Section 15 in The Industrial Employment (Standing Orders) Act, 1946: Power to make rules

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15. Power to make rules.—

(1) The appropriate Government may, after previous publication, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may—

(a) prescribe additional matters to be included in the Schedule, and the procedure to be followed in modifying standing orders certified under this Act in accordance with any such addition;

(b) set out model standing orders for the purposes of this Act;

(c) prescribe the procedure of Certifying Officers and appellate authorities;

(d) prescribe the fee which may be charged for copies of standing orders entered in the register of standing orders;

(e) provide for any other matter which is to be or may be prescribed: Provided that before any rules are made under clause (a) representatives of both employers and workmen shall be consulted by the appropriate Government.

(3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 

State amendment Maharashtra: Gujarat.—In section 15, in sub-section (2),—

(a) in clause (a), after the words “standing orders”, insert the words “or amendments”;

(b) in clause (d), for the words “copies of standing orders entered in the register of standing orders”, substitute “copies of standing orders or model standing orders together with all the amendments filed in the register under section 8”. 

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Sati Pratha

Sati Pratha

Sati, also spelled as Suttee, is a practice among Hindu communities where a recently widowed woman, either voluntarily or by force, immolates herself on her deceased husband's pyre. The woman who immolates herself is, hence, called a Sati which is also interpreted as a 'chaste woman' or a 'good and devoted wife'.

Sati system in India is said to have its origins back in the 4th century BC. However, the evidence of the practice is traced between the 5th and 9th centuries AD when widows of the Kings performed this sacrifice. Jauhar was among one of the most prevalent practices in Rajasthan and Madhya Pradesh.

Raja Ram Mohan Roy, the man who abolished Sati Pratha.

18-year-old Roop Kanwar remains India's last known case of sati, her death stunning a nation and forcing a rewrite of its laws

It was due to the efforts of Raja Ram mohan Roy that Lord William Bentick abolished Sati system in 1829 by declaring it an offence. It advocated freedom of the press and condemned any restriction imposed on it by the Government. It supported widow-remarriage and the education of girls.

Bhabani Charan Bandyopadhyay (1787 – 20 February 1848) was a noted Indian journalist, author and an orator. He was adored for his deftness in speech. He was a conservative Hindu, who opposed Ram Mohan Roy in the abolition of Sati System. He was the founder of the Dharma Sabha.

Eran Pillar inscription of Bhanugupta

The first epigraphic evidence of Sati has been found from Eran Pillar Inscription of Bhanugupta, Madhya Pradesh. Some records suggest that the first example of Sati appears in the Gupta Period in 510 AD.

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According to whom the practice of Sati was not in accordance with the mandates of shastras?

(a) Ashoka.

(b) Lord Wellesley.

(c) Raja Ram Mohan Roy.

(d) None of the above.

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The first epigraphic evidence of Sati is found in which of the following inscriptions?

a) Eran Pillar inscription of Bhanugupta

b) Junagadh inscription of Rudradaman

c) Allahabad Pillar inscription of Samudragupta

d) Madhuban inscription of Harsha

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Internal aids for interpretation of statute

 Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss about internal aids used to interpret a statute.

Internal aids for interpretation of statute:

The preamble, title, heading, marginal notes, punctuation, illustrations, definitions, proviso, explanation etc. are considered as internal aids for interpretation of statute. All these things are incorporated in a bare Act.

Preamble of the Act:

Preamble is a recital to the intent of the legislature as it enumerates the mischief to be remedied. By a long catena of decisions, it is now well settled that preamble is not a part of enactment. In India, it is well settled in the field of constitutional law that the preamble to the Constitution of India and Directive Principles of State Policy are the guidelines for interpreting the constitutional provisions.

Whenever there is a reasonable doubt about the provisions in the statute, it is permissible to refer to the heading of the provision for interpreting the section.

Marginal Notes:

Insofar as marginal notes inserted in the legislation itself are concerned, they are also treated as guidelines for interpreting the statutes. In the case of the Indian Constitution, the marginal notes have been enacted by the Constituent Assembly and hence they may be referred to for interpreting the Articles of the Constitution. If the words used in the enactment are clear and unambiguous, the marginal note cannot control the meaning, but in case of ambiguity or doubt, the marginal note may be referred.

Illustrations

In many statutes, especially, penal statutes, enacted in the olden times, it is the practice of the legislature to give illustrations. The illustrations cannot be used either to cut down or extend the scope of the section.

Long title and short title:

It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid to its construction. The long title which often precedes the preamble must be distinguished with the short title. The long title is taken along with the preamble or even in its absence is a good guide regarding the object, scope or purpose of the Act. The short title being only an abbreviation for purposes of reference is not a useful aid to construction.

Headings:

The view is now settled that the Headings or Titles prefixed to section or group of sections can be referred to in construing an Act of the Legislature. But conflicting opinions have been expressed on the question as to what weight should be attached to the headings. Only in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. The heading prefixed to section or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.

Punctuations

‘Punctuation’ means to mark with points and to make points with usual stops. It is the art of dividing sentences by point or mark. Punctuation is considered as a minor element in the construction of statutes. Text book writers comment that English Court pay little or no attention to punctuation while interpreting the statutes. The same is not the cases in Indian Courts. If a statute in question is found to be carefully punctuated, punctuation may be resorted for the purpose of construction.

Schedules:

Another important internal aid is the schedule or schedules appended to a statute. It forms part of the statute and it can be interpreted independently as well as with the aids of interpretation of statutory provision.

Illustrations:

Illustrations appended to a section form part of the statute and although forming no part of the section, are of relevance and value in the construction of the text of the section and they should not be readily rejected as repugnant to the section.

It would be the very last resort of construction to make this assumption. The great usefulness of the Illustrations which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute should not be thus impaired.

Definitions or interpretation clauses:

Definitions in an Act are to be applied only when there is nothing repugnant in the subject or context, and this is so even if such a qualifying provision is not expressly stated by the legislature. The definition must ordinarily determine the application of the word or phrase defined; but the definition itself must first be interpreted before it is applied. When the definition of a word gives it an extended meaning, the word is not to be interpreted by its extended meaning every time it is used, for the meaning ultimately depends on the context; and a definition clause does not, ordinarily enlarge the scope of the Act.

Proviso:

As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule.

The proviso is subordinate to the main section. A proviso does not enlarge an enactment except for compelling reasons. Sometimes an unnecessary proviso is inserted by way of abundant caution. A proviso may sometimes contain a substantive provision.

Explanation:

It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute.

Non-obstante clause:

A section sometimes begins with the phrase ‘notwithstanding anything contained etc.’ Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the section.

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Punctuations

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. Let’s discuss how are punctuations useful in interpretation of statute and its construction?

Punctuations

‘Punctuation’ means to mark with points and to make points with usual stops. It is the art of dividing sentences by point or mark. Punctuation is considered as a minor element in the construction of statutes. Text book writers comment that English Court pay little or no attention to punctuation while interpreting the statutes. The same is not the cases in Indian Courts. If a statute in question is found to be carefully punctuated, punctuation may be resorted for the purpose of construction.

Punctuation is disregarded in the construction of a statute. Generally there was no punctuation in the statutes framed in England before 1849. Punctuation cannot control, vary or modify the plain and simple meaning of the language of the statute.

However, if a statute is revised and re-enacted but the section under construction in the revised statute is brought in identical terms as in the old statute except as to variation of some punctuation, that in itself will not be indicative of any intention on the part of the Legislature to change the law as understood under the old section.

Judgments:

Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC pp.369, 383

B. K. Mukherjee, J., in Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC pp.369, 383 expressed himself as follows: “Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts. It seems, however, that in the vellum copies printed since 1850, there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporancea expositio. When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text.”

A. K. Gopalan v. State of Madras, AIR 1950 SC pp.27, 45

In Gopalan’s case, Kania CJ, in construing Article 22(7)(a) of the Constitution, referred to the punctuation and derived assistance from it in reaching his conclusion that Parliament was not obliged to prescribe both the circumstances under which, the class or classes of cases, in which a person may be detained for a period longer than three months, without obtaining the opinion of the Advisory Board and that Parliament on a true construction of the clauses could prescribe either or both. It would appear, with respect to modern statutes, that if the statute in question is found to be carefully punctuated, punctuation, though a minor element, may be resorted to for purposes of construction.

Mohd. Shabbir v. State of Maharashtra, AIR 1979 SC pp.564, 565 : (1979) 1 SCC 568 : 1979 SCC (Cri) 356

An illustration of the aid derived from punctuation may be furnished from this case where section 27 of the Drugs and cosmetics Act, 1940 came up for construction. By this section whoever 'manufactures for sale, sells, stocks or exhibits for sale or distributes' a drug without a licence, is liable for punishment. In holding that mere stocking is not an offence within the section, the Supreme Court pointed out the presence of comma after 'manufactures for sale' and 'sells' and absence of any comma after 'stocks'. It was, therefore, held that only stocking for sale could amount to offence and not mere stocking.

Dr. M. K. Salpekar v. Sunil Kumar Shamsunder Chaudhari AIR 1988 SC 1841

In this case the court construed clause 13 (3) (v) of the C.P. and Berar Letting of Houses and Rent Control Order. This provision permits ejectment of a tenant on the ground that "the tenant has secured alternative accommodation, or has left the area for a continuous period of four months and does not reasonably need the house." In holding that the requirement that the tenant ‘does not reasonably need the house’ has no application when he 'has secured alternative accommodation' the court referred and relied upon the punctuation comma after the words alternative accommodation.

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Discuss the essential components of the valid transfer of property.

Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day.

In previous blog, we discussed about the mode and the test regarding transfer of property. Let’s discuss about the essential components of the valid transfer of property.

Discuss the essential components of the valid transfer of property.

The transfer of property Act, 1882 provides for the transfers, relating to immovable property and it also lays down the principles relating to the transfer of property regarding what constitutes a transfer and the conditions attached to it. It was observed by the Supreme Court that in general, the transfer of property means passing of entire bundle of rights i.e. ownership from the transferor to transferee or there may be the transfer of only some of the rights i.e. partial interest.

According to the Act, “transfer of property” is defined as an act in which a person conveys the property to one or more living persons or himself and one or more other persons. The transfer may be done in the present or for the future and the term “living person” includes companies, body corporate, an association of persons whether incorporated in India or not. The property transferred can be of any type either movable or immovable. The definition is provided in detail in Section 5 of the Act.

Essentials of a valid transfer of property:

To constitute a valid transfer it has to fulfill the following conditions:

1) Transfer must be between two living persons:

Both the transferor and transferee must be living at the date of transfer. The property has to be conveyed from one living person to another. If the new title or interest is not created in favor of the transferee then the property is not conveyed and is not regarded as a transfer of property.

In case of Harish Chandra v. Chandrashekhar, 1977, it was held by the court that a release deed is a conveyance and hence it is a transfer of property.

2) The property must be transferable:

Section 6 of the Transfer of the Property Act, 1882 provides for the exceptional types of property whose transfer is forbidden by the law. These properties include Spes succcessionis i.e. a chance of succession, Right to re-entry, Easement, Restricted interest, Maintenance, Mere right to sue, Public office, Pensions, etc.

In R. Rajegowda v. H. R. Shankar Gowda (2006), it was held that a person having life interest in property cannot bequeath it by executing a will.

In Sundariya Bai Chaudhary v. Union of India, 2008 the court held that the family pension of the deceased was not in the nature of an estate and it was not transferable so it could not be bequeathed by a will. The court observed that other benefits like provident fund, gratuity, and extra remunerations would be included in the category of an estate.

3) The transfer should not oppose to nature of interest:

There are certain things which are known as “res communes”, these things are in their natural form and they do not belong to anyone, like, air, water, sea, light, etc., it is not possible to hold and possess these things separately so if anyone tries to transfer such a thing it would be opposed to its nature.

4) The consideration or the object must be lawful:

To be a valid transfer the consideration and the object must be lawful. As per Section 23 of the Contract Act the consideration or the object is unlawful if It is forbidden by law

a) if it defeats the provisions of any law,

b) if the object or consideration of any agreement is made for fraudulent purposes.

c) If the agreement is made concerning harm to any person or his property.

d) If the agreement which has been entered into is immoral.

e) If the agreement is against public policy.

5) Persons competent to transfer:

Section 7 of the TP Act, provides that if the person is competent to contract then that person is competent to transfer the property either wholly or in part, and either absolutely or conditionally, in the manner which has been permitted by law. Such competency for transfer of property is provided in the Section 11 of the Contract Act.

In case of Mallikarjun v. Mareppa 2008, a person brought a property in the name of his minor son and later sold it again while the son was still a minor. Court’s permission under Section 8 of the Hindu Minority and Guardianship Act 1956 was necessary in this case but was not taken. The provision was mandatory so the sale was held to be void.

Sadiq Ali Khan v. Jaikishore 1928– In this case the Privy Council observed that a deed executed by a minor was null and void. Principle of estoppel cannot be applied to a minor. A minor is not competent to transfer but transfer made to a minor is valid and legal.

Amina Bibi v. Syed Yousuf, 1922- The Allahabad High Court held that a contract made by a lunatic is void under section 11 of the Indian Contract Act. The transfer of his own property by him is also void.

K. Kamama v. Appana- In this case it was held that under section 11 of Hindu Minority and Guardianship Act, a de facto guardian is merely a manager and cannot dispose of the property of a minor. Such sale would be invalid.

Chittu Singh v. Chatan Singh, 1923- It was held that a person who has no right at all to have possession has no right to make any valid transfer. The power of such person cannot exceed the power of the person who has appointed him.

6) The transfer must be made in the manner and the form required by the Act:

Section 9 of the Transfer of Property Act states that the transfer of property can be carried out without a written instrument where writing is not expressly necessary under the law. Sale deed, Mortgage, Transfer of actionable claim, Exchange, relinquishment, gift deed, etc. involving immovable property of valuation, not less than Rs. 100 must be registered.

Conclusion:

If above stated essential requirements are not fulfilled then the transfer will not be considered a valid one or it can be declared void.

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List of references:

Essentials of a valid transfer – Transfer of Property Act, 1882

Essentials of a Valid Transfer Under Transfer of Property Act

What is meant by transfer of property?

 Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day. Let’s discuss the transfer of property.

What is meant by transfer of property?

Section 5 of the Transfer of Property Act, 1882 defines the Transfer of the Property. The said Sections reads as follows:

5. “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons;

and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

As per the Section 5, transfer of property means an act by which a living person conveys property, in present or future, to one or more living persons, or to himself or to himself and one or more other living persons. ‘Living person’ includes a company or association or body of individuals, whether incorporated or not.

The property may be movable or immovable, present or future. Such transfer can be made orally, unless transfer in writing is specifically required under any law.

Any person competent to contract and entitled to transferable property, or authorized to dispose of transferable property on his own, is competent to transfer such property. The property can be transferred wholly or in part. It can be transferred either absolutely or conditionally. Such transfer can be only to the extent and in manner allowed and prescribed by law.

The Transfer of Property Act, 1882, which came into force on July 1, 1882, deals with the aspects of transfer of properties between living beings. The term transfer includes transfer through sale, mortgage, lease, actionable claim, gift or exchange. The Act does not cover transfers by the operation of law, in the form of inheritance, forfeiture, insolvency, or sale through the execution of a decree. The Act is also not applicable on the disposal of properties through wills and does not deal with cases of succession of property.

Conclusion:

Thus Section 5 of the Transfer of Property act, 1882 provides for the transfer of properties between living persons. The person may include a legal personality. The term transfer includes transfer through sale, mortgage, lease, actionable claim, gift or exchange.

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List of references:

1) Section 5 in The Transfer of Property Act, 1882

2) Transfer of property definition

3) Transfer of Property Act, 1882: Key facts

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THE GENERAL CLAUSES ACT, 1897

Vande Matram! This article is about General Clauses Act, 1897.

Relevant Part of Bare Act:

THE GENERAL CLAUSES ACT, 1897

ACT NO. 10 OF 1897¹

 [11th March, 1897.]

An Act to consolidate and extend the General Clauses Act, 1868 and 1887.

WHEREAS it is expedient to consolidate and extend the General Clauses Acts, 1868 (1 of 1868) and 1887 (1 of 1887); it is hereby enacted as follows:—

PRELIMINARY

1. Short title.—(1) This Act may be called the General Clauses Act, 1897;

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Footnotes:

1. For Report of the Select Committee, see Gazette of India, Pt. V, p.77, and for Proceedings in Council see Gazette of India, Pt.VI, pp. 35, 40, 56 and 76.

This Act has been declared to be in force in the Santhal Parganas by the Santhal Parganas Settlement Regulation, 1872 (3 of 1872), s. 3; in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929), s. 2; in Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), s. 3 and the Schedule; and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), s. 3 and the Schedule The Act has been partially extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and to the new Provinces and Merged States by the Merged States (Laws) Act, 1949 (59 of 1949).

The Act has been extended to—

Goa, Daman and Diu with modifications by Regulation 12 of 1962, s. 3 and the Schedule;

Dadra and Nagar Haveli by Regulation 6 of 1963, s. 2 and the First Schedule;

Pondicherry by Regulation 7 of 1963, s. 3 and the First Schedule; and

Laccadive, Minicoy and Amindivi Islands by Regulation 8 of 1965, s. 3 and Schedule

It has been amended in Assam by the Assam Commissioners’ Powers Distribution Act, 1939 (Assam Act 1 of 1939).

2. The word “and” rep. by Act 10 of 1914, s. 3 and the Second Schedule.

3. Sub-section (2) rep. by s. 3 and the Second Schedule, ibid.

2. [Repeal.] Rep by the Repealing and Amending Act, 1903 (1 of 1903), s. 4 and the Third Schedule.

Short Q and A

·         What is the purpose of the General Clauses Act, 1897?

o   The General Clauses Act is to consolidate General Clauses Act, 1868 and 1887.

·         Is General Clauses Act, 1897 colonial law? Who enacted this Act in India?

o   These both are colonial laws and General Clauses Act, 1897 is colonial law enacted in the territory of India under British Rule and is still enacted in India.

 

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