
(4) The command, discipline, administration and training of
battalions, units and establishments not placed under a Deputy
Inspector General or an Inspector -General shall be carried out by
such officers and in such manner as may from time to time be laid
down by the Director -General.
(5) Any member o f the Force shall be liable to perform any
duties in connection with the safeguarding of the security of the
border of India, the administration, discipline and welfare of the
Force and such other duties as he may be called upon to perform in
accordance with any law for the time being in force and any order
given in this behalf by a superior officer shall be a lawful command
for the purposes of the Act.
16. Command - (1) An officer appointed to command shall have
the power of command over all office rs and men, irrespective of
seniority placed under his command.
(2) (a) In the contingency of an officer being unable to exercise the
command, to which he has been appointed,
1. Omitted by SO 436(E) dated 29th May 1990. 2. Subs by SO,
2628(E) dated 25th Nov 2011.
BSF RULES 75
due to any reason, the command shall devolve on the second -in-
command, if one has been so appointed.
(b) If no second -in-command has been appointed, it
shall devolve on the o fficer who may be appointed to
officiate by the immediate superior of the officer unable to
exercise command.
(c) If no such officer has been so appointed, command
shall devolve on the senior most officer present.
(d) The inability of an officer to exerci se command
and its assumption by any other officer in accordance with
this sub -rule shall be immediately reported to Force
Headquarters by the officer who has assumed command.
(3) If persons belonging to different battalions and units are
working together : -
(i) in regard to the specific task on which they are
engaged, the officer appointed to command or in his
absence the senior most officer present shall exercise
command over all such persons;
(ii) in all other matters the senior officer belong ing to
each battalion shall exercise command over persons
belonging to his battalion.
(4) When officers and other persons belonging to the Force are
taken prisoner by an enemy the exiting relations of su perior and
subordinate and the duty of obedience shall remain unaltered and
any person guilty of indiscipline or insubordination in this behalf
shall, after his release, be liable for punishment.
(5) Disciplinary powers over a person subject to the Act shall
be exercised by the Commandant of the battalion or unit to which
such a person belongs or the officer on whom command has
devolved in accordance with sub -rule (2).
1 [Provided that when persons belonging to different battalions or units a re
working together, disciplinary powers in respect of such
1. Ins by SO 2628(E) dated 25th Nov 2011.
BSF RULES 76
persons may also be exercised by an officer appointed to command
such persons in accordance with clause (i) of sub -rule (3) or in his
absence by the senior most officer present.]
(6) Where such a person is doing detachment duty, including
attendance a t a course of instruction the Commandant of
the battalion, unit, centre or establishment with which he
is doing such duty shall also have all the disciplinary
powers of a Commandant.
(7) The Director -General, 1[the Special Director -General, the
Additional Director -General], the Inspector -General and the Deputy
Inspector -General may specify one or more officers of the staff who
shall exercise the disciplinary powers of a
Commandant in respect of persons belonging to or doing
detachment dut y at their respective Headquarters.
2[Provided that an officer not below the rank of Deputy Inspector
General commanding a training institution may specify one or
more officers of the staff who shall exercise the disciplinary powers
of a Commandant in respect of persons belonging to or doing
detachment duty at their respective Training Institutions].
Explanation - In this rule, except in sub -rule (2), 2[sub-rule (5),
and sub -rule (7)] the word officer shall include a subordinate
officer and an under officer.
1. Ins. by SO, 2628(E) dated 25th Nov 2011 .
2. Ins by SO, 1757(E) dated 19 April2017.
BSF RULES 77
CHAPTER - IV
TERMINATION OF SERVICE
17. 1[Termination of service on grounds of furnishing false or incorrect
information at the time of appointment or enrolment .- (1) Any person,
who has become subject to
the Act by furnishing false or incorrect information or by adopting
any fraudulent means, may be dismissed or removed from service
by the Central Government or any other officer not below the rank
of the appointing authority, as the case may be.
(2) When the competent authority proposes to take action
under sub-rule (1), such person shall be given an opportunity to
show cause against the proposed action.
(3) The competent authority, while taking action under this
rule, may allow pensionary benefits in appropriate cases, if such
benefits are otherwise admi ssible under the relevant rules;
17 A. Discharge from the service on ground of unsatisfactory
progress in basic training .- (1) When it is proposed to discharge
a person subject to the Act from service on account of
unsatisfactory progress in basic training, the Head of the Training
Establishment or any officer not below the rank of the appointing
authority, shall discharge that person from service after complying
with the provisions of sub - rule (2) if he is competent to do so, or
shall m ake recommendations to the competent authority for
discharge of such person.
(2) The officer or authority referred to in sub -rule (1) while
taking action under above sub -rule shall satisfy itself that the
person has been given sufficient opportunity to progress.
(3) The Central Government or the competent authority, as
the case may be, after considering the report(s) or
recommendations, may discharge that person from the service
after giving opportunity to show cause.]
1. Subs .by SO, 2628(E) dated 25th Nov 2011 .
BSF RULES 78
18. Retirement on grounds of physical unfitness. - (1)
Where an officer not below the rank of a Deputy Inspector -General
considers that an officer of the Force is unfit to perfor m his duties
because of his physical conditions, the officer shall be brought
before a medical board.
(2) The medical board shall consist of such officers and shall
be constituted in such manner as may, from time to time, be laid
down by the Director -Gener al.
(3) Where the medical board considers the officer to be unfit
for service, the Central Government shall communicate to the said
officer the findings of the medical board and thereupon, with -in
a period of fifteen days of such communication, the officer may
make a representation against it to the Central Government.
(4) The Central Government may, on receiving the
representation from the officer, refer the case to be reviewed by a
fresh medical board constituted for the purpose and order the
retirement of the said officer if the decision of the fresh medical
board is adverse to him.
19. Resignation. - (1) The Central Government may, having
regard to the special circumstances of any case, permit any officer
of the Force to resign from the Force before the attainment of the
age of retirement or before putting in such number of years of
service as may be necessary under the rules to be eligible for
retirement:
Provided th at while granting such permission the Central
Government may:
(i) require the officer to refund to the Government such
amount as would constitute the cost of training given to
that officer 1[or three months pay and allowances,
whichever is higher] or Provided further that an officer of
the Force tendering resignation, for accepting a job under
Central or State Governments or local bodies, after
1. Ins .by SO, 1686 dated 31st May 1996.
BSF RULES 79
having been granted cadre clearance for the same 1[or who
has completed 10 years of service] shall not be required
to refund the sum as provided here in above.
(2) The Central Government may accept the resignation under
sub-rule (1) with effect from such date as it may consider
expedient.
(3) The Central Government may refuse to permit an officer to
resign : -
(a) if an emergency has been declared in the Country
either due to internal disturbances or external aggression;
or
(b) if considers it to be inexpedient so to do 2[due to
exigencies of service] or in the interests of the discipline
of the Force; or
(c) if the officer has specifically undertaken to serve
for a specified period and such period has not expired.
(4) The provisions of this rule, shall apply to and in relation to
subordinate Officer and Enrolled Persons as they apply to and in
relation to any officer of the Force and the powers vested in the
Central Government under sub -rules (1) and (2) shall be exercised
in the case of a Subordinate Officer by a Deputy Inspector General
and in the case of an Enrolled Person by a Commandant.
3 [20. Termination of service of officers by the Central
Government on account of misconduct] (1) when it is proposed
to terminate the service of an officer under section 10 on account of
mis-conduct, he shall be given an opportunity to show cause in the
manner specified in sub -rule (2) against such action: -
Provided that this sub -rule shall not apply : -
(a) where the service is terminated on the ground of
1. Ins. by SO. 1644, dated 8th May 2002.
2. Ins. by SO, 166 dated 14th Jan 1998.
3. Rule 20,21and 22 subs. by SO, 436(E) dated 29th May 1990.
BSF RULES 80
conduct which has led to his conviction by a criminal court
or a Security Force Court; or
(b) where the Central Government is satisfied that for
reasons, to be recorded in writing, it is not expedient or
reasonably practicable to give to the officer an oppo rtunity
of showing cause.
(2) When after considering the reports on an officers
misconduct, the Central Government or the Director General, as
the case may be, is satisfied that the trial of the Officer by a
Security Force Court is in -expedient or impracticable, but is of the
opinion, that the further retention of the said officer in the service
is undesirable, the Director General shall so inform the officer
together with particulars of allegation and report of investigation
(including the stat ements of witnesses, if any, recorded and copies
of documents if any, intended to be used against him) in cases
where allegations have been investigated and he shall be called
upon to submit, in writing, his explanation and defence:
Provided th at the Director General may with hold disclosure of
such report or portion thereof if, in his opinion, its disclosure is
not in the interest of the security of the State.
(3) In the event of explanation of the Officer being considered
unsatisfacto ry by the Director -General, or when so directed by the
Central Government, the case shall be submitted to the Central
Government with the Officers defence and the recommendations
of the Director -General as to the termination of the Officers
service in t he manner specified in sub -rule (4).
(4) When submitting a case to the Central Government under
the provision of sub -rule (2) or sub -rule (3), the Director -General
shall make his recommendation whether the Officers service
should be terminated, and if so, whether the officer should be, -
(a) dismissed from the service; or
(b) removed from the service; or
BSF RULES 81
(c) retired from the service; or
(d) called upon to resign.
(5) The Central Government, after considering the reports and the
officers defence, |
d) called upon to resign.
(5) The Central Government, after considering the reports and the
officers defence, if any, or the judgment of the Criminal Court, as
the case may be, and the recommendation of the Director -General,
may remove or dismiss the officer with or without pension, or
retire or get his resignation from service, and on his refusing to do
so, the officer may be compulsorily retired or removed from the
service with pension or gratuity, if any, admissible to him.
21. Termination of service of officers by the Central
Government on grounds other than mis -conduct - (1) When
the Director General is satisfied that an officer is unsuitable to
be retained in service, the officer. -
(a) shall be so informed;
(b) shall be furnished with particulars of all matters
adverse to him; and
(c) shall be called upon to urge any reasons he may
wish to put forward in favour of his retention in the
service:
Provided that clauses (a), (b) and (c) shall not apply, if the
Central Government is satisfied that, for reasons, to be record ed by
it in writing, it is not expedient or reasonably practicable to
comply with the provisions thereof:
Provided further that the Director -General may not furnish
to the officer any matter adverse to him, if in his opinion, it is not
in the i nterest of the security of the state to do so.
(2) In the event of the explanation being considered by the
Director General unsatisfactory, the matter shall be submitted to
the Central Government for orders, together with the officers
explanation and the recommendation of the Director -General.
BSF RULES 82
(3) The Central Government after considering the reports, the
explanation, if any, of the officer and the recommendation of the
Director General, may call upon the officer to retire or resign and
on his refusing to do so, the of ficer may be compulsorily retired
from the service with pension or gratuity, if any, admissible to
him.
22. Dismissal or removal of persons other than officers on
account of mis -conduct - (1) When it is proposed to terminate
the service of a per son subject to the Act other than an officer, he
shall be given an opportunity by the authority competent to dismiss
or remove him, to show cause in the manner specified in sub -rule
(2) against such action:
Provided that this sub -rule shall not apply -
(a) where the service is terminated on the ground of
conduct which has led to his conviction by a criminal
court or a Security Force Court; or
(b) where the competent authority is satisfied that,
for reasons to be recorded in writing, it is not expedient
or reasonably practicable to give the person concerned an
opportunity or showing cause.
(2) When after considering the reports on the mis -conduct of
the person concerned, the competent authority is satisfied that the
trial of such a person is inexpedien t or impracticable, but, is of the
opinion that his further retention in the service is undesirable, it
shall so inform him together with all reports adverse to him and he
shall be called upon to submit, in writing, his explanation and
defence:
Provided that the competent authority may withhold from
disclosure any such report or portion thereof, if, in his opinion its
disclosure is not in the public interest.
(3) The competent authority after considering his explanation
and defence if any may di smiss or remove him from service with
or without pension:
BSF RULES 83
Provided that a Deputy Inspector General shall not
dismiss or remove from service, a Subordinate Officer of and
above the rank of an Inspector.
(4) All cas es of dismissal or removal under this rule, shall be
reported to the Director General.]
23. Dismissal or removal by Central Government. -Where the
Central Government is satisfied, for reasons to be recorded in
writing, that : -
(i) it is not reasonably practicable to follow the
procedure laid down in the said rules, or
(ii) it is not expedient, in the interests of the security
of the State, to follow such procedure, it may order the
dismissal or removal from the Force of a person su bject to
the Act without following the procedure laid down in rules
20 and 21.
1 [23A. Termination of service on conviction on a criminal
charge. - When a person subject to the Act is convicted of a civil
offence the competent authority may dismiss or remove him from
service without holding any inquiry or issuing a show cause
notice.]
24. Retirement of subordinate officers and enrolled
persons. - A subordinate officer or an enrolled person shall on the
fulfillment of the terms and conditions of service under which he
was appointed or enrolled be eligible to retire.
25. Retirement of subordinate officer and enrolled persons
on grounds of physical unfitness. - 2[(1) Where a Commandant is
satisfied that a Subedar -Major, an Inspector], a Sub -Inspec tor, an
Assistant Sub -Inspector or an enrolled person is unable to perform
his duties by reason of any physical disability, he may direct that
the said Subedar -Major, the Inspector,]the Sub - Inspector, the
Assistant Sub -Inspector]or the enrolled person, as the case may be,
to be brought before a Medical Board.]
1. Ins. by SO,155(E) dated 1st Mar 1983 . 2.
Subs. by SO, 2628(E) dated 25th Nov 2011 .
BSF RULES 84
(2) The Medical Board shall be constituted in such manner as
may be determined by the Director General.
(3) 1[Where the said Subedar -Major, Inspector, Sub -Inspector,
Assistant Sub -Inspector or enrolled person is found by the Medical
Board to be unfit for further service in the Force, the Inspector
General, the Deputy Inspector -General or as the case may be, the
Commandant may, if he agrees with the finding of the Medical
Board order the retirement of the Subedar -Major, the Inspector,
the Sub -Inspector, the Assistant Sub -Inspector, as the case may be,
the enrolled persons:
Provided that before the said Subedar -Major or Inspector
or Sub -Inspector or Assistant Sub -Inspector or as the case may be,
the enrolled person is so retired the finding of the Medical Board
and the decision to retire him shall be communicated to him.
(4) The Subedar -Major, the Inspector, the Sub -Inspector, the
Assistant Sub -Inspector o r, as the case may be, the enrolled person
may, within a period of fifteen days from the date of receipt of such
communication, make a representation to the officer next superior
in command to the one who ordered the retirement.]
(5) The said superior o fficer shall have the case referred to a
Review Medical Board which shall be constituted in such manner
as may be determined by the Director -General.
(6) The superior officer may, having regard to the finding of
the Review Medical Board, pass such o rder as he may deem fit.
(7) Where a representation has been made to a superior officer
under sub -rule (4), an order passed under sub -rule (3), shall not
take effect till it is confirmed by such superior officer.
1 [26.Retirement of enrolled perso ns on grounds of
unsuitability .- Where a Commandant is satisfied that an enrolled
person is unsuitable to be retained in the Force, the Commandant
1. Subs by SO 2628(E) dated 25th Nov 2011.
2. Subs by SO 436(E) dated 29th May 1990.
BSF RULES 85
may, after giving such enrolled person an opportunity of showing
cause (except when he considers it to be impracticable or
inexpedient in the interest of security of the State, to give such
opportunity), retire such enro lled person from the Force.
27. 1[Retirement of subordinate officers on grounds of
unsuitability. - (1) Where a Deputy Inspector -General is satisfied
that a Sub -Inspector, or an Assistant Sub -Inspector is unsuitable to
be retained in the Force, he m ay, after giving such Sub -Inspector
1 [28A. Petition .-3[Any person subject to the Act, who considers himself
aggrieved by any order of termination of his service passed
or Assistant Sub -Inspector, as the case may be, an opportunity of
showing cause (except when he considers it to be impracticable or
inexpedient in the interest of security of State, to give such
opportunity), retire the said Sub -Inspector or Assistant Sub -
Inspector from the Force .
(2) Where an Inspector General is satisfied that an Inspector or
Subedar -Major is unsuitable to be retained in the Force, he may,
after giving such Inspector or Subedar -Major an opportunity of
showing cause (except when he considers it to be impracticable or
inexpedient in the interest of security of State, to give such
opportunity), retire such Inspector or Subedar -Major from the
Force.]
28. Power to be exercised by a superior officer or authority. -
Any power conferred by the provisions of this Chapter on an
officer may also be exercised by an officer or authority superior in
command to the first mentioned officer.
BSF RULES 87
under this Chapter may; in the case of an officer, present a petition
to the Central Government, in the case of an Assistant Sub
Inspector or a subordinate officer, present a petition to the Director
General and in the case of an enrolled person, present a petition to the
Inspector General, who may pass such orders on the petition as
deemed fit].
1. Subs. by SO, 2628(E) dated 25th Nov 2011
2. Ins. By SO, 436(E) dated 29th May 1990. 3. Subs. By SO 1866, dated 27th Jun 2003.
BSF RULES 86
Provided that the limitation period for filing such petition
shall be three months from the date of order of termination or from
the date of its receipt, whichever is later.
29. Passing of orders relating to absence from duty. -
Where an order of dismissal or of removal or of retirement of a
person subject to the Act is set aside, the officer or authority
setting aside such dismissal, removal or retirement shall pass such
orders as may be necessary in respect of the period of absence
from duty of the person whose dismissal, removal or retirement
has been set aside.
30. Date of dismissal, removal, resignation, retirement. - The
effective date of dismissal, resignation or retirement shall be
:-
(a) the date mentioned in the order of dismissal or
removal or order sanctioning or accepting resignation or
retirement, or
(b) if no such date is mentioned the date on which the
order was signed or the date on which the person
concerned is relieved from duties, whichever is later.
BSF RULES 88
CHAPTER - V
ARREST AND INVESTIGATION
31. Forms of arrest. - (1) Arrest may be either open arrest or close
arrest.
(2) An arrest, unless otherwise specified shall mean an open
arrest.
(3) An order imposing arrest may be communicated to the
person to be arrested either orally or in writing.
32. Auth ority to order arrest. - (1) No person subject to this Act
shall be arrested on a charge under the Act except under and in
accordance with the orders of a superior officer having power of
command over him.
(2) Notwithstanding anything contained in sub--rule (1) any
person subject to the Act may be placed under arrest by any
superior officer : -
(a) if he commits an offence against such superior
officer, or
(b) if he commits an offence in the view of such superior
officer, or
(c) if he is behaving in a disorderly manner and the said
superior officer considers it necessary to place such a person
under arrest with a view to stop such disorderly
behavior.
(3) A superior officer effecting arrest under sub -rule (2) shall
as soon as possible, an d in any case within twenty four hours of
such arrest send a report to the Commandant of the battalion or unit
of which the person arrested is a member and in case of the arrest
BSF RULES 89
of an officer of and above the rank of Commandant, to his
immediate superior officer.
33. Arrest how imposed. - (A) Close arrest - (1) (a) Close arrest in
the case of enrolled persons shall be imposed by informing the
person to be arrested and ordering him to be marched to the place
of confinement under an escort of persons of similar or superior
rank.
(b) Where no such escor t is available the person arrested
shall be ordered to report himself immediately to the
quarter guard or other place of confinement.
(2) (a) Close arrest in the case of officers, subordinate officers and
under officers, shall be imposed by plac ing such officer,
subordinate officer or under officer under the custody of
another person of similar or superior rank and wherever
considered necessary such officer, subordinate officer, or
under officer may be confined under charge of a guard.
(b) The person under arrest shall not leave his quarter or
tent without permission of a superior officer designated by
the Commandant in this behalf.
(B) Open arrest (3) (a) Open arrest shall be imposed by informing
the person to be arrested (whether he is an officer, subordinate
officer, under officer or an enrolled person) that he is under open
arrest and that he shall confine himself within such limits as may
be specified in this behalf by the concerned superior officer
effecting such arrest.
(b) The Commandant may, from time to time, vary the
limits referred to in clause (a) above |
(b) The Commandant may, from time to time, vary the
limits referred to in clause (a) above.
BSF RULES 90
34. Release from arrest during investigation. - (1) Any
person arrested under rule 1[32] may be released from arrest
under the order of an Assistant Commandant, Deputy
Commandant, Commandant or any officer superior to the
Commandant.
1. Subs. by SO, 2628(E) dated 25th Nov 2011
(2) Subject to the provisions of rule 35, no person except on the basis
of any fresh evidence against him be re -arrested.
35. Release without prejudice to re -arrest. - Pending the
completion of the investigation or convening of a Court any
person who has been placed under arrest may without
prejudice to re - arrest be released by his Commandant or by
any officer superior to his
Commandant.
36. Arrest when to be imposed. - (1) Any person charged with:
(i) an offence under section 14, or clause (a) or clause
(b) of section 16, or section 17 or section 20 or sub -section
(1) of section 21.
(ii) a civil offence punishable with d eath or
imprisonment for life.
(iii) any other offence under the Act: - (a) if the
interest of discipline so require, or
(b) if the person concerned deliberately undermines
discipline, or
(c) if the person concerned is of violent disposition, or
(d) if the pe rson concerned is likely to absent himself
with a view to avoid trial, or
(e) if the person concerned is likely to interfere with
witness or tamper with evidence, shall be placed
under arrest.
(2) Where any person arrested shows symptoms of sickness,
medical assistance shall be provided for such person.
37. Special provision in case of arrest of intoxicated person .-
(1) Where an intoxicated person has been arrested, he shall, as far
as possible, be confined separately and shall be visited
BSF RULES 90
by orderly officer or orderly subordinate officer or orderly under
officer or under officer in charge of the guard, once every two
hours.
(2) An intoxicated person shall not be taken before a superior officer
for investigation of his case until he has become sober.
38. Arrest in case of person whose trial has been ordered .- (1)
Unless the convening officer has otherwise directed, on the
commencement of the trial of a person by the Court, the said
person shall be placed under arrest and shall remain under arrest
during the trial.
(2) Where a sentence lower than imprisonment is passed by a
Court the arrested person shall be released by his Commandant
pending confirmation of the finding and sentence:
Provided that a person who has been sentenced to be
dismissed shall not, except while on active duty, be put on any duty.
39. Delay reports .- (1) (a) The report on reas ons for delay as
required under section 59 shall be in the form set out in Appendix
II and it shall be sent by the Commandant to the Deputy Inspector
General under whom the accused may be serving.
(b) A copy of the eighth delay report and every succeeding
report thereof shall also be sent to the Inspector General under whom
the accused may be serving.
(2) Where the accused is kept under arrest for a period exceeding
three months without being brought to trial, a special report
regarding the action taken and the reasons for the delay shall be
sent by the Commandant to the Director General with a copy each
to the Deputy Inspector General and the Inspector General
concerned.
40. Rights of a person under arrest .- (1) (a) A ny person
BSF RULES 91
placed under arrest shall, at the time of being placed under arrest,
be given in writing by the officer effecting the arrest the particulars
of the charges against him.
(b) The said particulars shall be rendered in simple
language and also explained to the accused.
(c) Notwithstanding anything contained in clause (a),
where during the investigation other offences committed by
the accused are discovered, it shall be lawful to charge such
person with those offences.
(2) (a) The orderly officer or the orderly Subordinate Officer shall
every day make a visit to the person under arrest and take
the orders of the Commandant on any request or
representation made by the person under arrest.
(b) The request or repr esentation made by the person
under arrest shall be entered in the form set out in
Appendix III.
1 [40A. (1) Not withstanding anything contained in these rules, the
appointing authority may, at its discretion, place a person serving
under him, und er suspension: -
(i) where a disciplinary action under the Act against
him is contemplated or is pending; or
(ii) where in the opinion of the authority aforesaid, he
has engaged himself in activities prejudicial to the interest or
the security of the state; or
(iii) where a case against him in respect of any civil
offence is under investigation, inquiry or trial.
2[Provided that the Director -General may exercise the
powers of suspension in respect of officers of the Force up to the
rank of Deputy Commandant.
Provided further that the Director -General shall report the
facts of each case immediately to the Centra l Government and all
such orders of suspension shall become ab -initio void unless
1 Ins. by SO,187(E) dated 23th Mar 1984.
2. Ins. By SO, 544 Dated 15th Feb 2002.
BSF RULES 92
confirmed by the Central Government within a period of one
month from the date of the said orders, irrespective of the fact that
the suspension is revoked by the said authority within that period.]
(2) A member of the Force shall be deemed to have been placed
under suspension by an order of the appointing authority: -
(i) with effect from the date of his detention by civil
police on a criminal charge or otherwise for a period
exceeding 48 hours; or
(ii) with effect from the date of his conviction by a
civil court on a criminal charge, if the sentence awarded is
imprisonment for a term exceeding 48 hours.
(3) An order of suspension made or deemed to have been made
under this rule shall continue to remain in force until it is modified
or revoked by the aut hority competent to do so.
1 [(3A) An order of suspension made or deemed to have been
made under this rule shall be reviewed by the authority competent
to modify or revoke such order before expiry of ninety days from
the effective date of suspensi on and pass an order either extending
or revoking the suspension and any subsequent review shall be
made before the expiry of such extended period of suspension:
Provided that no extension of suspension shall be made for
a period exceeding one hundr ed and eighty days a time.]
(4) An order of suspension made or deemed to have been
made under this rule, may at any time, be modified or revoked by
the authority which made the order or by any authority to which
that authority is subordinate.
(5) When a person remains under suspension for more than 90
days, a report giving reasons for delay in the finalisation of his
case shall be submitted to the Director General by the
Commandant of the accused and thereafter, subsequent reports
shall be submitted every month till the case is finalised or the order
of suspension is revoked whichever is earlier.]
1 Ins. by SO,2755(E) dated 6th Mar 2012.
BSF RULES 93
CHAPTER - VI
CHOICE OF JURISDICTION BETWEEN SECURITY FORCE
COURT AND CRIMINAL COURT
41. Trial of cases either by security force court or criminal
court. - (1) Where an offence is triable both by a criminal court and
a Security Force Court, an officer referred to in section 80 may, -
(i) (a) Where the offence is committed by the accused in the
course of the performance of his duty as a member of the
Force, or
(b) Where the offence is committed in relation to
property belonging to the Government or the Force o r a
person subject to the Act, or
(c) Where the offence is committed against a person
subject to the Act, direct that any person subject to the Act,
who is alleged to have committed such an offence, be tried
by a Court; and
(ii) in any other case, decide whether or not it would be
necessary in the interests of discipline to claim for trial by a
Court any person subject to the Act who is alleged to have
committed such an offence.
(2) In taking a decision to claim an offender for trial by a Cour t,
an officer referred to in section 80 may take into account all or
any of the following factors, namely :
(a) The offender is on active duty or has been
warned for active duty and it is felt that he is trying to
avoid such duty;
(b) the offender is a you ng person undergoing
training and the offence is not a serious one and the trial
of the offender by a criminal court would materially
affect his training;
(c) the offender can, in view of the nature of the
case, be dealt with summarily under the Act.
BSF RULES 94
42. Without prejudice to the provisions of sub -rule (1) of rule
41, an offender may not be claimed for trial by a Security Force
Court: -
( a) where the offence is committed by him along with
any other person not subject to the Act whose identity is
known; or
(b) where the offence is committed by him while on leave or during absence without
leave.
BSF RULES 95
CHAPTER - VII
INVESTIGATION AND SUMMARY DISPOSAL
43. Offence report .- Where it is alleged that a person subject to
the Act 1[other than an officer or a Subordinate Officer] has
committed an offence punishable there under the allegation shall
be reduced to writing in the form set out in Appendix IV.
2 [44. Charge Sheet .- Where it is alleged that an officer or a
subordina te Officer has committed an offence punishable under
the Act, the allegation shall be reduced to writing in the form set
out in Appendix VI.]
45. 2[Hearing of the charge against an enrolled person .- 3[(1)
The charge shall be heard by the Commandant of the accused in
the following manner :-
(i) The charge and statements of witnesses, if
recorded, shall be read over to the accused.
(ii) If written statements of witnesses are not
available, or where the Commandant considers it
necessary to call any wi tness, he shall hear as many
witnesses as he may consider essential to enable him to
determine the issue.
(iii) Wherever witnesses are called by the
Commandant, the accused shall be given opportunity to
cross -examine them.
(iv) Thereafter, the accuse d shall be given an
opportunity to make a statement in his defence .]
(2) After hearing the charge under sub -rule (1), the
Commandant may: -
(i) award any of the punishments which he is empowered
to award; or
1. Ins. by S.O. 436(E) dated 29.5.1990 2.
Subs. by ibid.
3. Subs by SO 2628(E) dated 25th Nov 2011
BSF RULES 96 (ii) dismiss the charge; or
(iii) remand the accused, for preparing a record of
evidence or for preparation of an abstract of
evidence against him; or
(iv) remand him for trial by a Summary Security Force
Court:
Provided that, in cases where the Commandant award s
more than 7 days imprisonment or detention he shall record the
substance of evidence and the defence of the accused:
Provided further that he shall dismiss the charge, if in his
opinion the charge is not proved or may dismiss it if he considers
that because of the previous character of the accused and the nature
of the charge against him it is not advisable to proceed further with
it:
Provided also that, in case of all offences punishable with
death a record of evidence shall be taken.
1[Provided further that in case of offences under Sections
14, 15, 17, 18 and offence of murder punishable under Section 46
of the Act, if the accused has absconded or deserted, the
Commandant shall hear the charge in his absence and remand the
case for pr eparation of the record of evidence.]
2 [45 A. Hearing of charge by an officer specified under Section
53 of the Act .- (1) A specified officer may proceed against an
enrolled person if, -
(a) the charge can be summarily dealt with; or
(b) the case has not been reserved by the Commandant
for disposal by himself; or
(c) the accused is not under arrest.
(2) After hearing the charge under sub -rule (1) of the Rule
45 the specified officer may, -
1. Ins. by SO,55(E) dated 01 Feb. 1999.
2. Ins. by SO, 436(E) dated 29th May 1990.
BSF RULES 97
(i) award any of the punishment which he is
empowered to award, or
(ii) dismiss the charge, or
(iii) refer the case to Commandant.
1 [45 B. Hearing of charge against an officer and a subordinate
officer. - (1) (a) The charge against an officer or a subordinate
officer shall be heard by his Commandant:
Provided that charge against a commandant, a Deputy
Inspector -General or an Insp ector -General may be heard either by
an officer commanding a Unit or Headquarters to which the
accused may be posted or attached or by his Deputy Inspector -
General, or his Inspector -General, as the case may be, the Director -
General.
2[(b) The charge sheet and statements of witnesses, if
recorded and relevant documents, if any, shall be |
2[(b) The charge sheet and statements of witnesses, if
recorded and relevant documents, if any, shall be read over
to the accused:]
Provided that where written statements of witnesses are not
available, or where the officer hearing the charge considers it
necessary, he shall hear as many witnesses as he may consider
essential to enable him to know about the case.
(c) Wherever witnesses are called by the officer
hearing the charge, the accused shall be given an
opportunity to cross -examine them.
(d) Therea fter, the accused shall be given an
opportunity to make a statement in his defence.]
(2) After hearing the charge under sub -rule (1), the officer who
heard the charge may : -
(i) dismiss the charge; or
1. Subs by SO, 436(E) dated 29th May 1990.
1 [Provided that he shall dismiss the charge if in his
opinion the charge is not proved or may dismiss it if he considers
that because of the previous character of the accused and the nature
of the charge against him, it is not advisable to proceed further
with it , and where a charge against an officer is dismissed on any
such ground, he shall record reasons for dismissing the same :
Provided further that where a case in respect of an officer has been
referred to for initiation of disciplinary action by a
2. Subs. by SO, 2628(E) dated 25th Nov 2011.
BSF RULES 98
(ii) remand the accused, for preparation of a record of
evidence or preparation of abstract of evidence against the accused:
superior authority, the officer hearing the charge shall not dismiss
the same without reference to such authority:
Provided also that in case of all offences punishable with
death, a record of evidence shall be prepared:]
2[Provided also that in ca se of offence under Section 14,
15, 17, 18 and offence of murder punishable under Section 46 of
the Act, if the accused has absconded or deserted, the Commandant
shall hear the charge in his absence and remand the case for
preparation of record of evide nce.]
46. Attachment to another unit .- The Commandant shall not deal
with any case : -
(i) where the offence with which the accused is
charged is against the Commandant himself; or
(ii) where the Commandant is himself a witness in the
case against the accused ; or
(iii) where the Commandant is otherwise personally
interested in the case, and the accused shall be attached to
another battalion or unit for disposal of the case under the
order of the Deputy Inspector -General:
1. Ins. by SO 2628(E) dated 25th Nov 2011 .
2. Ins by SO 55(E) dated 1st Feb 1999.
BSF RULES 99
Provided that a Commandant shall not be disqualified from
hearing a charge merely because the offence was committed
against the property of a Force Mes s, band or institution of which
the Commandant is a member or trustee or because the offence is
one of disobedience of such Commandants orders.
1[Provided further that a person may also be attached to any
Battalion, Unit, Headquarter or Establishmen t on the ground of any
service exigency under orders of his Deputy InspectorGeneral or
any other superior officer or Authority. ]
47. Charges not to be dealt with summarily .-A charge for an
offence under section 14 or section 15 or clauses (a) and (b) of
section 16 or section 17 or clause (a) of section 18 or clause (a)
section 20 or clause (a) section 24 or section 46(other than that for
simple hurt or theft) or a charge for abetment of or an attempt to
commit any of these offences shall not be dea lt with summarily.
48. Record of evidence .- (1) 2[The officer ordering the record
of evidence may either prepare the record of evidence himself or
detail another officer to do so.
(2) The witnesses shall give their evidence in the presence
of the a ccused and the accused shall have right to cross -examine
all witnesses who give evidence against him.
3[Provided that where statement of any witness at a court
of inquiry is available, examination of such a witness may be
dispensed with and the original copy of the said statement may be
taken on record. A copy thereof shall be given to the accused and
he shall have the right to cross - examine if he was not afforded an
opportunity to cross -examine the witness at the Court of
Inquiry.]
(3) After all the witnesses against the accused have been
examined, he shall be cautioned in the following terms; You
may make a statement if you wish to do so, you are not bound to
1. Ins by SO 2628(E) dated 25th Nov 2011 2.
Subs by SO 436(E ) dated 29th May 1990.
3. Ins by ibid.
BSF RULES 100
make one and whatever you state shall be taken down in writing
and may be used in evidence. After having been cautioned in the
aforesaid manner whatever the accused states shall be taken down
in writing.
(4) The accused may call witnesses in defence and the officer
recording the evidence may ask any question that may be
necessary to clarify the evidence given by such witnesses.
(5) All witnesses shall give evidence on oath or affirmation:
Provided that, no oath or affirmation shall be given to the
accused nor shall he be cross -examined.
(6) (a) The statements given by witnesses shall ordinarily be
recorded in narrative form a nd the officer recording the
evidence may, at the request of the accused, permit any
portion of the evidence to be recorded in the form of
question and answer.
(b) Witnesses shall sign their statements after the same
have been read over and explained to them.
1 [(6A) The provisions of section 89 of the Act shall apply
for procuring the attendance of the witnesses before the officer
preparing the Record of Evidence.]
(7) Where a witness cannot be compelled to attend or is not
available or his attendance cannot be procured without an
undue expenditure of time or money and after the officer
recording the evidence has given a certificate in this
behalf, a written statement signed by such witness may be
read to the accused and included in the r ecord of evidence.
(8) After the recording of evidence is completed the officer
recording the evidence shall give a certificate in following
form : -
Certified that the record of evidence
ordered by... ..Commandant...
.....................................................was
1 Ins by SO 329(E) dated
29thApril1981.
BSF RULES 101
made in the presence and hearing of the accused and the provisions
of rule 48 have been complied with.
49. Abstra ct of evidence. - (1) An abstract of evidence shall be
prepared either by 2[the officer ordering it] or an officer detailed by
him.
1 [48 A. If a person subject to the Act absconds or deserts the force
after commission of offences under Sections 14, 15, 17, 18 and
offence of murder punishable under Section 46 of the Act and
there is no immediate prospect of his apprehension, the officer
detailed to prepare the record of evidence shall examine the
witnesses in the absence of the accused and such evidence may, on
the apprehension of such accused, be given in evidence against him
at the trial by a Security Force Court, if such witness is dead or
incapable of giving evidence or cannot be found or his presence
cannot be procured without an amount of delay, expenses or
inconvenience which, under the circumstances of the case would be
unreasonable.
(2) (a) The abstract of evidence, shall include;
(i) signed statements of witnesses wherever available
or a precis thereof,
(ii) copies of all documents intended to be produced at
the trial.
(b) Where signed statements of any witnesses are not
available a precis of their evidence shall be included.
(3) A copy of the abstract of evidence shall be given by the
officer making the same to the accused and the accused
shall be given an opportunity to make a statement if he so
desires after he has been cautioned in the manner laid
down in sub -rule (3) of Rule 48:
Provided that the accused shall be given such time as may
be reasonable in the circumstances but in no case less than twenty
four hours after receiving the abstract of evidence to make his
statement.
1. Ins by SO 55 (E) dated 1st Feb 1999.
2. subs by SO 436(E) dated 1990.
BSF RULES 102
50. Investigation of cases by Police. -Where the Commandant
considers it necessary so to do, he may lodge a report with the
police for investigation of any case.
51. 1[Disposal of case against enrolled person by Commandant after
record or abstract of evidence. -
(1) Where an officer has been detailed to prepare the record of
evidence or to make an abstract thereof, he shall forward
the same to the Commandant.
(2) If the Commandant considers the evidence recorded
insufficient but considers that further evidence may be
available,
he may remand the case for recording additional evidence.
(3) The Commandant may, after going through the record or
abstract of evide nce including additional evidence, if any
:-
(i) 3[dismiss the charge after recording the reasons
therefor] ; or
(i) rehear the charge and award summary
punishments; or
(ii) try the accused by a Summary Security Force
Court where he is empowered so to do:
Provided that the Commandant while convening a
Court may reframe the charge; or
(iii) apply to a competent officer or authority to
convene a Court for the trial of the a ccused.]
2[51A. Disposal of case against an officer or a
subordinate officer after preparation of record of evidence or
abstract of evidence. - (1) Where an officer has been detailed to
prepare the record of evidence or to make an abstract thereo f, he
shall forward the same to 1[ the officer or authority who] ordered
for its preparation.
1. Subs by SO 2628(E) dated 25th Nov 2011.
2. Ins by SO 436(E) dated 29thMay 1990. 3. Ins by
SO, 1757(E) dated 19 April2017.
BSF RULES 103
1 [(2) If the officer or authority considers the evidence recorded
insufficient but considers that further evidence may be available,
he may remand the case for recording additional evidence.
(3) The officer or authority mentioned abov e, after going through
the record or abstract of evidence, including additional evidence, if any,
may-
(ii) 2[dismiss the charge after recording the reasons therefor ];
or
(iii) dispose of the case summarily if he is so em - powered; or
(iv) refer the case to competent superior officer for disposal; or
(v) apply to a competent officer or authority to convene a
General Security Force Court for the trial of the accused.]
52. Application for a Court. - An application for a Court shall be
made by the Commandant in the form set out in Appendix V to
these rules and shall be accompanied by five copies of the record
or abstract of evidence and charge sheet and such other documents
as are mentioned in that application form.
1. Subs. by SO 2628(E) dated 25th Nov 2011 2.
Ins by SO, 1757(E) dated 19 April2017.
BSF RULES 104
CHAPTER - VIII
ON CHARGES AND MATTERS ANTECEDENT TO TRIAL
53. Charge Sheet .- (1) A Charge Sheet shall contain the whole of
the issue or issues to be tried at one time and may contain more
than one charge, if the charges are founded on the same facts or
form part of a series of offences of same or similar
character :
Provided that a Charge under section 18, section 19,
section 29 and section 32 may be included in any charge sheet,
notwithstanding that other charges in that charge sheet are not
founded on the same facts or do not form part of a series of
offences of the same or similar character.
(2) Every charge sheet shall in its layout follow the appropriate
specimen set out in Appendix VI to these rules.
54. Charges .-(1) There shall be a separate charge for each offence.
(2)
(a) If a single act or series of acts is of such a nature that it
is doubtful which of several offences the facts which can be
proved will constitute, the accused may be charged with having
committed all or any of such offences, and any number of such
charges may be tried at once or he may be charged in the
alternative with having committed some one of the said
offences.
(b) The charge for the more serious offence shall precede
the one for the less serious offence.
(3)
Each charge shall consist of two parts, namely:
(a) statement of offence, and
(b) particulars of the offence.
BSF RULES
105
(4)
The offence shall be stated, if not a civil offence, as nearly
as practicable, in the words of the Act, and if a civil
offence, in such words as would sufficiently describe that
offence.
(5) (a) The particulars shall state the time and place of the
alleged offence and the person (if any) against whom, or
the thing (if any) in respect of which, it was committed and
these should be sufficient to give the accused notice of the
matter with which he is charged.
(b) In case such particulars are not suffici ent to give
the accused notice of the matter with which he is |
is charged.
(b) In case such particulars are not suffici ent to give
the accused notice of the matter with which he is charged,
the charges shall also contain such particulars of the
manner in which the offence was committed as will be
sufficient for that purpose.
55. Joint charges. - (1) Any number of accused may be charged jointly and
tried together for an offence averred to have
been committed jointly by them.
(2) Any number of accused though not charged jointly may
also be tried together for an offence averred to have be en
committed by one or more of them and abetted by other or others.
(3) Where the accused are so charged under sub -rule (1) or
sub-rule (2), any one or more of them may be charged with, and
tried for, any other offence with which they could have be en
charged under sub -rule (1) of rule 53.
56. Validity of charge sheet. - A charge sheet shall not be invalid merely by
reason of the fact that it contains any mistake in the name or description
of the accused, and in the construction of a charge sheet t here shall be
presumed in favour of supporting it every proposition which may
reasonably be presumed to be
impliedly included, though not expressed therein, and the statement
of the offence and the particulars of the offence shall be read and
constru ed together.
BSF RULES 106
57. Amendment of the charge by the Security Force
Court. - (1) At any time during a trial, if it appears to the court that
there is in the charge sheet;
(a) a mistake in the name or description of the
accused, or
(b) a mistake which is attributable to a clerical error
or omission, the Court may amend the charge -sheet so as
to correct the mistake.
(2) If at any time during a trial, at which there is a Law Officer,
it appears to the Court, before it closes to deliberate on its findings,
that it is desirable in the interests of justice to make any addition
to, omission from or alteration in, a charge which cannot be made
under sub -rule (1) of this rule i t may, if such addition, omission,
or alteration can be made without unfairness to the accused, and
with the concurrence of the Law Officer, so amend the charge.
(3) If at any time during a trial, at which there is no Law
Officer, it appears to the Court, before it closes to deliberate on its
finding, that in the interests of justice it is desirable to make any
addition to, omission from or alteration in a charge which cannot
be made under sub -rule (1) of this rule, it may adjourn and report
its op inion to the convening officer, who may : -
(a) amend the charge if permissible under Rule 58 and
direct the Court to try it as amended after due
notice of the amendment has been given to the
accused; or
(b) direct the Court to proceed with the trial of t he
charge without amending it; or
(c) convene a fresh Court to try the accused.
58. Amendment of charge by Convening Officer. - When a
Security Force Court reports to the convening officer under either
Rule 57 or Rule 73 he may amend the charge in
BSF RULES 107
respect of which the Court has reported to him by making any
addition to, omission from or alteration in the charge which, in his
opinion, is desirable in the interests of justice and which he is
satisfied can be made without unfairness to the accused.
1 [CONVENING OF GENERAL AND PETTY SECURITY
FORCE COURTS]
59. Action by a Superior Authority on receiving an application
for convening a court. - (1) As soon as a superior officer receives
an application for convening a court, he shall scrutinise the charge
and the evidence against the accused, where necessary in
consultation with the 3[***] Law Officer and he:
(i) shall direct the Commandant to dismiss the charge
where the evidence against the accused is insufficient and
further evidence is not likely to be available and may
direct him to do so if he considers it inadvisable to proceed
with the trial; or
(ii) may return the case to Commandant for being
tried by a Summary Security Force Court or being dealt
with summarily if he considers that the same can be
adequately so tried or dealt with; or
(iii) 2[may return the case for recording further
evidence, if he considers the evidence recorded
insufficient but considers that further evidence may be
available; or
(iv) may dispose of the case administratively under
chapter IV of these rules if competent to do so, or refer it
to the competent autho rity for disposal, where he is of the
opinion that the charge against a person is serious but the
trial by Security Force Court is inexpedient or not
reasonably practicable for the reasons to be recorded in
writing; or
1. Subs by SO 329(E) dated 2 9th April 1981.
2. Subs by SO 2628(E) dated 25th Nov 2011.
3. Omitted by SO, 1757(E) dated 19 April2017.
BSF RULES 108
(v) may, after recording the reasons, dispose of the case
administratively under chapter XIV A of these rules if
competent to do so, or refer it to the competent authority
for disposal, where he is of the opinion that the charge
against the officer or t he subordinate officer, as the case
may be, does not deserve to be dismissed but also not so
serious as to warrant trial by a Security Force Court.]
(2) (a) In any other case he may either himself convene a Court or
if he considers that a higher type of Court should be
convened and he is not empowered to convene such a
Court, forward the case to a higher authority with
recommendation that such Court may be convened.
(b) The higher authority on receiving the case may
exercise any of the p owers given in sub -rule (1) of this
rule:
Provided that a superior officer or higher authority before
convening a General Security Force Court or a Petty Security
Force Court 1[***] shall take the advice of the Chief Law Officer
or a Law officer.
Provided further that the superior authority or higher
authority while convening a Court may reframe the charge sheet on
which the accused is to be tried.
60. 2[Disqualification of officers for serving on General
and Petty Security Courts.] - An officer shall be disqualified
from serving on a Court if he : -
(i) is an officer who convened the Court; or
(ii) is the prosecutor or a witness for the prosecution;
or
(iii) has taken any part in the investigation of the case,
which would have necessitated his applying his
mind to any part of the evidence, or to the facts of
the case; or
1. omitted by SO 329(E) dated 29th April 1981.
2. Subs by ibid.
BSF RULES 109
(iv) is the Commandant of the accused; or (v) has a
personal interest in the case.
61. 1[Composition of General and Petty Security Force
Courts .-(1) A court shall consist, as far as practicable, of officers
of differe nt battalions 2[or units].
(2) The members of a court for the trial of an officer shall be
of a rank not lower than the rank of that officer, unless in the
opinion of the convening officer, officers of such rank are not,
having due regard to the exigenc ies of public service, available.
Such opinion shall be recorded in the convening order.
(3) A court for the trial of a Commandant, shall as far as
possible, consist of officers who are or have been commandants or
who hold, or have held, a higher appointment.
62. Duties of convening officers when convening courts. - When an officer
convenes a Court he shall:
(a) issue a convening order in the appropriate form set
out in Appendix VII;
(b) direct upon what charges the accused is to be tried
and ensure that the accused has been remanded for
trial by a Court upon these charges, by his
Commandant;
(c) if he is of the opinion that charges shall be put in
separate charge sheets, so direct and shall also
direct the order in which they are to be tried;
(d) direct, if there is more than one accused whether
the accused are to be tried jointly or separately;
(e) appoint members of the Court and any waiting
members;
(f) if convening:
(i) a General Security Force Court; or
1. Subs by SO 329(E) dated 29th April 1981.
2. Ins by SO 436(E) dated 29th May 1990.
BSF RULES 110
(ii) a Petty Security Force Court which he considers should
be attended by a Law Officer, take the necessary steps to
procure the appointment of Law Officer by or on behalf of
the Chief Law Officer:
(g) appoint an officer, subject to the Act or a counsel
assisted by such an officer to prosecute or detail a
Commandant to appoint an officer subject to the
Act, to prosecu te:
Provided that the convening officer may appoint more than
one such officer to prosecute if he thinks fit;
(h) appoint an interpreter wherever necessary;
(i) send to the senior member the charge sheet, the
convening order and a copy of the record or
abstract of evidence from which any evidence
which in his opinion would be inadmissible at the
trial has been expurgated;
(j) forward to each member of the Court and to each
waiting member a copy of the charge -sheet;
(k) forward to the prosecutor copies of the charge
sheet and convening order and the original record
or abstract of evidence together with an
unexpurgated copy there of showing the passages
(if any) which have been expurgated in the copy
sent to the senior member;
(1) forward to the Law Officer (if any) copies of the
charge sheet and convening order and an unexpurgated
copy of the record or abstract of evidence showing the
passages (if any) which have been expurgated in the copy
sent to the senior member;
(m) ensure that the C ommandant has summoned all the
prosecution witnesses and such defence witnesses as the
accused may have requested to be summoned under rule
64.
63. Preparation of defence by the accused. - (1) An
accused, who has been remanded fo r trial, shall be afforded proper
opportunity for preparing his defence and shall be allowed proper
BSF RULES 111
communication with his defending officer or counsel and with his
witnesses.
(2) A defendin g officer shall be appointed to defend an
accused who has been remanded for trial unless the accused
states in writing that he does not wish such an appointment to
be made.
(3) if the prosecution is to be undertaken by a legally
qualified officer or by a counsel the accused shall be notified of
this fact in sufficient time to enable him, if he so desires to
make arrangement for a legally qualified officer or counsel to
defend him.
(4) As soon as practicable after a decision has been taken to
place the accused on trial and in any case not less than four days
before his trial he shall be given;
(a) a copy of the charge -sheet;
(b) an unexpurgated copy of the record or abstra ct of
evidence showing the passages (if any), which
have been expurgated in the copy sent to the senior
member;
(c) notice of any additional evidence which the
prosecution intends to adduce; and
(d) if the accused so requires, a list of the ranks, names
and units of the members who are to form the
Court and of any waiting members.
(5) when an accused is given a copy of the charge -sheet and
of the record or abstract of evidence in accordance with this rule,
he shall:
(a) have the charge explained to him; and
(b) be informed that, upon his making a written
request to his Commandant not less than twenty
four hours before his trial requiring the attendance
at his trial of a witness (other than a witness for
the prosecution) whom he desire to call in h is
defence (such witness to be
BSF RULES 112
named by him), reasonable steps will be taken in
accordance with these rules to procure the attendance of
any such witness at his trial.
(6) The provisions of sub -rules (2) and (3) shall not apply in
relation to a trial before a Summary Security Force Court and in
relation to such a trial the period of four days referred to in subrule
(4) shall be construed as twenty four hours.
SUMMONING OF DEFE NCE WITNESSES
64. (1) Subject to the provisions of sub -rules (2) and (3) the
Commandant shall, on a request made in this behalf by the
accused, summon such witnesses as are specified by the accused.
(2) Where the Commandant is satisfied that the evidence to be
given by any witness is not likely to be of material assistance at
the trial he may refuse to summon such witness.
(3) The Commandant may before summoning any witness,
require the accused to defray or undertake to defray the cost of
attendance of such witness and if the accused refuses to defray or
undertake to defray the cost aforesaid, the Commandant may refuse
to procure the attendance of that witness.
(4) Where the Commandant has refu sed to summon the
witness under sub -rule (2) or sub -rule (3), the accused may make
an application to the Court for the summoning of such witness and
the Court may, if it considers it to be expedient in the interest of
justice, order the summoning of su ch witness and, if necessary,
adjourn the proceedings for the attendance of such witness.
BSF RULES 113
CHAPTER - IX
PROCEDURE FOR SECURITY FORCE COURTS
65. Assembly and Swearing of Court. - |
PROCEDURE FOR SECURITY FORCE COURTS
65. Assembly and Swearing of Court. - (1) Upon a Security
Force Court assembling the Court shall, before beginning the trial,
satisfy itself in closed court : -
(a) that the Court has been convened in accordance
with the Act and these rules;
(b) that the Court consists of not less than the
minimum number of officers required by law;
(c) that the members are of the required rank;
(d) that members have been duly appointed and are
not disqualified under the Act;
(e) that if there is Law Officer he has been duly
appointed;
(f) that the accused appe ars from the charge -sheet, to
be subject to the Act and to be subject to the
jurisdiction of the Court; and
(g) that each charge is correct in law and framed in accordance
with these rules;
(2)
(a) Where a vacancy occurs through a member of the
court being disqualified under the Act or being absent
when the Court assembles, the presiding officer may
appoint a duly qualified waiting member to fill that
vacancy.
(b) The Presiding Officer may if the interests of
justice so require, substitute a duly qualified waiting
member for a member appointed by the convening officer.
(3)
if the court is not satisfied on any of the matters mentioned
in sub -rule (1) and is not competent to rectify such matter
itself
BSF RULES 114
under the Act or these rules, it shall before commencing the trial,
report thereon to the convening officer.
(4) When the Court has complied with this rule and is ready to
proceed with the trial, the presiding officer shall open the Court
and the trial shall begin.
66. Commencement of Trial. - (1) The order convening the
Court and the names of the offic ers appointed to try the accused
shall be read in the hearing of the accused who shall be given an
opportunity to object to any of those officers in accordance with
section 84 of the Act.
(2) When a Court is to try more than one accused whether
separately or jointly, each accused shall be given an
opportunity to object to any officer on the Court in
accordance with the foregoing sub -rule and shall be asked
separately whether he has any such objection.
each officer shall be disposed of sep arately and the
objection to the lowest in rank shall be disposed of first.
section(3) of section 84 that officer shall forthwith retire and take
no further part in the proceedings.
(9) When an officer objected to retires and there is duly
qualifi ed waiting member in attendance, the presiding officer
shall immediately appoint him to take the place of the officer who
has retired.
(10) The Court shall satisfy itself that a waiting member who
takes the place of a member of the Court is of the required rank
and not disqualified under the Act and shall give the accused an
opportunity to object to him and shall deal with any such objection
in accordance with the Act and these rules.
(11) If as the resul t of the allowance of an objection to a
member there are insufficient officers available to form a Court in
compliance with the Act the Court shall report to the convening
officer without proceeding further with the trial and convening
officer may eith er appoint an officer as a member to fill the
vacancy or convene a fresh Court to try the accused.
67. Swearing or Affirming of Members. - As soon as the Court
is constituted with the proper number of officers who are not
objected to or objectio ns in respect of whom have been overruled (5)
(6)
(7)
(8)
BSF RULES An accused may make a statement and call any person to make a
statement in support of his objection.
An officer to whom the accused has objected may state in
open Court anything relevant to the objection of the
accused whether in support or in rebut tal thereof.
An objection to an officer shall be considered in closed
Court by all the other officers on the Court and the officer
objected to shall not be present at that time.
When an objection to an officer is allowed under sub -
115
(3)
An accused shall state the names of all the officers to whom he
objects before any objection is disposed of.
(4) If more than one officer is objected to; the objection to
an oath or affirmation shall be administered to every member in
presence of the accused in one of the following forms or in such
other form to the same purport as the Court ascertains to be
according to his re ligion or otherwise binding on his conscience.
FORM OF OATH
I, ... ...................................................... .swear by Almighty God, that I will, well and truly, tr y
the accused ( or accused persons), before the Cou rt, according to
the evidence and that I will, duly administer justice, according to
the Border Security Force Act, 1968, without partiality, favour or
affection; and I do further swear that I will not, on any account, at
any time, whatsoever, disclose
BSF RULES 116
or discover, the vote or opinion of any particular member of the
Court unless required to give evidence thereof by a court of law.
FORM OF AFFIRMATION
I,... .......................................do solemnly, sincerely and truly,
declare and affirm, that I will well and truly, try the accused (or
accused persons), before the court, according to the evidence, and
that I will, duly administer justice according to the Border Security
Force Act, 1968, without partiality, favour or affection; and I do
further solemnly, sincerely and truly declare and affirm that I will
not, on any account at any time whatsoever, disclose or discover,
the vote or opinion of any particular member of this Court unless
required to give evidence thereof by a Court of Law.
68. Swearing or Affirmation of Law Officer and other
officers. - After the members of the Court are all sworn or have
made affirmation, an oath or affirmation shall be administered to
the follo wing persons or such of them as are present at the Court in
such of the following forms as shall be appropriate, or in such other
form to the same purport as the Court ascertains to be according to
the religion or otherwise binding on the conscience of the person
to be sworn or affirmed.
(A) LAW OFFICER
FORM OF OATH
I,... ............................... ..swear by Almighty God that I
will, to the best of my ability, carry out the duties of Law Officer,
in accordance with the Border Security Force Act, 1968, and the
rules made thereunder without partiality, favour or affection, and I
do further swear that I will not, on any account at any time
whatsoever, disclose or discover the vote or opinion on any matter
of any particular member of this Court, unless required to give
evidence thereof by a court of law.
BSF RULES 117 FORM OF AFFIRMATION
I,... ................................ ..do hereby, solemnly, sincerely
and truly declare and affirm that I will, to the best of my ability,
carry out the duties of Law Officer in accordance with the Border
Security Force Act, 1968 and the rules made thereunder without
partiality, favour or affection, and I do further solemnly, sincerel y
and truly declare and affirm, that I will not, on any account, at any
time, whatsoever, disclose or discover the vote or opinion, on any
matter, of any particular member of this Court, unless, required to
give evidence thereof by a court of law.
(B) OFFICER ATTENDING FOR THE PURPOSE OF
INSTRUCTION :
FORM OF OATH
I, ... ............................... ...swear by Almighty God that I
will not on any account; at any time whatsoever disclose or
discover the vote or op inion of any particular member of this Court
unless required to give evidence thereof by a court of law.
FORM OF AFFIRMATION
I,... ......................................... .do solemnly, sincerely and
truly,
declare and affirm that I will not on any account, at any time
whatsoever, disclose or discover the vote or opinion of any
particular member of this Court unless required to give evidence
thereof by a court of law.
(C) SHORTHAND WRITER:
FORM OF OATH
I, ... ... ............................ ...swear by Almighty God that I
will
truly take down to the best of my power, the evidence to be given
before this Court and such other matters as I may be required to
take down and will, when required, deliver to the Court a true
transcript of the same.
BSF RULES 118 FORM OF AFFIRMATION
I,... .......................... .do solemnly, sincerely and truly,
declare and affirm, that I will truly take down to the best of my
power the evidence to be given before this Court and such other
matters as I may be required to take down and will, when required,
deliver to the court a true transcript of the same.
(D) INTERPRETER
FORM OF OATH
I, ... ............................ ...swear by Almighty God that I
will faithfully, interpret and translate, as I shall be required to do,
touching the matter before this Court.
FORM OF AFFIRMATION
I, ... ........................................ .do solemnly, sincerely and
truly declare and affirm that I will faithfully interpret and translate,
as I shall be required to do, touching the matter before this Court.
69. Objection to Interp reter or Shorthand Writer. - A
person shall not be sworn or affirmed as an interpreter or shorthand
writer, if he is objected to by the accused unless the Court, after
hearing the accused and the prosecutor, disallows such objection
as being unreasonab le.
70. Objection to Law Officer and Prosecutor. - The
accused shall not be permitted to object to the Law Officer or the
prosecutor.
71. Arraignment .-(1) When the Court and the Law Officer (if
any) have been sworn, the charge shall be read to the accused and
shall be asked whether he pleads guilty or not guilty to the charge
or charges.
(2) if there is more than one charge, against the accused he shall
be required to plead separately to each charge.
BSF RULES 119
(3) If there is more than one charge -sheet, against the accused,
before the Court, the Court shall proceed with the charges in the
first of such charge -sheets and shall announce its finding thereon
and if the accused has pleaded guilty, comply with rule 78, before
it arraigns him upon the charges in any subsequent charge -sheet.
72. Plea to Jurisdiction .- (1) The accused, before pleading to the
charge, may offer a plea regarding the jurisdiction of the Court;
and in such a case -
(a) the a ccused may adduce evidence in support of
the plea and the prosecutor may adduce evidence in
answer thereto ; and
(b) The prosecutor may address the Court in answer
to the plea and the accused may reply to the prosecutors
address.
(2) If the Court all ows the plea it shall adjourn and report to
the convening officer.
(3) When the Court reports to the convening officer under this
rule, the convening officer shall : -
(a) if he approves the decision of the Court to allow
the plea, di ssolve the Court;
(b) if he disapproves the decision of the court; either
:-
(i) refer the matter back to the Court and direct them
to proceed with the trial ; or
(ii) convene a fresh Court to try the accused.
73. Objection to the charge. - (1) An accu sed before pleading to a
charge may object to it on the grounds that it is not correct in law
or is not framed in accordance with these rules and if he does so,
the prosecutor may address the Court in answer to the objection
and the accused may reply to the prosecutors address.
BSF RULES 120
(2) If the Court upholds the objection, it shall either amend the
charge if permissible under rule 57 or adjourn and report to the
convening officer:
Provided that if there is another charge or another charge
sheet before the Court, the Court may, before adjourning under this
rule, proceed with the trial of such other charge or other
chargesheet.
(3 ) When the Court reports to the convening offi cer under this
rule, the convening officer shall: -
(a) if he approves the decision of the Court to allow
the objection: -
(i) dissolve the Court; or
(ii) where there is another charge or another charge -
sheet before the Court to which the objection does
not relate and which the Court has not tried, direct
the Court to proceed with the trial of such other
charge or charge - sheet only, or
(iii) amend the charge to which the objection relates if
permissible under rule 58 and direct the Court to
try it as a mended,
(b) If he disapproves the decision of the Court to allow
the objection: -
(i) direct the Court to try the charge, or
(ii) where there is another charge or another charge -
sheet before the Court to which the objection does
not relate and which the Cour t has not tried, direct
the Court to proceed with the trial of such other
charge or charge - sheet only, or
(iii) convene a fresh Court to try the accused.
74. Plea in bar of trial .- (1) An accused before pleading to
BSF RULES 121
a charge may offer a plea that the trial is barred under section 75 or
section 76. If he does so : -
(a) the accused may adduce evidence in support of
the plea and the prosecutor may adduce evidence in
answer thereto, and
(b) the prosecutor may address the Court in answer
to the plea and the accused may reply to the prosecutors
address.
(2) If the Court allows the plea it shall adjourn |
plea and the accused may reply to the prosecutors
address.
(2) If the Court allows the plea it shall adjourn and report to
the convening officer :
Provided that if there is another charge or another charge -
sheet before the Co urt, the Court may, before adjourning under this
rule, proceed with the trial of such other charge or other
chargesheet.
(3) When a Court reports to the convening officer under this
rule, the convening officer shall: -
(a) if he approves the decision o f the Court to allow the
plea,
(i) dissolve the Court; or
(ii) where there is another charge or
another charge - sheet before the Court
to which the plea does not
(relate and which the Court has) not tried, direct
the Court to proceed with the trial of such other
charge or charge - sheet only,
(b) if he disapproves the decision of the Court to allow the
plea : -
(i) direct the Court to try the charge; or
(ii) where there is another charge or another charge -
sheet before the Court to which the plea does not
relate and which the Court has not tried direct the
Court to proceed with the trial of such other
charge or charge - sheet only; or
BSF RULES 122
(iii) convene a fresh Court to try the accused.
75. Application for separate trial .- (1) Where two or more
accused are charged jointly, any one of the accused may, before
pleading to the charge, apply to the Court to be tried separately on
the ground that he would be prejudiced in his defence if he were
not tried separately.
(2) Where the accused makes such an application, the
prosecutor may address the Court in answer thereto and the
accused may reply to the prosecutors address.
(3) Where the Court is of the opinion that the interests of
justice so require it shall allow the application and try separately
the accused who made it.
76. Application for trial on separate charge -sheet. - (1) Where a
charge -sheet contains more than one charge, the accused may,
before pleading to the charges, a pply to the court to be tried
separately on any charge in that charge -sheet on the ground that he
would be prejudiced in his defence if he were not tried separately
on that charge.
(2) Where the accused makes such an application, the
prosecutor may addres s the Court in the answer thereto and the
accused may reply to the prosecutors address.
(3) Where the Court is of the opinion that interests of justice
so require it shall allow the application and try the accused
separately on the charge to which it r elates as if that charge had
been inserted in a separate charge -sheet.
77. Pleading to the charge. - (1) After any plea under rules 72
and 74 and any objection unde r rule 73 and any applications under
rules 75 and 76 have been dealt with, the accused shall be required
subject to sub -rule (2) to plead either guilty or not guilty to each
charge on which he is arraigned.
(2) Where a Court is empowered by sec tion 93 to find an
BSF RULES 123
accused guilty of an offence other than that charged or guilty of
committing the offence in circumstances involving a less degree
of punishment or where it could after hearing the evidence, make
a specia l finding of guilty subject to exceptions or variations in
accordance with rule 99 the accused may plead guilty to such other
offence or to the offence charged as having been committed in
circumstances involving a less degree of punishment or to the
offence charged subject to such exceptions or variations.
78. Acceptance of Plea of guilty .-(1) Where an accused pleads
guilty to a charge under either sub -rule (1) or sub --rule (2) of rule
77, the presiding officer or Law Officer shall, before th e Court
decides to accept the plea, explain to the accused the nature of the
charge and the general effect of his plea and in particular the
difference in procedure when an accused pleads guilty and when
an accused pleads not guilty.
(2) A Court shall not accept a plea of guilty under either sub - rule
(1) or sub -rule (2) of rule 77, if, -
(a) the court is not satisfied that the accused
understands the nature of the charge or the effect of his
plea; or
(b) the presiding officer having regard to all the
circumstances, considers that the accused should plead not
guilty; or
(c) the accused is liable, if convicted, to be sentenced
to death;
(3)
(a) In the case of a plea of guilty under rule 79, a Court
shall not accept the plea unless the convening officer concurs
and it is satisfied of the justice of such course.
(b) The concurrence of the convening officer may be
signified by the prosecutor.
(4)
When a plea of guilty under either sub -rule (1) or
BSF RULES 124
sub-rule (2) of rule 77 is not accepted by the Court or the
accused either refuses to plead to the charge or does not
plead to it intelligibly, the Court shall record a plea of not
guilty.
(5) When a Court is satisfied that it can properly accept a pl ea of
guilty under either sub -rule (1) or sub -rule (2) of rule 77, it shall
record a finding of guilty in respect thereof.
79. Plea on alternative charge .- (1) When an accused pleads
guilty to the first of two or more alternative charges, the Court , if
it accepts the accuseds plea of guilty, shall record a finding of
guilty in respect of the first charge and the prosecutor shall
withdraw any alternative charge before the accused is arraigned
on it.
(2) When an accused pleads guilty to one of two or more charges
which are laid in the alternative other than the first of such
charges, the Court may: -
(a) proceed as if the accused had pleaded not guilty to
all the charges; or
(b) (i) With concurrenc e of the convening officer
(which may be signified by the prosecutor) record
a finding of guilty on the charge to which the
accused has pleaded guilty and a finding of not
guilty on any alternative charge which is placed
before it in the chargesheet.
(ii) Where the Court records such finding the prosecutor
shall before the accused is arraigned on it withdraw any
charge which is alternative to the charge of which the Court
has found the accused guilty and which is placed after it in
the charge -sheet.
80. Order of trial where plea of guilty and not guilty. -
(1) After the Court has recorded a finding of guilty, if
there BSF RULES 125
is no other charge in the same charge -sheet to which the accused
has pleaded not guilty and no other accused who has pleaded not
guilty to a charge in that charge -sheet, it shall proceed with the trial
as directed by rule 81.
(2) Where there is another charge in the charge -sheet to which the
accused has pleaded not guilty or there is another accused who has
pleaded not guilty to a charge in that charge -sheet, the Court shall not
comply with rule 81 until after it has dealt with such other charge or
tried such other accused and has annou nced and recorded its finding
in respect thereof.
81. Procedure on plea of guilty .- (1) When the Court has
recorded a finding of guilty in respect of a charge to which an
accused had pleaded guilty the prosecutor shall read the record or
abstract of evidence to the Court or inform the Court of the facts
contained therein:
Provided that if an expurgated copy of the record or
abstract of evidence was sent to the presiding officer, the
prosecutor shall not read to the Court those parts of the reco rd or
abstract of evidence which have been expurgated or inform the
Court of the facts contained in those parts, and shall not hand the
original record or abstract of evidence to the Court until the trial is
concluded. (2) 1[* * *].
(3)
After 2[sub-rule (1) has] been complied with, the accused may, -
(a) adduce evidence of character and in mitigation of
punishment;
(b) address the Court in mitigation of punishment.
(4)
After sub -rule (3) has complied with, the court shall proceed as directed
in rule 101.
82. Change of plea .- (1) An accused who has pleaded not
1. Omitted By SO 436(E) dated 29th May 1990.
2.
Subs. By ibid.
BSF RULES 126
guilty may at any time before the Court closes to deliberate on its
finding withdraw his plea of not guilty and substitute a plea of
guilty [including a plea of guilty under rule (79)] and in such a case
the Court shall, if it is satisfied that it can accept the accuseds
changed plea under these r ules, record a finding in accordance
with the accuseds changed plea and so far as is necessary proceed
as directed by rule 81.
(2) Where at any time during the trial it appears to the Court
that an accused who has pleaded guilty does not understand the
effect of his plea or the nature of the charge the Court shall enter a
plea of not guilty and proceed with the trial accordingly.
(3) When the Court records a plea of not guilty in respect of
any charge under sub -rule (2) it shall, if there was a charg e laid in
the alternative thereto which the prosecutor withdrew under rule
79 reinstate such alternative charge, arraign the accused thereon
and proceed with the trial as if it had never been withdrawn.
83. Procedure on pleas of not guilty .- After a plea of not guilty
to any charge has been recorded : -
(i) the Court shall ask the accused whether he wishes to apply for
an adjournment on the ground that any of these rules
relating to procedure before trial have not been complied
with and that he has been prejudiced thereby or on the
ground that he has not had sufficient opportunity for
preparing his defence;
(ii) where the accused applies for an adjournment;
(a) the accused may adduce ev idence in support of his
application and the prosecutor may adduce evidence in
answer thereto; and
(b) the prosecutor may address the Court in answer to
the application and the accused may reply to the
prosecutors address.
(iii)
the Court may grant an adjournment if it thinks the interests of justice
so require.
BSF RULES
127
84. Opening Address. - (1) The prosecutor may, if he so
desires, and shall, if required by the Court, make an opening
address explaining the charge and the nature and general effect
of the evidence which he proposes to adduce.
(2) The witnesses for the prosecution shall then be called and give
their evi dence.
85. Additional Witness .- Where the prosecutor intends to
adduce evidence which is not contained in any record or abstract
of evidence given to the accused notice of such intention together
with the particulars of the evidence shall, when pract icable, be
given to the accused a reasonable time before the evidence is
adduced. If such evidence is adduced without such notice or
particulars having been given, the Court may, if the accused so
desires either adjourn after receiving the evidence or allow any
cross -examination arising out of that evidence to be postponed,
and the Court shall inform the accused of his right to apply for such
an adjournment or postponement.
86. Dropping Witnesses .- The prosecutor shall not be bound
to call all t he witnesses against the accused whose evidence is
contained in the record or abstract of evidence, nor a witness when
he has notified the accused that he intends to call under rule 85,
but if the prosecutor does not intend to call such witness to give
evidence, he shall either tender him for cross -examination by the
accused, or give the accused reasonable notice that he does not
intend to call the witness and that the accused will be allowed to
communicate with him and to call him as a witness for the defence,
if he so desires and if the witness is available.
87. Withdrawal of Witnesses .-During a trial a witness other
than the prosecutor or accused shall not, except by leave of the
Court, be in court while not under examination, and if while he is
under examination a discussion arises as to whether a question is
to be allowed or not with regard to his evidence the Court may
direct the witness to withdraw during such discussion.
BSF RULES 128
88. Examination of Witnesses. - (1) A witness may be examined
by the person calling him and may be cross examined by the
opposite party to the proceedings and on the conclusion of any
such cross -examination may be re -examined by the person who
called him on matters arising out of th e cross -examination.
(2) (a) The person examining a witness shall put his questions
to the witness orally and unless an objection is made by
the witness, the Court, the Law Officer, the prosecutor or
by the accused, the witness shall reply forthwith.
(b) Where such an obje ction is made, the witness shall not
reply until the objection has been disposed of.
(3) The Court may allow the cross -
examination or reexamination of a witness to be
postponed.
(4) Before the examination of a witness, he shall be
administered an oath or affirmation in the following form
or in such other form to the same purport as the Court
ascertains to be in accordance with his religion or
otherwise binding on his conscience.
FORM OF OATH
I,... .......................... .sw ear by Almighty God that
whatever I shall state, shall be the truth, the whole truth and
nothing but the truth.
FORM OF AFFIRMATION
I,... ....................... .do solemnly, truly and sincerely
declare and affirm that whatever I shall state, shall be the truth,
the whole truth and nothing but the truth.
89. Questioning by the Court. -
(1) The presiding officer, the Law Officer and any member of the
Court may put questions to a witness.
BSF RULES 129
(2) Upon any such question being answered, the pro |
.
BSF RULES 129
(2) Upon any such question being answered, the prosecutor
and the accused may put to the witness such questions arising
from the answer which he has given as seem proper to the Court.
90. Reading over of evidence. -
(1) (a) The record which has been made of the evidence given
by a witness shall be read back to him before he leaves the
Court and when this is done he may ask for the record to
be corrected or explain the evidence which he has given.
(b) Where any s uch correction is made or explanation
given, the prosecutor and the accused may put such
questions to the witness respecting the correction or
explanation as seem proper to the Court.
(2) when a short hand writer is employed it shall not be
necessa ry to comply with sub -rule (1), if, in the opinion of
the court and the Law Officer (if any) it is unnecessary to
do so.
Provided that if any witness so demands, sub -rule (1) shall
be complied with.
91. Calling or recalling witnesses by the Court. -
(1) (a) The Court may at any time before it closes to
deliberate on its finding or if there is a Law Officer before
he begins to sum up, call a witness or recall a witness, if in
the opinion of the Court it is in the interest of justice to do
so.
(b) Where the Court calls a witness or recalls a witness
under this rule, the prosecutor and the accused may put
such questions to the witness as seem proper to the Court.
(2) The prosecutor and the accused may, at any time before
the Court closes to deliberate on its finding or if there is a
Law Officer before he begins to sum up, recall a witness
by leave of BSF RULES 130
the Court and the prosecutor and the accused may put such
questions to the witness as seem proper to t he Court.
92.
Submission of no case to answer and stopping of cases. -
(1)
(a) At the close of the case for the prosecution the
accused may submit to the Court in respect of any charge
that the prosecution has failed to establish a prima -facie
case for him to answer and that he should not be called
upon to make his defence to that charge.
(b) Where the accused makes such submission the
prosecutor may address the Court in answer thereto and
the accused may reply to the prosecutors address.
(2)
The Court shall not allow the submission unless it is satisfied that -
(a) the prosecution has not established a prima facie case
on the charge as laid; and
(b) it is not open to it on the evidence to make a special
finding under either section 93 or sub -rule (4) of Rule 99.
(3)
(a) Where the Court allows the submission, it, shall find
the accused not guilty of the charge to which it relates and
subject to confirmation the finding shall forthwith be
announced in open Court.
(b) Where the Court disallows the submission it shall
proce ed with the trial of the offence as charged.
(4)
The Court may, of its own motion, after the close of the
hearing of the case for the prosecution, and after hearing
the prosecutor find the accused not guilty of the charge
and subject to confirmation the finding shall forthwith be
announced in open Court.
BSF RULES 131
93. Case for the defence .- (1) After the close of the case for the
prosecution, the presiding officer or the Law Officer (if any) shall
explain to the accused that, -
(a) if he wishes, he may give evidence on oath as a
witness or make a statement without being sworn but that
he is not obliged to do either.
(b) if he gives evidence on oath, he shall be liable to
be cross examined by the prosecutor and to be questioned
by the Court.
(2) For the purpose of enabling the accused to explain any
circumstances appearing in the evide nce against him, the court
may, at any stage of the trial, without previously warning the
accused, put such questions to him as the Court considers
necessary, and shall for the purpose aforesaid, question him
generally on the case after the witnesses f or the prosecution have
been examined and before he is called on for his defence.
(3) The accused shall not render himself liable to punishment
by refusing to answer such questions, or by giving false answers
to them but the Court may draw such inferen ce from such refusal
or answers as it thinks just.
(4) The answers given by the accused may be taken into
consideration in such trial and put in evidence for or against him in
any other inquiry into, or trial for, any other offence which such
answers may tend to show he has committed.
(5) If the accused intends to call a witness to the facts of the
case other than himself, he may make an opening address outlining
the case for the defence before the evidence for the defence is
given.
94. Witnesses for defence. - (1) After rule 93 has been complied
with the witnesses for the defence (if any) shall be called to give
their evidence.
BSF RULES 132
(2) The provisions of rules 88, 89 and 90 shall apply to the
witnesses for the defence as they apply to the evidence of
witnesses for the prosecution.
95. Witnesses in reply .- After the witnesses for the defence
have given their evidence the prosecut or may by leave of the Court
call a witness or recall a witness to give evidence on any matter
raised by the accused in his defence which the prosecution could
not properly have mentioned to the Court before the accused
disclosed his defence or which t he prosecution could not
reasonably have foreseen.
96. Closing addresses .-(1) After all the evidence has been
given the prosecutor and the accused may each make a closing
address to the Court.
(2)
the accused shall be entitled to make his closing
address after the closing address by the prosecutor
unless the accused has called a witness to fact
other than himself, in which case the prosecutor
shall be entitled, subject to subrules (3) and (4) to
make his closing address after the accu sed has
made the closing address.
(3)
Where two or more accused are tried jointly, any
one of them who has called no such witness shall
be entitled to make his closing address after the
prosecutor has made the closing address.
(4)
(a) Where two or more accused are
represented by same defending officer or counsel
he may make one closing address only.
(b) Where any one of the accused for whom
he appears has called no witness to facts other
than himself such defending officer or counsel
shall be entitled to make his closing address after
the prosecutor has made the closing address.
97. Summing up by Law Officer .-After the closing
BSF RULES 133
addresses, if there is a Law Officer he shall sum up the evidence
and advise the Court on the law relating to the case in open court.
98. Deliberation on finding .- (1) The Court shall deliberate on
its finding in closed Court in the presence of Law Officer.
(2) The opinion of each member of the Court as to the finding shall
be given by word of mouth on each charge separately starting with
the junior most in rank.
99. Record and Announcement of Finding. - 1[(1) The
finding on every charge upon which the accused is arraigned shall
be recorded and, except as provided in these rules, shall be
recorded as finding of Guilty or of Not Guilty. After
recording the finding on each charge, the Court shall give brief
reasons in support thereof. The Law Officer or, if there is none,
the Presiding Officer shall record or cause to be recorded such
brief reasons in the proceedings. The above record shall be signed
and dated by the Presiding Officer and the Law Officer , if any.]
(2) Where the Court is of opinion as regards any charge that
the facts proved do not disclose the offence charge or any offence
of which he might under the Act legally be found guilty on the
charge as laid, the Court shall acquit the accu sed of that charge.
(3) If the Court has doubts as regards any charge whether the
facts proved show the accused to be guilty on the charge as laid, it
may, before recording a finding on that charge, refer to
the2[convening authority] for an opinio n, setting out the facts
which it finds to be proved and may, if necessary, adjourn for that
purpose.
(4) Where the Court is of opinion as regards any charge that
the facts which it finds to be proved in evidence differ materially
from the facts allege d in the statement of particulars in the charge
but are nevertheless sufficient to prove the offence stated in the
charge, and that the difference is not so material as to have
1. subs. By SO 2032(E) dated 9th July 2003
2. subs by SO 2628(E) dated 25th Nov 2011
BSF RULES 134
prejudiced the accused in his defence, it may, instead of a finding
of
Not Guilty record a special finding.
(5) The special finding may find the accused guilty on a charge
subject to the statement of exceptions or variations specified
therein.
(6) Where there are alternative charges, and the facts proved
appear to the Court not to constitute the offence mentioned i n any
of those alternative charges, the Court shall record a finding of
Not Guilty on that charge.
(7) The Court shall not find the accused guilty on more than
one of two or more charges laid in the alternative, even if
conviction upon one charge nece ssarily connotes guilty upon the
alternative charge or charges.
(8) If the Court thinks that the facts proved constitute one of
the offences stated in two or more of the alternative charges, but
doubts which of those offences the facts do at law constitute, it
may, before recording a finding on those charges, refer to the 1
[convening authority ] for an opinion, setting out the facts which it
finds to be proved and stating that it doubts whether those facts
constitute in law the offence stated in such one or other of the
charges and may, if necessary, adjourn for that purpose.
(9) The finding on each charge shall be announced forthwith
in open Court as subject to confirmation.
100. Procedure on Acquittal .- If the finding on a ll the
charges is Not Guilty the presiding officer shall affix his
signature and date on the finding and such signature shall
authenticate the whole of the proceedings, and the proceedings
upon being signed by the
Law Officer (if any) shall be a t once transmitted for confirmation.
101. Procedure on Conviction. - (1) If the finding on any
charge is guilty, then, for the guidance of the Court in
determining its sentence, and of the confirming authority in
1. subs by SO 2628(E) dated 25th Nov 2011
BSF RULES 135
considering the sentence, the Court, before deliberating on the
sentence, shall, whenever possible, take evidence of and record the
general character, age, service, rank, any recognis ed acts of
gallantry or distinguished conduct of the accused, any previous
convictions of the accused either by Security Force Court or a
criminal court, any previous punishments awarded to him by an
officer exercising authority under section 53 or 55 as the case may
be; the length of time he has been in arrest or in confinement on
any previous sentence, and any decoration, or reward, of which he
may be in possession or to which he is entitled.
(2) Evidence on the above matters may be given by a witn ess
verifying a statement which contains a summary of entries in the
service books respecting the accused and identifying the accused
as the person referred to in that summary.
(3) The accused may cross -examine any such witness and may
call witnesses to rebut such evidence; and if the accused so
requests, the service books or a duly certified copy of the material
entries therein, shall be produced and if the accused alleges that
the summary is in any respect not in accordance with the service
books o r such certified copy, as the case may be, the Court shall
compare the summary with those books or copy and if it finds that
it is not in accordance therewith, shall cause summary to be
corrected or the objection of the accused to be recorded.
(4) When all the evidence on the above matters has been
given, the accused may address the Court thereon and in mitigation
of punishment.
102. Sentence. - The Court shall award a single sentence in
respect of all the offences of which the accused is found gui lty, and
such sentence shall be deemed to be awarded in respect of which it
can be legally given and not to be awarded in respect of which it
cannot be legally given.
103. Recommendation for mercy .- (1) Where the Court makes
a recommendation to mercy it s hall give its reasons for its
recommendation.
BSF RULES 136
(2) The number of opinions by which the recommendation to
mercy mentioned in this rule, or any question relative thereto, is
adopted or rejected, may be entered in the proceedings.
104. Announcement of the Sentence and Signing and
Transmission of Proceedings. - (1) The sentence together with
any recommendation to mercy and the reasons for any such
recommendation shall be announced forthwith in open Court. The
sentence will be announced as subject to confirmation.
(2) Upon the Court awarding the sentence, the presiding officer
shall affix his signature and date the sentence and such signatures
shall authenticate the whole of the proceedings and the
proceedings upon being signed by the Law Officer (if any), shall
at once be transmitt ed for confirmation.
105. Revision. -
(1) (a) Where the finding is sent back for revision under section
113, the Court shall re -assemble in open Court, the
revision order shall be read and if the Court, is directed to
take fresh evidence s uch evidence shall be taken in open
Court.
(b) Where such fresh evidence is recorded otherwise
than at the instance of the accused, the accused shall be
given a further opportunity to lead evidence in respect of
matters brought out in such fresh |
instance of the accused, the accused shall be
given a further opportunity to lead evidence in respect of
matters brought out in such fresh eviden ce.
(c) The prosecutor and the accused shall be given a
further opportunity to address the Court in respect of the
fresh evidence led.
(d) The Law Officer may also give a further summing
up.
106. Confirmation and Promulgation .- (1) When a
confirming authority receives the record of the proceedings of a
Court, it shall record its decision thereon and on any sentence and
any order which the Court may have made under Section 105 on
the record of the proceedings in the appropriate form set out i n
Appendix VIII and such record of his decision shall form part of
the record of the proceedings.
rule 79 the confirming authority may c onfirm its finding
notwithstanding that the Court has accepted the plea without the
concurrence of the convening officer, if, in the opinion of the
confirming authority it is in the interests of justice to do so.
(3) (a) When a Court has rejected a plea to the jurisdiction of the
Court or a plea in bar of trial or has over -ruled an objection to a
charge it shall not be necessary for the confirming authority to
BSF RULES 138
approve specifically the decision of the Court, but its approval shall
be implied from its confirming the finding on the charge to which
the plea or objection relates.
(b) Where it disapproves the decision of the Court to reject the
plea or to ov er-rule the objection it shall withhold confirmation of
the finding on the charge to which the plea or objection relates.
(2)
BSF RULES
(3)
(4)
(5) Where the revision of finding does not involve taking of
fresh evidence, the accused shall be given an opportunity
to address the Court in respect of matter raised in the
revision order.
(a) The Court shall then deliberate on its finding in
closed Court and if the Court does not adhere to its former
finding, it shall revoke the finding and sentence and record
a new finding and if such new finding involves a sentence
pass sentence afresh.
(b) Where the original finding was one of Not
Guilty, the Court shall, before passing sentence comply
with Rules 101 and 102.
(a) Where the sentence alone is sent back for
revision, the revision order shall be read in open Court and
the accused given an opportunity to address the Court in
regard to matters referred to in the revision order.
(b) The Court shall then reconsider its sentence in
closed Court and if it does not adhere to the sentence,
revoke the sentence and pass sentence afresh. 137
Where the sentence alone is sent for revision the Court shall not revise
the finding.
(2) When a Court has accepted a plea of guilty made under
(4)
A Confirming authority may state its reasons for
withholding confirmation in any case, but if it withholds
confirmation where a Court has rejected a plea to the
jurisdiction or plea in bar of trial or has over -ruled an
objection to the charges because it disapproves this
decision of the Court, it shall when recording its decision
under sub -rule (1) state that it has withheld confirmation
for this reason.
(5)
Where the sentence of a Court is improperly expressed the
confirming authority may in confirming the sentence vary
the form thereof so that it shall be properly expressed.
(6)
Whenever it appear that there is sufficient evidence or a
plea of guilty under either sub -rule (1) or sub --rule (2) of
rule 77 to justify the finding of the Court such finding and
any lawful sentence consequent thereon may be
confirmed, and if confirmed shall be valid,
notwithstanding any deviation from these rules , if the
accused has not been prejudiced by such deviation.
(7)
While confirming the finding the confirming authority
may either unconditionally or subject to conditions which
the accused accepts, reduce or remit a portion of the
sentence or commute the punishment to one given lower in
the scale of punishments in section 48.
(8)
(a) When a confirming authority has confirmed a finding
and a sentence of a Court or has withheld confirmation
thereof, it shall send the record of the proceeding to the
Commandant of the accused for promulgation to the
accused of the finding and sente nce
BSF RULES 139
or the fact that confirmation has been withheld as the case
may be.
(b) The fact of promulgation shall be recorded on the
record of the proceedings in the form set out in Appendix
IX.
(c) Where confirmation has been withheld because the
confirming authority disapproves the Courts decision to
reject a plea to the jurisdiction or a plea in bar of trial or to
over-rule an objection to the charge the accused shall be so
informed.
BSF RULES 140
CHAPTER - X
PROCEDURE OF SECURITY FORCE COURTS AND
INCIDENTAL MATTERS
107. Seating of members .- The members of a Court shall take
their seats according to their rank.
108. Responsibility of Presiding Officer. - (1) The presiding
officer is responsible for the trial being conducted in proper order,
and in accordance with the Act, rules made there -under and in a
manner befitting a court of justice.
(2) It is the duty of the presiding officer to see tha t the accused has
a fair trial, and that he does not suffer any disadvantage in
consequence of his position as a person under trial, or of his
ignorance, or of his incapacity to examine or cross -examine
witnesses, or otherwise.
109. Power of Court o ver address of prosecutor and accused. -
(1) It is the duty of the prosecutor to assist the Court in the
administration of justice, to behave impartially, to bring the whole
of the transaction before the Court and not to take any unfair
advantage of, or suppress any evidence in favour of the accused.
(2) The prosecutor may not refer to any matter, not relevant to
the charge or charges, then before the Court, and it is the duty of
the Court to stop him from so doing and also to restrain any undue
viole nce of language or want of fairness or moderation on the part
of the prosecutor.
(3) The Court shall give reasonable facilities to the accused, in
making his defence; the accused must abstain from any remarks
contemptuous or disrespectful towards the Cou rt, and from coarse
and insulting language towards others, but he may for the purpose
of his defence impeach the evidence and charge other persons with
blame and even criminality, subject, if he does so, to any BSF
RULES 141
liability which he may thereby incur. The Court may caution the
accused as to the irrelevance of his defence, but shall not, unless
in special cases stop his defence solely on ground of such
irrelevance.
110. Sitting in closed Court .-(1) A Cour t shall, where it is so
directed by these rules, and may in any other case on any
deliberation amongst the members, sit in closed Court.
(2) No person shall be present in closed Court except the
members of the Court, the Law Officer (if any) and any
officers under instruction.
(3) For the purpose of giving effect to the foregoing
provisions of this rule, a Court may either retire or cause
the place where it sits to be cleared of all other persons not
entitled to be present.
(4) Except a s hereinbefore mentioned all proceedings,
including the view of any place, shall be in open Court and
in the presence of the accused subject to sub - rule(5).
(5) The Court shall have the power to exclude from the Court
any witness who has yet to g ive evidence or any other
person, other than the accused, who interferes with its
proceedings.
111. Continuity of trial and adjournment of Court. - (1) When
a Court is once assembled and the accused has been arraigned, the
Court shall continue the trial from day to day in accordance with
these rules unless it appears to the Court that an adjournment is
necessary for the ends of justice or that such continuance is
impracticable.
(2) (a) A Court may from time to time adjourn its proceedings
and meet at such place as may be convenient, and
(b) Wherever necessary, visit the scene of occurrence.
BSF RULES 142
(3) The senior officer on the spot may also for exigencies of
service adjourn or prolong the adjournment of the Court.
(4) A Court in the absence of a Law Officer (if one has been
appointed for that Court) shall not proceed, and shall adjourn.
(5) If the time to which an adjournment is made is not
specified, the adjournment shall be until further orders from the
proper Force authority; and, if the place to which an adjournment
is made is not specified, the adjournment shall be to the same place
or to such other place as may be specified in further orders from
the proper Force authority.
112. Suspension of Trial .- Where, in consequence of anything
arising while the Court is sitting, the Court is unable by reason of
dissolution as specified in s ection 71 or otherwise, to continue the
trial, the presiding officer or, in his absence the senior member
present, shall immediately report the facts to the convening
authority.
113. Proceedings on death or illness of accused .- In case of
the death of the accused or of such illness of the accused as renders
it impossible to continue the trial, the Court shall ascertain the fact
of the death or illness by evidence and record the same and adjourn
and transmit the proceedings to the convening author ity.
114. Death, retirement or absence of Presiding Officer. -
In the case of the death, retirement on challenge or unavoidable
absence of the presiding officer, the next senior officer shall take
the place of the presiding officer and the trial shall proceed if the
Court is still composed of not less than the minimum number of
officers of which it is required by law to consist.
115. Presence throughout of all members of Court. - (1) A
member of a Court who has been absent while any part of the
evidence on the trial of an accused person is taken, shall take no
further part in the trial by that Court of that person,
BSF RULES 143
but the Court will not be affected unless it is reduced below the
legal minimum.
(2) An officer shall not be added to a Court after the accused has
been arraigned.
116. Taking of opinions of members of Court .- (1) Every
member of a Court must give his opinion by word of mouth on
every question which the Court has to decide, and must give his
opinion as to the sentence notwithstanding that he has given his
opinion in favour of acquittal.
(2) The opinions of the members of the Court shall be taken in
succession, beginning with the member lowest in rank.
117. Procedure on Incidental Questions .- If any objection is
raised on any matter of Law, evidence, or procedure, by the
prosecutor or by or on behalf of the accused during the trial, the
prosecutor or the accused or counsel or the defending officer (as
the case may be) shall have a right to answer the same and the
person raising the objection shall have a right to reply.
118. Evidence when to be translated .- When any evidence is
given in a language which any of the officers composing the Court,
the accused or t he Law Officer does not understand, it shall be
translated into a language which he understands.
119. Record in Proceedings of Transactions of a Security
Force Court. - (1) At a Court the Law Officer or, if there is none,
the presiding officer shall rec ord or cause to be recorded all
transactions of the Court, and shall be responsible for the accuracy
of the record (in these rules referred to as the proceedings): and if
the Law officer is called as a witness by the accused, the presiding
officer shal l be responsible for the accuracy of the record in the
proceedings, of the evidence of the Law Officer.
(2) The evidence shall be taken down in a narrative form in
BSF RULES 144
as nearly as possible the words used, but in an y case where the
prosecutor, the accused, the Law Officer, or the Court considers it
material, the question and answer shall be taken down verbatim.
(3) Where an objection has been taken to any question or to
the admission of any evidence or to the procedure of the Court,
such objection shall if the prosecutor or accused so requests or the
Court thinks fit, be entered upon the proceedings together with
the grounds of the objection and the decision of the Court thereon.
(4) Where any address b y, or on behalf of the prosecutor or
the accused, is not in writing, it shall not be necessary to record
the same in the proceedings further or otherwise than the Court
thinks proper, except that;
(a) the Court shall in every case make such record of
the defence, made by the accused as will enable
the confirming officer to judge of the reply made
by, or on behalf of the accused to each charge
against him, and
(b) the Court shall also record any particular matters
in the address by or on behalf of , the prosecutor
or the accused which the prosecutor or the
accused, as the case may be, may require.
(5) The Court shall not enter in the proceedings any comment
or anything not before the Court, or any report of any fact not
forming part of the trial, but if any such comment or report seems
to the Court necessary, the Court may forward it to the proper
authority in a separate document signed by the presiding officer.
120. Custody and Inspection of Proceedings. - The proceedings
shall be deemed to be in the custody of the Law Officer (if any)
or, if there is none, of the presiding officer but may, with proper
precaution for their safety, be inspected by the members of the
Court, the prosecutor and accused, at all reasonable times before
the Cou rt is closed to consider the finding.
1 [121. |
and accused, at all reasonable times before
the Cou rt is closed to consider the finding.
1 [121. Review of General and Petty Security Force Court proceedings -
The proceedings of a General and Petty Security
1. Subs .by S.O. 155(E), dated 1st Mar 1983 2.
Ins by SO, 1757(E) dated 19 April2017.
BSF RULES 145
Force Court shall be sent by the person having the custody thereof
to the Chief Law Officer 2[or Additional Chief Law Officer ] for
review, who shall then forward the same to the confirming
authority.]
122. Defending Officer, Friend of Accused and Counsel: - (1)
At any General or Petty Security Force Court an accused person
may be represented by a counsel or by any officer subject to the
Act who shall be called the defending officer or assisted by any
person whose services he may be able to procure and who shall be
called the friend of the accused.
The defending officer shall have the same r ights and duties as
appertain to a counsel under these rules and shall be under the like
obligations.
(3) The friend of the accused may advise the accused on all points and
suggest the questions to be put to the witnesses, but he shall not examine or
cross -examine the witnesses, or address the Court.
123. Requirements for Appearance of Counsel .-(1) An accused person
intending to be represented by a counsel shall give to his Commandant or
to the convening officer the earliest practicable noti ce of such intention, and,
if no sufficient notice has been given, the Court may, if it thinks fit, on the
application of the prosecutor, adjourn to enable him to obtain a counsel on
behalf of the prosecutor at the trial.
(2) Where the convening officer so directs, counsel may appear along with
the prosecutor, but in that case, unless the notice referred to in sub -rule(1)
has been given by the accused, notice of the direction for counsel to appear
shall be given to the accused at such time (not in any cas e less than seven
days) before the trial as would, in the opinion of the Court, have enabled the
accused to obtain counsel to assist him at the trial.
(3) The counsel, who appears before a Court on behalf of the prosecutor or
accused, shall have the same rights as the
BSF RULES 146
prosecutor or accused for whom he
appears to call, and orally examine,
cross -examine, and re -examine
witnesses, to put in any plea, and to
inspect the proceedings and shall have
the right otherwise to act in the course of
the trial in place of the person on whose
behalf he appears, and he shall comply
with these rules as if he were that person
and in such a case that person shall have
no right himself to do any of the
aforesaid matters except as regards th e
statement allowed by sub -rule (2) of rule
93 and sub -rule 4 of rule 101 or except
so far as the Court permits him so to do.
(4) When counsel appear on behalf of the
prosecutor; the prosecutor if called as
witness, may be examined and re -
examined as any other witness.
(2)
124. Disqualification of law Officer. - An
Officer who is disqualified for sitting
on a Court, shall be disqualified for
acting as a Law Officer at that Court.
125. Substitution on Death, Illness or Absence of Law
Officer.- If the Law Officer dies, or from
illness or from any cause whatever is
unable to attend, the Court shall adjourn
and the presiding officer shall report the
circumstances to the convening officer;
and a fit person may be appointed by that
officer who shall be sworn or affirmed
and act as Law officer for the residue of
the trial, or until the Law Officer returns.
126. Power and duties of Law Officer. -
(1) Where a Law Officer has been named
to act on the Court, he shall , -
(a) give his opinio n on any question of
law relating to the charge or trial
whenever so required by the Court,
the prosecutor or the accused;
(b) inform the Court of any irregularity
or other infirmity in the
proceedings;
(c) inform the convening officer and
the Court of an y
infirmity or defect in the charge or in the
constitution of the Court;
BSF RULES 147
(d) sum up the evidence and give his
opinion on any question of law, before the
Court proceeds to deliberate upon its
findings.
It shall be the duty of the Law
Officer to ensure that the accused does
not suffer any disadvantage in
consequence of his position as such, or
because of ignorance or incapacity to
examine or cross -examine witnesses and
for this purpose the Law Officer may,
with the permission of the Court, call
witnesses and put questions to them
which appear to him to be necessary or
desirable.
(3) In the discharge of his duties, the
Law Officer shall maintain an attitude of
strict impartiality.
(4) Where any opini on has been given
by the Law Officer to the Court on any
matter before it, it may be entered in the
proceedings, if the Law Officer or the Court
desires it to be entered.
(5) The Law Officer shall represent the
Chief Law officer at a Security Force C ourt.
127. Finding of Insanity .- Where the
Court finds either that the accused, by
reason of unsoundness of mind, is
incapable of making his defence, or that
he committed the act alleged but was by
reason of unsoundness of mind incapable
of knowing the nature of the act or that it
was wrong or contrary to law, the
presiding officer or in the case of
Summary Security Force Court, the
officer holding the trial, shall affix his
signature and the date on the finding
which shall also be signed by the Law
Officer (if any) and thereupon the
proceedings shall, at once, be transmitted
to the confirming authority or in the case
of Summary Security Force Court to the
Deputy Inspector General empowered to
Countersign them.
128. Preservation of Proceedings. -
The proceedings of every Court shall,
after promulgation, be forwarded, to the
office of the Chief Law Officer and be
preserved there for not less than seven
(2)
years, or until the sentence awarded by
the Court has expired, whichever is later.
BSF RULES 148
129. Right of person tried to Copies of Proceedings. -
Every person tried by a Security Force
Court shall be entitled to obtain on
demand, at any time after the
confirmation of the finding and sentence,
when such confirmation is required and
before the proceedings are destroyed,
from the Chief Law officer a copy
thereof, including the proceedings upon
revision, if any.
130. Copy of proceedings not to be given in certain
cases .-
Notwithstanding anything contained in
rule 129 if the Central Government is
satisfied for reasons to be recorded that it
is against the interests of the Security of
the State or friendly relations with
foreign States to supply a copy of the
proceedings or any part thereof under the
said rul e, he shall not be furnished with
such a
copy;
Provided that if the Central
Government is satisfied that the person
demanding the copy is desirous of
submitting a petition in accordance with
the Act or instituting any action in a court
of law in relation to the finding or
sentence, it shall permit inspection of the
proceedings by such a person or his legal
advisor, if any, on the following
conditions, namely: -
(a) the inspection shall be
made at such times and such
places as the Central Gover nment
or any authority authorised by it
may direct; and
(b) the person allowed to
inspect the proceedings shall,
before such inspection, furnish , -
(i) an undertaking, in
writing, that he shall not
make copies of the
proceedings or any part
thereof an d that the
information or
documents contained in
such proceedings shall
not be used by him, for
any purpose whatsoever,
other than for the
purpose of submitting a
petition in accordance
with the Act or instituting
an action in a court of
law in relati on to the said
finding or sentence; and
BSF RULES 149
(ii) a certificate that he is
aware that he may render
himself liable to
prosecution under
section 3 and 5 of the
Indian Official Secrets
Act, 1923 (19 of 1923) if
he commits any act
specified in the said
sections in relation to the
documents or
information contained in
the said proceedings.
131. Loss of proceedings .- (1) If, before
confirmation, the original proceedings of
a Court which require confirmation or
any part thereof, are lost, a copy thereof,
if any, certified by the presiding officer
or the Law Officer at the Court may be
accepted in lieu of the original.
(2)
If there is no such copy, and
sufficient evidence of the charge, finding,
sentence, and transactio ns of the Court
can be procured, that evidence may, with
the assent of the accused, be accepted in
lieu of the original proceedings, or part
which have been lost.
(3) In any case mentioned above in
this rule the finding and sentence may be
confirmed, a nd shall be valid as if the
original proceedings or part thereof had
not been lost.
(4) If the accused refuses the assent
referred to in sub -rule (2), he may be tri ed
again, and the finding and sentence of the
previous Court of which the proceedings
have been lost shall be void.
(5) If, after confirmation or in any
case where confirmation is not required,
the original proceedings or any part
thereof are lost, and there is sufficient
evidence of the charge, finding, sentence,
and transactions of the Court and of the
confirmation (if required) of the finding
and sentence, that evidence shall be a
valid and sufficient record of the trial for
all purposes.
132. Offences by witnesses and others. -
When a Court is of opinion that there is
ground for inquiring into any offence
specified in sections 37 and 38 and
committed before it or brought
BSF RULES 150
to its notice in the course of its p roceedings,
which would if done by a
person subject to the Act, have constituted
such an offence, such Court may proceed as
follows, that is to say: -
(a) if the person who
appears to have committed the
offence is subject to the Act, the
Court may bring his conduct to
the notice of his Commandant;
(b) if the person who
appears to have done the act is
amenable to military, naval or air
force law the Court m ay bring
his conduct to the notice of the
proper military, naval or air
force authority, as the case may
be;
(c) in other cases the officer
who summoned the witness to
appear or the presiding officer or
Officer - holding the Court, as the
case may be, may forward a
written complaint to the nearest
Magistrate of the first class
having jurisdiction, and in the
case of acts which would, if
done by a person subject to this
Act have constituted an offence
under clause (e)of section 37 or
section 38, the Cou rt, after
making any preliminary inquiry
that may be necessary may send
the case to the nearest
Magistrate of the first class
having jurisdiction for inquiry
or trial in accordance with
1[sections 340 and 343 of the
Code of Criminal Procedure,
1973 (2 of
1974)]
(2)
1. Subs by S.O. 2628(E), dated 25th Nov 2011
BSF RULES 151
CHAPTER - XI
SUMMARY SECURITY FORCE
COURTS
133. Proceedings. - The officer
holding the trial, hereinafter in this
Chapter called the Court, shall record, or
cause to be recorded the transactions of
every Summary Security Force Court.
134. Evidence when to be
translated. - (1) When any evidence is
given in a lan guage which the Court or the
accused does not understand, that
evidence shall be translated to the Court
or accused as the case may be in a
language which it or he does understand.
(2) The Court shall for this purpose
either appoint an interpreter , or
shall itself take the oath or
affirmation prescribed for the
interpreter at a Summary Security
Force Court.
(3) When documents are produced for the purpose of formal
proof, it shall be in the discretion of the Court to cause as
much to be interpreted as appears necessary.
135. Assembly .- When the Court, the interpreter (if any) and
the officers and subordinate off icers attending the trial are
assembled, the accused shall be brought before the Court and the
oath or affirmation prescribed in rule 136 shall be taken by the
persons therein mentioned.
136. Swearing or affirming of court and interpreter. - The
Court shall take oath or affirmation in any one of the following
forms or in such other form to the same purport which would,
according to the religion or otherwise be binding on the
conscience of the officer constituting the Court.
FORM OF OATH
I,... ...................................................... ...swear by
Almighty God that I will duly administer justice, according to the
Border |
...................................................... ...swear by
Almighty God that I will duly administer justice, according to the
Border Security Force Act, 1968 without partiality, favour or
affection.
BSF RULES 152
FORM OF AFFIRMATION
I,... ............................................. ...do solemnly, sincerely
and
truly declare and affirm that I will duly administer justice,
according to the Border Security Force Act, 1968 without
partiality, favour or affection.
(2) The Court, or any other person empowered by it in this
behalf shall administer to the interpr eter (if any) an oath or
affirmation in any of the following forms, or in such other form
to the same purport as the Court ascertains to be according to the
religion or otherwise binding on the conscience of the person
who is to act as interpreter.
FORM OF OATH
I,... ............................................... ..swear by Almighty
God that
I will faithfully interpret and translate, as I shall be required to do touching
the matter before this Court.
FORM OF AFFIRMATION
I,... ........................................... .do solemnly, sincerely and truly declare
and affirm that I will faithfully interpret and translate, as I shall be required
to do touching the matter before this Court.
(3) The witnesses shall, after the administration of the oath and the
affirmation, withdraw from the Court.
137. Swearing of Court to try several accused persons. - (1) A Summary
Security Force Court may be sworn or affirmed at the same time to try any
number of accused persons then present before it whether those persons are
to be tried collectively or separately.
(2) In the case of several accused persons to be tried separately, the Court,
when sworn or affirmed shall proceed with one case p ostponing the other
cases and taking them afterwards in succession.
BSF RULES 153
(3) Where several accused persons are tried separately upon
charges arising out of the same transaction, the Court may, if it
considers it to be desirable in the interests of justice, postpone
consideration of any sentence to be awarded to any one or more
such accused persons until the trials of all such accused persons
have been completed.
138. Arraignment of accused. - (1) After the Court and
interpreter (if any) are sworn or affirmed as above mentioned,
the accused shall be arraigned on the charges against him.
(2) The Charges on which the accused is arraigned shall be read
and, if necessary, translated to him, and explained and he shall
be required to plead separately to each charge.
139. Objection by accused to charge. - The accused, when
required to plead to any charge, may object to the charge on the
ground that it does not disclose an offence under the Act, or is
not in accordance with these rules.
140. Amendment of charge .-(1) At any time during the trial
if it appears to the Court that there is mistake in the name or
description of the accused in the charge -sheet, it shall amend the
charge -sheet s o as to correct that mistake.
(2) If on the trial of a charge it appears to the Court at any time
before it has begun to examine the witnesses, that in the interests
of justice any addition to, omission from, or alteration in, the
change is require d, it may amend such charge and may, after due
notice to the accused, and with the sanction of the officer
empowered to convene a Petty Security Force Court for the trial
of the accused if the amended charge requires such sanction,
proceed with the tri al on such amended charge.
141. Special pleas .- If a special plea to the general jurisdiction
of the Court, or a plea in bar of trial, is offered by the accused,
the procedure laid down in Chapter IX for disposing of such
pleas shall, so far as may be applicable be followed.
BSF RULES 154
142. General plea of Guilty or Not Guilty. - (1) The accused
persons plea of Guilty or Not Guilty or if he refuses to plead
or does not plead intelligibly either one or the other, a plea of Not
Guilty shall be recorded on each charge.
(2) If an accused person pleads Guilty, that plea shall be recorded
as the finding of the Court; but before it is recorded, the Court shall
ascertain that the accused understands the nature of the charge to which he
has pleaded guilty and shall inform him of the general effect of that plea,
and in particular of the meaning of the charge to which he has pleaded
guilty, and of the diff erence in procedure which will be made by the plea
of guilty and shall advise him to withdraw that plea if it appears from the
record or abstract of evidence (if any) or otherwise that the accused ought
to plead not guilty.
1[Provided that afte r recording plea of guilty, signature of the accused
and friend of the accused shall be obtained.]
(3) Where an accused person pleads guilty to the first two or more
charges laid in the alternative, the Court may after sub -rule (2) has been
complied wit h and before the accused is arraigned on the alternative charge
or charges, withdraw such alternative charge or charges as follow the
charge to which the accused has pleaded guilty without requiring the
accused to plead thereto, and a record to that ef fect shall be made in the
proceedings of the Court.
143. Procedure after plea of Guilty. - (1) Upon the record of the plea
of Guilty, if there are other charges in the same chargesheet to which
the plea is Not Guilty, the trial shall fir st proceed with respect to those
other charges, and, after the finding on those charges, shall proceed with
the charges on which a plea of Guilty has been entered; but if there are
alternative charges, the Court may either proceed with respect to a ll the
charges as if the accused had not pleaded Guilty to any charge or may,
instead of trying him, record a finding of Guilty upon any one of the
1. Ins by S.O. 2628 (E) dated 25 Nov 2011
BSF RULES
alternative charges to which he had pleaded Guilty and finding
of Not Guilty upon all the other alternative charges which
precede such charge.
(2) (a) After the record of the plea of Guilty on a charge (if trial
does not proceed on any other charges) the Court shall read the
record or abstract of evidence and annex it to the proceedings, or if
there is no such record, or abstract shall take and record sufficient
evidence to enable it to determine the sentence, and the revi ewing
officer to know all the circumstances connected with the offence.
(b) The evidence shall be taken in like manner as is directed by these
rules in the case of a plea of Not Guilty. 155
(3)
The accused may, after such evidence has been taken or
as, the case may be, the record or abstract of evidence has
been read, address the Court with reference to the charge
and in mitigation of punishment and may call witnesses as
to his character.
(4)
(a) If from the statement of the accused, or from the
record of evidence, or otherwise, it appears to the Court
that the accused did not understand the effect of his plea
of
Guilty, the Court shall alter the record and enter a plea of Not
Guilty and proceed with the trial accordingly.
(b) Any alternative charges withdrawn under sub -
rule(1) shall be reinstated in the charge sheet and the trial
shall take place as if the y had never been withdrawn.
(5)
If a plea of Guilty is recorded on some charges and the
trial proceeds with respect to other charges in the same
charge - sheet, the proceedings under sub -rules (2) and (3)
shall take place after the findings on the other charges in
the same charge -sheet are recorded.
BSF RULES 156
(6) When the accused states anything in mitigation of punishment which in the opinion of the Court
requires to be proved, and would, if proved, affect the amount of punishment, the Court may permit
the accused to call witness to prove the same.
144. Withd rawal of plea of Not Guilty .- The accused may,
if he thinks fit at any time during the trial, withdraw his plea of
Not Guilty and plead Guilty and in such case the Court shall
at once, subject to compliance with sub -rule (2) of rule 142
record a pl ea and finding of Guilty and shall, so far as if
necessary, proceed in manner directed by Rule 143.
145. Procedure after plea of Not Guilty .- (1) After the
plea of Not Guilty to any charge, is recorded the evidence for
the prosecution will be taken.
(2) At the close of the evidence for the prosecution the
accused shall be asked if he has anything to say in his defence, or
may defer such address until he has called his witnesses.
(3) The accused may then call his witnesses, including also
witnes ses to character.
146. Witnesses in reply to defence .- The Court may, if it
thinks it necessary in the interests of justice, call witnesses in
reply to the defence.
147. Evidence of witnesses .- The provisions of Rules 88, 89
and 90 shall so far as may be, apply to the evidence of witnesses
at a Summary Security Force Court as they apply to the evidence
of witnesses at a General or Petty Security Force Court.
148. Verdict .- The Court shall after the evidence for
prosecution and defence has bee n heard, give its opinion as to
whether the accused is guilty or not guilty of the charge or
charges.
149. Finding. - (1) The finding on every charge upon which
the accused is arraigned shall be recorded and except as
mentioned
BSF RULES 157
in these rules shall be recorded simply as a finding of Guilty or
of Not Guilty.
(2) When the Court is of opinion as regards any charge that
the facts proved do not disclose the offence charged or any
offence of which he might under the Act l egally be found guilty
on the charge as laid, the Court shall find the accused Not
Guilty of that charge.
(3) When the Court is of opinion as regards any charge that
the facts found to be proved in evidence differ materially from
the facts al leged in the statement of particulars in the charge, but
are nevertheless sufficient to prove the offence stated in the
charge, and that the difference is not so material as to have
prejudiced the accused in his defence, it may, instead of a finding
of Not Guilty record a special finding.
(4) The special finding may find the accused guilty on a
charge subject to the statement of exceptions or variations
specified therein.
(5) The Court shall not find the accused guilty on more than
one of two or mo re charges laid in the alternative, even if
conviction upon one charge necessarily connotes guilt upon the
alternative charge or charges.
150. Procedure on Acquittal .- Where the finding on each of
the charges in a charge -sheet is Not Guilty, the cou rt shall affix
its signature and date the proceedings, the findings will be
announced in open Court, and the accused will be released if
under arrest, in respect of these charges.
151. Procedure on finding of Guilty .- (1) Where the
finding on any ch arge is Guilty the Court may record of its own
knowledge, or take evidence of any record, the general character,
age, service, rank, and any recognised acts of gallantry, or
distinguished conduct of the accused, and previous convictions
of the accuse d either by a Security Force Court, or a Criminal
BSF RULES 158
Court, any previous punishment awarded to him by an officer
exercising authority under section 53, the length of time he has
been in arrest or in confinement on any previous sentence, and
any decoration, or reward of which he may be in possession or to
which he may be entitled.
(2) Where the Court does not record the matters mentioned in this
rule of its own knowledge, evidence on th ese matters may be taken in
the manner directed in rule 101 for similar evidence.
152. Sentence. - The Court shall award one sentence in respect
of all the offences of which the accused is found guilty.
153. Signing of Proceedings .- The Court shall affix its
signature and the date to the sentence and such signature shall
authenticate the whole of the proceedings.
154. Charges in different charge -sheets. - (1) When the
charges at a trial by Summary Security Force Court are contained
in differen t charge -sheets, the accused shall be tried on each
charge -sheet separately up to and including the stage of finding.
(2) The Court shall, thereafter, comply with rules 150 or 151 as
the case may be.
155. Clearing the Court. - (1) The officer holding the trial may
clear the Court to consider the evidence or to consult with the
officers, and subordinate officer, attending the trial.
(2) Subject to the provisions of sub -rule (1), all the proceedings,
including the view of any place, shall be in open Court, and in
the presence of the accused.
156. Adjournment. - (1) A Court may , -
(a) from time to time adjourn its proceedings and meet at
such place as may be convenient; and
BSF RULES 159
(b) wherever necessary visit the scene of occurrence.
157. Friend of the accused .- During a trial at a Summary
Security Force Court an accused may take the assistance of any
person, including a legal practitioner as he may consider
necessary;
Provided that such person shall not examine or crossexamine
witnesses or address the Court.
158. Memorandum to be attached to proceedings. - Where
a Summary Security Force Court tries an offence which shall not
ordinarily be tried without refe rence to an authority mentioned in
sub-section (2) of Section 74, an explanatory memorandum shall
be attached to the proceedings.
159. Promulgation. - The sentence of a Summary Security
Force Court shall be promulgated, in the manner usual in the
service, at the earliest opportunity after it has been pronounced
and shall subject to the provisions of the Act be carried out |
in the
service, at the earliest opportunity after it has been pronounced
and shall subject to the provisions of the Act be carried out
without delay after promulgation.
160. Review of Proceedings. - The proceedings of a
Summary Security Force Court shall, im mediately on
promulgation be forwarded through the Chief Law Officer, or a
Law Officer to the Deputy Inspector General under whom the
accused may have been serving.
161. Action by the Deputy Inspector -General - (1) Where the
Deputy Inspector -General to whom the proceedings of a
Summary Security Force Court have been forwarded under rule
160, is satisfied that injustice has been done to the accused by
reason of any grave irregularity in the proceedings or otherw ise,
he may , -
(a) set aside the proceedings of the Court; or
BSF RULES 160
(b) reduce the sentence or commute the punishment
awarded to one lower in the scale of punishment given in
1[Section 48 and return it to the unit of the accused for
promulgation].
(2) Where no action under sub -rule (1) has been taken he
shall countersign the proceedings 2(***).
(3) The proceedings shall, after its promulgation 3[under
sub- rule (1) or counter signature under sub -rule (2)] be
forwarded to the Chief Law Officer for custody.
1. Subs by S.O. 436 (E), dated 29 -5-1990 2. Omitted by S.O. 436
(E), dated 29 -5-1990.
3. Ins. by ibid.
BSF RULES 161
CHAPTER - XII
EXECUTION OF SENTENCE
162. Direction about Sentence of Imprisonment. - (1) A
confirming authority or in the case of a Summary Security Force
Court, the Court, shall direct that the sentence of imprisonment
shall be undergone by confinement either in a civil prison or in
Force Custody.
(2) Such d irection may be varied by any superior officer.
163. Warrants. - Warrants for committing a person to a civil
prison to undergo sentence of imprisonment or to get such person
back into Force Custody if so required or to order the release of
such a person from civil prison or any variation done by any
superior officer shall be in such form as may be appropriate to
each case set out in Appendix X.
(2) Such Warrants shall be signed by the Commandant of the
accused or by a staff officer on behalf of a Deputy Inspector
General, Inspector General or the Director General.
164. Warrant in case of Sentences of Death. - (1) Where a
person is sentenced to death by hanging, a warrant in the form set
out in Appendix XI shall be sent by the Director General to the
Superintendent of the Prison where facilities for carrying out
such a sentence exist, after the sentence has been confirmed by
the Central Government and the accused shall be committed to
the same prison by his Commandant o n the appropriate warrant.
(2) Where an accused person is sentenced to death by being shot,
a warrant on the appropriate form set out in Appendix XI shall
be issued by the Director General, to Deputy Inspector General
under whom the accused may be serving, after the sentence has
been confirmed by the Central Government, and the Deputy
Inspector General shall arrange for the execution of the sentence.
BSF RULES 162
165. Changes in Sentence .- Where any change is made in the
sentence of a person already committed to a civil prison, such
change shall be communicated to the Superintendent of the
Prison to which such person has been committed by the
Commandant or such other person as is mentioned in rule 163
on the form set ou t in Appendix XII.
166. Sentence of Dismissal .- (1) Sentence of dismissal shall
take effect from the date of promulgation of such sentence or
from any subsequent date as may be specified at the time of
promulgation.
(2) A sentence of dismissal comb ined with imprisonment to be
undergone in a civil prison shall not take effect until such person
has been committed to a civil prison.
BSF RULES 163 CHAPTER - XIII
PETITIONS
167. Petitions Against Finding and Sentence of Court. - (1) A
person subject to the Act who has been tried by a Court shall be
allowed to put in one petition before confirmation, to the
confirming authority and one petition after confirmation to any
1 [authorities specified in Sub -section (2) of section 117 or the
Inspector General who shall be the prescribed officer for the purpose
of that section.]
(2) In the case of a Summary Force Court he shall be allowed to put
in one petition only t o any of the officers mentioned in section 117.
168. Period of Limitation .-(1) A petition, before confirmation, shall be
submitted, within one week of the conclusion of trial.
(2) A petition after confirmation shall be submitted within 3 months of the
date on which the sentence was promulgated;
Provided that the time taken by such person to obtain a copy
of the proceedings shall be excluded in calculating this period of 3
months.
169. Mode of Submitting Petitions. -
(1)
(a) A petition by a person who is still a member of the
Force shall be submitted through his Commandant.
(b) A petition by a person who has ceased to be a member
of the Force shall be submitted to the
Commandant of the unit in which the trial was held.
(2)
An officer to whom a petition is submitted or to whom a petition
has been forwarded shall forward it to the next
superior within a period of one week;
1.
Subs by S.O. 3678, dated 6th Sept 2006
BSF RULES 164
Provided that an officer may not forward a petition if he is competent
to give the redress asked for and decides to do so.
(3) An officer receiving a petition may send it to the Chief Law
Officer or a Law Officer for advice.
BSF RULES 165
CHAPTER - XIV
COURTS OF INQUIRY
1 [170. Composition. - A Court of Inquiry may consist of one or
more members. Persons not subject to the Act may be appointed
as members when the court is to investigate matters of a
specialised nature, and when officers subject to the Act with
specialist qualifications are not available to be members.]
171. Assembly .- A court of inquiry may be assembled by
order of a Commandant or any officer or authority superior to
the Commandant.
172. Assembly Order .- The order assembling the court of
inquiry shall state the composit ion of the court, the time and
place for its assembly and clearly state the matters which the
court will investigate. It will also provide for the administrative
requirements of the court.
173. Procedure of Courts of Inquiry .- (1) The proceedings
of a c ourt of inquiry shall not be open to the public. Only such
persons may attend the proceedings as are permitted by the court
to do so.
(2) The evidence of all witnesses shall be taken on oath or
affirmation.
(3) Evidence given by witnesses shall be rec orded in narrative
form unless the court considers that any questions and answers
may be recorded as such.
(4) The court may take into consideration any documents
even though they are not formally proved.
(5) The court may ask witnesses any question s, in any form,
that they consider necessary to elicit the truth and may take into
consideration any evidence, whether the same is admissible under
the Indian Evidence Act, 1872 (1 of 1872) or not.
1. Subs by S.O. 187(E), dated 23rd Mar 1984.
BSF RULES 166
(6) No counsel, or legal practitioner shall be permitted to
appear before a court of inquiry.
(7) Provisions of section 89 shall apply for procuring the
attendance of witnesses before the court of inquiry.
(8) Before giving an opinion against any person subject to the
Act, the court will afford that person the opportunity to know all
that has been stated against him, cross -examine any witnesses
who have given evidence against him, and make a statement and
call witnesses in his defence.
1[Provided that this provision shall not apply when such
inquiry is ordered to enquire into a case of absence from duty
without due authority.]
(9) The answers given by a witness to any question asked
before the court shall not be admissible against such a witness on
any charge at any subsequent occasion except a charge of giving
false evidence before such court.
174. Courts of Inquiry when to be Held. - (1) A court of
inquiry may be held to investigate into any disciplinary matter or
any other matter of importance.
(2) In addition to a Court of Inquiry required to be held under
section 62, a court of inquiry shall be held in the following cases: -
(a) (i) All unnatural deaths of persons subject to the Act
or of other persons within the Force lines, an
immediate report shall be sent through the
messenger to the officer -in-charge of the Police
Station within whose jurisdiction the place of
such unn atural death is.
(ii) In cases when such report cannot, for
any reason be delivered within a reasonable
time, a Court of Inquiry shall be held into such
unnatural death.
1. Ins by S.O. 2628 (E), dated 25th Nov 2011
BSF RULES 167
(iii) Immediately on receipt of information of an
unnatural death the Commandant or the senior
most officer of the Battalion present shall
prepare a report on the performa set out in
Appendix XIII.
(b) All injuries sustai ned by persons subject to the
Act which are likely to cause full or partial disability.
The court shall in such case determine whether such
injuries were attributable to service or not.
(c) All financial irregularities, losses, theft and
misappropriatio n of public or Force property, where it is
necessary to obtain the order of a superior officer on such
irregularities, loss, theft or misappropriation.
(d) All losses of secret documents and any other
material of secret or above security classification. Such
a court of inquiry shall be ordered by an officer or
authority superior to the unit Commandant having the
lost document or material on its charge.
(e) All damage to private persons or property in
respect of which there is likely to be a claim agains t the
Government or the Force.
175. Action on the Proceedings of a Court of Inquiry .- The
proceedings of a court of inquiry shall be submitted by the
presiding officer to the officer or authority who ordered the court.
Such officer or authority on receiving the proceedings may either
pass final orders on the proceedings himself, if he is empowered
to do so, or refer them to a superior authority.
176. Copi es of Court of Inquiry Proceedings. - A person
subject to the Act against whom the court of inquiry has given an
opinion or who is being tried by a Security Force Court on a
charge relating to matter investigated by the court of inquiry,
shall be entitled to copies of the proceedings of the court of
inquiry unless the Director General orders otherwise.
BSF RULES 168
1[CHAPTER - XIV A
DISPLEASURE AND WARNING
176A. Displeasure and warning - (1) Displeasure or warning in
the case of officers, for good and sufficient reasons, may be
imposed by the Director General:
Provided that warning in case of officers up to the rank of Deputy
Inspector General for good and sufficient reasons, may be impos ed by an
officer of the rank of Special Director General:
Provided further that the Special Director General may, if he deems
necessary, recommend the issuance of warning by the Director General .
(2) Displeasure or warning in the case of subordinat e officers, for good
and sufficient reasons, may be imposed by an Officer of the rank of
Inspector General and above.
(3) When the competent authority proposes to impose displeasure or
warning, as the case may be, the member of the Force shall be so informed
and given an opportunity to show cause against the proposed action except
when competent authority is satisfied that, for the reasons to be recorded in
writing, it is not expedient or reasonably practicable to give opportunity of
showing cause.
(4) If reply of the member of the Force is considered unsatisfactory by
the competent authority, such authority may convey his displeasure or
warning.
1. Subs by SO, 1757(E) dated 19 April2017.
BSF RULES 169
CHAPTER - XV
MISCELLANCOUS
177. Prescribed Officer under Section 11 (2 ) - The
Commandant may, under sub -section (2) of section 11, dismiss
or remove from the service any person under his command other
than a officer or a subordinate officer.
178. Authority prescribed for the purposes of Section13 (1)
- The auth ority for the purposes of sub -section (1)
of section 13 shall be :
(i) Commandant, in respect of person under his
command;
(ii) Deputy Inspector General, in respect of a
Commandant;
(iii) Inspector General, in respect of a Deputy
Inspector General;
(iv) Director -General, in respect of all persons subject
to the Act.
179. Extent of Punishment .- (1) If the Commandant is of and
above the rank of a Deputy Commandant he may award to
the full extent one or more of the punishments specified in section
53.
(2) If the Commandant is below the rank of a Deputy
Commandant he may award punishment |
53.
(2) If the Commandant is below the rank of a Deputy
Commandant he may award punishment specified
:-
(a) in clauses (a) and (b) of section 53 up to fourteen
days.
(b) in other clauses of section 53 to the full extent.
180. Manner of proceedings against a person under section
55 (1) - The manner in which an officer shall under sub -section
BSF RULES 170
(1) of section 55 proceed against a person of or below the rank of
a
subordinate officer who is charged with an offence under the Act,
be as, set out in Appendix -XIV.
181. Repeal and Savings .- (1) All rules and orders relating to the
matters covered by these rules shall stand repealed in so far as they
are in consistent with any of the provisions of these rules.
(2) Notwithstanding such repeal anything done or any action
taken under the provisions of the rules or orders so repealed shall,
in so far as such thing or action is not inconsistent with th e
provisions of these rules, be deemed to have been done or taken
under the provisons of these rules as if the said provisons were in
force when such thing was done or such action was taken and
shall continue in force accordingly until superseded by an ything
done or any action taken under these rules.
BSF RULES 171
CHAPTER - XVI
182. Transitory Provisions :- Any rule or order applicable to
the Force on the date these rules come into force will unless
repugnant to these rules, continue to apply unless and until
abrogated or modified by the Central Government or any other
competent authority.
APPENDIX -I
(Rule -13)
(Border Security Force Recruiting Form)
Blood Group... ........... ..General No...
Battalion...
1. Name... ...................................... . 2 Religion...
3. Caste/Tribe... ............. .4. Fathers Name...
(In case of Scheduled Castes and Tribes only).
5. Heir...
6. Date of Birth by Christian Era...
(As nearly as can be ascertained).
7. Height... ..................... ..Cms. 8. Chest... ....................
..Cms.
9. Identification Marks...
10. Residence,Village...
........................ .Thana...
District... ........................................... State...
11. Character and antece dents...
verified by :
12. Occupation prior to
enlistment...
13. Educational qualifications, if
any...
14. Date of enrolment...
15. Enrolled as...
Photograph
Date of Photograph...
BSF RULES 172
FORM OF ENROLMENT
ENROLMENT OF
No... ................... ...Name (In Block
Letters)...
as a... ............................... .in the Border Security
Force.
PART - I
(Questions to be put before Enrolment)
You are warned that if after enrolment, it is found that
you have given a willfully false answer to any of the first twelve
of the following questions you will be liable to be punished as
provided in the Border Security Force Act, 1968.
(ALL THE ANSWERS ARE TO BE WR ITTEN IN BLOCK
LETTERS)
Questions
1. What is your Name?
(Underline Surname)
2. (a) What is your place of birth?
State Village/Town, District and State of Birth.
(b) What is your date of birth?
(State in Christian Era)
(N.B. : - To support the date of birth the person being enrolled
will be required to produce in original, together with an attested
copy, one of the certificates specified in Government orders
from time to time.)
3. What is your permanent Home
address?
(a) Village/Town
(b) Thana
(c) Pargannah/Tehsil
(d) District/Taluka
(e) State
BSF RULES 173
4. (a) What is your religion ?
(b) Are you a member of a
Scheduled Caste or Scheduled Tribe?
If so State Caste or Tribe.
5. (a) Are you a citizen of India? If so,
whether by birth or descent or
registration or naturalization or
otherwise?
(b) Are you a subject of Nepal or
1[Bhutan], If so, state of which of
the two?
(c) If you are not a citizen of India or a
subject of Nepal or 1[Bhutan],
what is your Nationality?
(N.B.: - In the case of foreign nationals other than subjects of
Nepal or 1[Bhutan], consent of the Central Government signified
in writing, i f any, should be produced before a person is
enrolled.)
(d) Have you migrated from areas
now in Pakistan ? If so, State the date of your migration.
6. What are your educational qualifications? (Original
Certificates, with one attested copy of each, are to be
produced)
7. Are you married?*
If so State
(i) Date of marriage (s).
(ii) Name (s) of wife/wives.
(iii) Nationality of wife/wives.
*(This does not include widower/divorced).
1. Subs by S.O. 2628(E), dated 25th Nov
2011.
BSF RULES
174
8.
(a) What is your fathers name and address? If dead,
state last address District and State.
(b) What is or was the nationality of your father? If he
is or was an Indian citizen, state whether by birth,
descent, registration, naturalization or otherwise.
9. Are you or have you ever been a member of a party or
organisation of a political, communal or cultural nature? If
so, state the name of the party or organisation with the
period/periods of your membership therein.
10.
(a) Are you in Government Service or have you been a
Government servant? If so, state full particulars and
the reason for discharge and confirm that you were
never dismissed from any Government service.
(b) Are you in receipt of any allowance from the
Government? If so, on what account?
11. (a) Do you now belong to any of the Armed Forces of
India, the Reserves of any of the three services, the
Auxiliary Air Force, the Territorial Army, any
Police Force in India or the Nepal State Army or
any of the Forces of a Foreign Country?
(b) Have you ever served in any of the Armed F orces in
India, the Reserves of any of the three
Services, the Auxiliary Air Force, the Territorial
Army, or any Police Force in India or Nepal State
Army or any of the Forces of a Foreign Country?
If so, state in which and the cause of discharge. If
you have served in more than one of the above
named forces, or if you have served the same
Force in two or more distinct periods, state the
cause of discharge separately in each case.
(c) Do you desire your former service in the I ndian
Armed Forces or any Police Force to count for the
purpose of calculation of Pay and/or Pension, BSF RULES
175
if admissible? If so, do you agree to recovery being effected
of any gratuity you may have received for your former
services is not more than thirty six monthly installments
from your pay commencing from the date of this enrolment
and undertake to refund to the Government through such
recoveries or otherwise the above gratuity in full within
thirty six months of the date of yo ur present enrolment?
12. Have you ever been arrested, prosecuted, convicted, imprisoned,
bound over, interned, externed or otherwise dealt with under any
law in force in India or outside? If so, state particulars.
13. Are you willing to be inoculated or re --inoculated and vaccinated or
re-vaccinated?
14. Are you willing to be enrolled as a combatant in the Border Security
Force?
15. Are you willing to go wherever ordered by land, sea or air and not
to allow any caste or social usages to interfere with the duties for
which you are enrolled?
16. Are you willing to serve in the Border Security Force until
discharged, in accordance with the conditions of service as
specified in Part -II of this form of Enrolment, provid ed that the
President shall so long require your
services?
17. Do you have any objections to take the following oath or to make
the following affirmation at the time of your attestation?
FORM OF OATH
I,... ............................... ...do s wear in the name of God that I will
bear true faith and allegiance to the Constitution of India as by law
established and that I will, as in duty bound, honestly and faithfully serve
in the Border Security Force, and go wherever BSF RULES 176
ordered, by air, land or sea and that I will observe and obey all
commands of the President of the Union of India and the
commands of any officer set over me even to the peril of my life.
FORM OF AFFIRMATION
I,... .................................................,do solemnly,
sincerely and truly declare and affirm that I will bear true faith
and allegiance to the Constitution of India as by law established
and that I will, as in duty bound, honestly and faithfully serve in
the Border Security Force and go wherever ordered by air, land
or sea and that I will observe and obey all commands of the
President of the Union of India and the commands of any officer
set over me even to the peril of my life.
CERTI FICATE
I,... .................................................. ..,do solemnly declare
that the answers furnished by me above are true.
Place...
( ___________________________ )*
Date... .....................................Signature of Person Enrolled.
Left Thumb impression of the person enrolled taken in the
presence of the enrolling officer.
______________________________Signature
______________________________ Name of Witness.
______________________________Address
(* Name in Block Letters)
BSF RULES 177
PART - II
CONDITIONS OF SERVICE
1[1. On enrolment, you shall be subject to the Border Security
Force Act, 1968 and the Rules made thereunder.
2. You are liable to be discharged during the 2[first two
years] of the service if you are not likely to become an
efficient member of the For ce.
3. You will also be liable to be discharged if the Central
Government decides to disband the Force or a portion of it.]
1. amended by SO 1040 dated 25th Mar 1996 2.
Subs Vide S.O. 436 (E) dated29.05.1990
BSF RULES 178
Certificate By The Person To Be Enrolled
I have understood the above conditions and agree to abide
by them.
Place... .............................. ( )
Date... ............................... Signature of the person enrolled.
The above conditions have been read/ explained to the
person being enrolled by me.
Place... ............................ ( )
Date... ............................. Signature of the Enrolling Officer
1. amended by SO 1040 dated 25th Mar 1996
BSF RULES 179
PART - III
HEALTH CERTIFICATE
I do hereby certify that I have
examined... ................................ .candidate for employment in
the Border Security Force. He fulfills medical standards laid
down for the Border Security Force and I cannot discover that he
has any disease, constitutional affliction or bodily i nfirmity.
His age according to his own statement is ...
..................................... ..years and by appearance...
............................. .years.
Height... .....................................................
...Cms.
Chest (a) Maximum... .................... ..Cms. (b) Minimum... ..................... ...Cms.
Place... ( )
Date... Signature of the Medical Officer
Designation
BSF RULES 180 APPENDIX -II (Rule - 39) FORM OF DELAY REPORT
Confidential
No...
Unit address...
Date...
To...
Subject - Ist, (2nd), (3rd), (4th), etc., Eight day delay report
Pursuant to the BSF Act Section 59 and Rule 39.
1. No... ................. ...Rank... ........... ..Name...
2. Offence...
3. Date of offence...
4. Date of offence was discovered...
5. Date of (open/close) arrest...
6. Date of release to open arrest/release without
Prejudice to rearrest (if... Not
relea sed, reasons)...
7. Record of evidence made on...
(If not recorded, reasons)...
8. Application for trial made on...
9. Date due to be tried...
10. Reason for delay...
(Commandant)
Copy to : -
(1) Inspector General (in the case of the (8th) and subsequent
reports).
(2) Director General (Special report in case the accused is
under close arrest for more than 3 months without a trial).
BSF RULES 181
APPENDIX -III
(Rule - 40 (2)
Srl Date Name of Name of Particulars Orders of Sig. and Remarks
No. the the officer of the the Com - date of the
Accused of Sub request or mandant officer or
|
officer of the the Com - date of the
Accused of Sub request or mandant officer or
Ordinate repress - Sub
Offrs to entation Ordinate
whom offrs who
request or conveys
represent - the orders
ation made. of the
Comm -
andant to
the
accused.
(1) (2) (3) (4) (5) (6) (7) (8)
APPENDIX -IV
(Rule - 43)
Form for use at summary proceedings of under -officers
and other enrolled persons under Sec. 53 of the Border Security
Force Act.
OFFENCE REPORT
Company _______________________
Serial No._______________________
For week ending__________________ Last
report submitted on ___________
Charges against No ....
Rank ...
Name ...
BSF RULES 182
Place Offence Plea Names Punish - Sign, Rank Date of Remarks
and date of ment and entry in of witnesses Awarded Destgnation
conduct offence of officer by sheet
whom
awarded
and date
of award
(1) (2) (3) (4) (5) (6) (7) (8)
Signature of Commandant of
the Battalion
Instructions
Col. 1 In cases of absence without leave/desertion, the date of
offence will be the first day of absence.
Col. 2. The section and sub -section of the BSF Act under
which the charge is preferred will be inserted above the
statement of offence.
Col. 4. An officer cannot deal summarily with a case in which he
is the sole prosecution witness.
Col. 5. Must be completed strictly in accordance with the
heading.
Note: - This will be prepared in duplicate. A copy along with
a precis of evidence where made shall be sent to the Deputy
Inspector General.
BSF RULES 183
APPENDIX - V (Rule - 52) FORM OF APPLICATION
FOR A SECURITY FORCE COURT
Battalion/Unit
Station Date ... ......... .20...
Application for a Security Force Court
Sir,
I have the honour to submit charge(s) against
No... ............... ...Rank... .. ...Name... ......................................... ..of the... ........... ..Unit unde r
my command, and request you to accord/ obtain sanction, of... .................... ., that a Security
Force Court may be assemble d for his trial at...
The case was investigated by (a)...
A Court of Inquiry was held on (b)... ......... ..date...
at... ...................... ...(Station).
Presiding Officer... ................... ..Rank, Name and Unit.
..Members
The accused is now at... ................................. ..His
general character is... ..................................... ..(c) I enclose the
following documents (d).
1. Charge Sheet (... ................................. .. .copies) (e).
2. Record or abstract of evidence original (f) and 5 copies.
3. Original exhibits (g).
4. Correspondence (g).
5. Statement as to character ( ) and the conduct sheet of the
accused (g).
6. List of witnesses for the prosecution and defence (with their
present addresses) (g).
BSF RULES 184
7. List of Exhibits (h).
8. Statement by accused as to whether or not he desires to have an officer assigned by the convening
officer to represent him at the trial (Rule 63)
(h).
Signature of Commandant
(a) Here insert name of...
(i) Officer who investigated the charges.
(ii) Company/equivalent Commander who
made preliminary hearing into the case (Rule 45).
(iii) Officer who made the record of evidence (Rule 48).
(b) To be filled in if there has been a Court of Inquiry
respecting any matt ers connected with the charges;
otherwise to be struck out (Rule 60 (iii).
(c) To be filled in by the Commandant.
(d) Any items not applicable to be struck out.
(e) One copy each to Presiding Officer, Law Officer
(if any), members, Prosecutor and the accused.
(f) Original Record or abstract of Evidence to be sent
to Presiding Officer.
(g) 3,4,5 and 6 to be returned to the Commandant of
the unit of the accused with the notice of trial.
(h) 7 & 8 to be sent to the Presiding Officer.
BSF RULES 185
APPENDIX - VI
(Rules - 53 (2))
CHARGE SHEET
The accused, No... ................................................... .(if applicable)
Rank... ................. ...Name...
Battalion/Unit ... .................... ..,is charged with : -
DISOBEYING THE LAWFUL COMMAND OF HIS
SUPERIOR OFFICER
BSF Act
Sec. 21 (2) in that he, at ... .......................... .on...
............................ ., disobeyed the lawful command of his
superior officer, Rank...
Name... ............................................... ...of the same Battalion, to
turn out for Commandants parade, by not turning out.
Place... A.B.
Date... Commandant... ...... ...Bn
BSF
*(To be tried by a General/Petty Security Force Court)
Place...
Date... X.Y.
Inspector General/Dy. Inspector General
(or Staff Officer to IG/DIG)
Frontier
*When the sanction is accorded for the trial of the grave offences by Summary
Security Force Court (BSF Act Sec. 74 (2)), a similar entry should be made on the charge
sheet.
BSF RULES 186
APPENDIX -VII
(Rule - 62)
Forms as to Security Force Court
Forms for Assembly of Security Force Court
GENERAL AND PETTY
Form of order for the Assembly of a General (or Petty)
Security Force Court under the Border Security Force Act 1968.
Orders by...
(Place... ........................ ..date... ........................ .)
No... The details of officers as mentioned below will
assemble at...
Rank... . on the... ............... ...day of... . for purpose
of trying by a...
Name... . Security Force Court, the accused person
(persons) named in the margin (and such other
Unit...
person or persons as may be brought before
them).*
The senior Officer to sit as Presiding Officer
MEMBERS
WAITING MEMBERS
LAW OFFICER
...is appointed Law Officer.
INTERPRETER
...is appointed Interpreter.
PROSECUTOR
...is appointed Prosecutor.
*The accused will be warned, and all witnesses duly required to attend.
BSF RULES 187
The proceedings (of which only two copies are required)
will be forward to... ..................................................................
.Signed this....................... ..day of...
Convening Officer
* Any opinion of the Convening Officer with respect to the
composition of the Court (See Rule 61) should be added here,
thus: -
In the opinion of the convening officer it is not
practicable to appoint officers of different battalions/units.
In the opinion of the convening officer, officers of equal
or superior rank to the accused are not available, having due
regard to the public service.
*(Add here any order regarding counsel. (See Rule 62(g))).
BSF R ULES 188
APPENDIX - VIII
(Rule - 106)
In exercise of the powers conferred on me by Section 105 of the Border Security Force Act 1968,
I... ...................... ...hereby order that... ..................... ...be delivered/paid to... ................ ...(be
confiscated/destroyed).
Date... Signature
Place...
(Confirming
Authority)
BSF RULES 189
APPENDIX - IX
(Rule - 106 (8))
The finding and sentence of the General/Petty Security Force Court held at...
..(Place)... ................................... .from...
day to... ............................... day for the trial of the accused... ................................... ...were
promulgated to the accused by me at... ..................................................................... (Place)
on... ........ ..................................... ...day of... ....................... ..20 ...
* Extracts for battalion records have been taken/No record has been kept of the finding
and sentence.
Date... Signature
Place... (Commandant)
*To be used in case of acquittal on all charges.
BSF RULES
APPENDIX - X
(Rule - 163) 190
Warrants Under Section 121 Securityand
Force Act 1968 125 of the Border
FORM A
Warrant of commitment for use when a prisoner is sentenced to imprisonment for life (Sec.
121).
To
The Superintendent of the (a)...
.................. ...Prison.
Whereas at a General Security Force Court, held
at... ............... ..on the... ................ .day of... ............. ...,20 ... (No... .................. ...Rank... . .....
...Name... .................... . .Unit...
..)
was convicted of (the offence to be briefly stated here, as
desertion on active duty, correspondence with the enemy, or as the case may be).
And whereas the said General Security Force Court on
the... ................. ....... .day of... ..................................... ..20 , passed the following sentence upon the
said (Name...
............................. ...) that is to say...
(Sentence to be entered in full, but without signature).
And whereas the said sentence had been duly confirmed by (b) as required by law (c).
This is to require and authorise you to receive the said
(Name... ............................................. .) into your custody in the said
prison as by la w is required, together with this warrant, until he shall be delivered over by you with
the said warrant to the proper authority and custody for the purpose of undergoing the aforesaid
sentence of imprisonment. The aforesaid sentence has effected from the (d).
BSF RULES 191
.Given under my hand at... .......... ...this the... ...... ..day
of... ........ ..20 ...
Signature (S)
(a) Enter name of civil prison.
(b) Name and description of confirming authority.
(c) Add if necessary with a remission of... ......... ...
(d) Enter date on which the original sentence was
signed.
(e) Signature of Commandant of the prisoner or other
prescribed officer.
BSF RULES 192
X
APPENDIX -
(Rule - 163)
FORM B
Warrant of commitment for use when a prisoner is sentenced to
imprisonment which is to be undergone in a civil prison (BSF Act Section
121).
To
The Superintendent
of the (a)... ............... ...Prison.
Whereas at a (b)... ................. ..Security Force Court held at...
..................... ...on the...
.................................................. ..day of... .........................
.,20... ., (No... ..................... ...Rank... Name...
............................................... ..Unit... .................. ...) was duly convicted of
(the offence to be briefly stated here, as
desertion, theft, receiving stole n goods, fraud, disobedience of lawful
command or as the case may be).
And whereas the said (b)... ...............................
..Security Force Court on the... ................... .day of... ...... ..,20...
, passed the following s entence upon the said (Name...
........................... .) that is to say...
(Sentence to be entered in full, but without signature).
And whereas the said sentence...
(c) has been duly confirmed by (d) as required by law (e) is by law valid
without confirmation.
This is to require and authorise you to receive the said
(Name ... .................................................................................. ...)
into your custody together with the warrant and there c arry the aforesaid
sentence of imprisonment into execution according to law. The sentence has
effect from the (f)...
Given under my hand at... ........................... ..this the...
day of... ................................... .20...
Signature (g)
BSF RULES
193
(a) Enter name of civil prison.
(b) General, Petty or Summary.
(c) Strike out inapplicable words.
(d) Name and description of confirming authority.
(e)
Add if necessary with a remission of.......
(f) Enter date on which the original sentence was
signed.
(g) Signature of Commandant of prisoner or other
prescribed officer.
BSF RULES 194
APPENDIX - X
(Rule - 163)
FORM C
Warrant for use when a sentence of imprisonment for life is
reduced by superior authority to one of a shorter period.
(Section 125).
To
The Superintendent of the
(a)... .................. .Prison.
Whereas (No... ............. .Rank... .Name...
(Late) of the... .............................................. .unit is confined in the
(a)... ...... ...prison under a warrant issued by (b) in pursuance of a
senten ce of (c)... ......................................... . |