Introduction

An agreement pursuant to Section 29 of the Indian Contract Act, 1872, is void when its terms are vague and unclear, and cannot therefore be made clear. For example: X agrees to exchange one ton of oil. This agreement is unenforceable because it is ambiguous because the expected classification cannot be ascertained.

A contract to negotiate the terms of an agreement is not an "agreement to agree" in appearance or in substance. If despite their bonafide effort, the parties fail to arrive at an ultimate agreement on the terms in effect the contract to negotiate is deemed performed and the parties are released from their obligations. Failure to acknowledge is not itself a contractual violation of the contract of negotiate.  A party will only be responsible if a failure to attain ultimate agreement emerged from a breach of that party’s obligation to negotiate in good faith.

"Agreements to Agree" is a concept wherein any party say a Company will  come to an agreement on the basis of an understanding (whether explicit or implied) that a further arrangement will be reached at some scheduled time, when the commercial grounds for and proposed terms of that further agreement may have become more manifest.

As a consequence, instead of negotiating their proposed secondary agreement at the main contracting stage, the parties slightly agree that some or all of the contractual terms of that agreement will be decided in the future.

R&D Construction Group Limited v. Hallam Land Management Limited, [2010] CSIH 96

Hallam had entered into a 5 year optional agreement with a landowner in 1999 to purchase land once Hallam had obtained planning permission. Hallam were obliged to use all reason endeavours to obtain planning permission. In 2002, Hallam entered into a contract in which R&D contracted to buy part of land. This contract was subject to Hallam agreeing a purchase price with the landowner in terms “all reasonable acceptable” to the landowner. The contract also include a longstop provision whereby Hallam had seven months to complete the purchase from the landowner after receiving written notice from R&D solicitors. Hallam could within the 7 months.

Due to the rising land market and a disagreement regarding access Hallam were unable to agree a price within the seven months period and decided to withdraw from the contract. In March 2005 Hallam finally bought the land and resold it to a third party. R&D then brought an action for breach of contract against Hallam. Two questions arose:

1.      Was the proviso requiring the landowner to use all reasonable endeavours to agree the price enforceable given that it was an agreement to agree?

2.      If the provision was enforceable were Hallam in breach of contract?

Indicators of Agreement to Agree

An agreement to agree shall constitute the following:-

1.      Clarity for such agreements is crucial

If the subject matter of the agreement cannot be easily ascertained, the agreement is likely an agreement to agree. When legality comes to court, it is impossible that the judge can substitute or incorporate terms to make it legally binding in the agreement.

2.      Intention of parties

If the intention of the parties are made unclear by the lack of an arbitration clause, for example, the insertion of which would indicate an intention to agree, then the contract may be legally enforceable.

3.      Word used

If the terms such as “shall”, which conveys an absolute obligation to agreement, are missing, then the agreement is more likely an agreement to agree.

If the above measures are absent, an agreement can also be a completely enforceable that must include clearly defined terms and adequate consideration, but leaves some specifics to be worked out by the parties. While the parties intend to respond to an agreement on the missing words, what they expect is often uncertain about their failure to reach an agreement.

Mentioned below are several keys takeaways available for anyone who wants to ensure that their agreement is enforceable in the future-

1.      Certainty in a contract

If a party wishes to enter into an enforceable agreement, the contract’s clauses should be drafted to avoid uncertainty.

2.      Methods to settle uncertainty

Uncertainty is a crucial element that may cause the agreement to be unenforceable. A well-drafted contract should set out methods or express ways to overcome uncertainty. This may include outing steps to follow if negotiations break down or requiring specific dispute resolution processes.

3.      Provide specific descriptions for “negotiating in good faith “or using reasonable endeavours”

If the contract include express definitions and examples, a court will be more likely to consider the agreement binding. This can be as the parties taking part in two meetings or attending a mediation session. 

QUO WARRANTO: A CRITICAL ANALYSIS

Introduction

The literal meaning of quo-warranto is “by what authority”

Initially, the quo warranto was a writ of law for the King against the subject who asserted or usurped any office, franchise, rights or privilege belonging to the Crown to ask by what basis he accepted his argument to determine the right. Edward I used this writ to keep his rights and privileges from being infringed.

Therefore, quo warranto was a tool in the King's hands against the usurpation of a Crown prerogative, but it had long been extended beyond that point and used by private suitors as well.

”It is said that quo warranto was only made available to the subject on modern times, but this view is wrong. Under Edward I it became a patent royal weapon against the usurper of franchise jurisdictions, but it had been used by private suitor long before that time”. Says De Smith

You will grant the writ of quo warranto against the holder of a public office. The writ is increasingly calling him to trial under what jurisdiction he holds the office. If the occupant does not have authority to hold the office, he may be disqualified from enjoying it. Unless, on the other hand, he has the authority to hold it, the quo warranto writ protects him against being stripped of the same.

As well as being well known in England, India has adopted the principles and limitations. It is a letter of technical character given against an office usurper or against a person who has the right to make an appointment to that office.

Historical Development

Initially, a letter of quo warranto was only available for use by the king to protect the king from the violation of the royal prerogative or the privileges, franchise or independence of the crown, and knowledge in the existence of quo warranto, which had taken the place of the old letter of quo warranto, was similarly limited in the usefulness as a remedy. It was considered a cilil writ.

Under section 9 of the Law on the Administration of Justice, knowledge in the nature of Quo Warranto was abolished in 1938 and there was an injunction to prohibit any person from working in an office where he is not entitled to act

In the form it was a criminal proceeding and it retained this dimension for some time after the writ was replaced by the quo warranto information inasmuch as there was also a fine, albeit nominal, in addition to trying the civil rights to seize the franchise or evict the wrongful owner

Now it is stipulated by Section 48 of the 1925 Supreme Court of Judicature Act that trials in quo warranto shall be deemed to be civil proceedings, whether for appeal purposes or otherwise.

Quo Warranto under Indian Constitution

Specific provision has been made in Article 32 and 226 of the Constitution of India for the issuance of directions, orders or writs in the nature of quo warranto by the Supreme Court and the High courts. Quo Warranto is considered an appropriate and sufficient remedy for the determination of the right or title to a public office and the dismissal of one who unlawfully usurped or intruded into that office. The object of proceeding in quo warranto against a public officer is to decide whether he is entitled to hold office and exercise his duty, and the quo warranto provides for a judicial inquiry into this matter.

Quo Warranto has been considered a discretionary prerogative writi and under certain conditions, it can be declined. Therefore, the writing of quo warranto is, of course, not a writing, it is a discretionary writing, and the High Courts may refuse to write on the grounds of delay and amusement, acquiescence, waiver, availability of alternative remedies or where the office usurper has ceased to hold the offense by the time written petition is lodged.

In the Sasibhushan Roy v. Pramathnath Banerjee case, the Calcutta High Court held that the specific crime must be of a public nature in order to lie in the writ of quo warranto, i.e. includes a delegation of some of the government's sovereign roles, executive, legislative or judicial, to be exercised by it in the public interest. Such a public offense must be essentially real, not terminable at will. The officer who occupies the office must be autonomous and not just one who performs the duties of a deputy or assistant at the behest of another officer who must be in the office's actual position. Mere declaration that a person is appointed to an office or mere appointment to a particular office is not enough. He must accept such office. The office must be held in contravention of law and if there is a clear irregularity in the appointment, writ of quo warranto will not lie. Quo warranto to lie too when the legitimacy of the individual occupies the office but later acquires a disqualification. The above conditions for granting a writ of quo-warranto will co-exist.

Limitations

1.      Offence must be of public character

Writ of quo warranto is issued only in respect of a public offence. A lawsuit is not lying against a private corporation offence. It can not be assumed that the post of a corporate manager incorporated under the Companies Act is a public office. Even the writ of quo warranto can not go against the management board of a private educational institution not formed by statute or statutory-force law.

A Writ of Quo Warranto would not lie even against a person holding post in a government company which may be an ‘authority’ and, therefore, ‘state’ within the meaning of Article 12; as, such post is not a civil post, nor it is a post or offence held under the state. Where the entity is ex facite private, a writ of this nature cannot be issued- validity of an election to the membership of the working committee of an association like Arya Pratinidhi Sabha is not amenable to writ of Quo Warranto.

2.      No collateral attack

One significant drawback in this regard is that the appointment can not be collaterally attacked

Introduction

Exclusion is fundamental to the system, and therefore a consequence of its basic feature. Social Exclusion is caused by endogamy practices and social division between caste and classes. Every caste has suffered from unfair and hierarchical assignment of privileges, excluding those at the top of the caste hierarchy. The men who were at the bottom of the caste hierarchy previously marginalized are the ones who suffered most. For instance, apart from manual labor and certain jobs considered impure and polluting, the right to do business or own property was denied to the poor communities. The right to education and the civil cultural and religious freedoms were even denied to them. In addition they were made to suffer from residential discrimination and social isolation because the high castes found them impure and polluting and not fit for social association. The father of Indian constitution Dr. B.R. Ambedkar had introduced the system of democracy in the constitution after independence.

India is the largest democratic system. Equal representation in all parts of the country should be the right of democracy citizens. Based on the principle of democracy, reservation policy is a set of affirmative actions pursued by reserving access to seats for equal representation in government jobs, higher educational institutions and politics to provide social and educational backward quotas in India. Reservation policy had not aspired to the results, as it was not supported by a more comprehensive plan that actually tackles systemic injustice and inequality.

Reservations are regulated by constitutional laws, and municipal regulations and rules. Scheduled castes, scheduled tribes and other backward groups, and backward classes among Muslims in some states under a category called BCM, are the primary beneficiaries of constitutional reservation policies. In the Indian constitution the principle of equal representation pervades the provisions. The fundamental aim of the Indian constitution was to establish an egalitarian society in which social, cultural, and political justice prevailed and status and opportunity equality was made available to all.

Concept of Reservation

According to Justice Chinappa Reddy : "Reservation is not a charity it is a representation." Reservation in common terms refers to an act of reserving or withholding reservation in Indian law. It is a form of an affirmative action whereby a percentage of seats are reserved in the public sector union and state civil service union and state government departments as well as in both public and private education. The reservation scheme is also applied for the scheduled castes, scheduled tribes and other backward classes  for representation in the parliament of India.

Pursuant to Article 16(4) and Article 335 there is no time limit for reservations in facilities provided by government resolutions. India's constitution is against any form of discrimination in both the public and private sectors. Though  the Government has a right under the Constitution  to take special steps to uplift the deprived classes. The Constitution speaks only about jobs reservation. It does not address any specific percentage of job reservations, so the percentage varies from time to time depending on census.

The reservation of seats in the legislatures was initially for ten years, as specified in Article. 334,  the Constitution of India. Subsequently, a series of constitutional amendments expanded it for more years. Therefore, in every 10th year, the issue of political reservation comes up for extension in Parliament.

Reservation in Employment :

Under Article16(4), Indian Constitution provides for reservation in jobs. It gives the State the power to make certain provisions for reserving positions or jobs in favour of any backward class of citizens who, in the State's view, are not adequately represented in the services provided by the State.

Therefore, Article 16(4) shall apply only if two conditions are fulfilled:

1.      Citizen class is retrograde.

2.       The class is not adequately represented in the services provided by the State.

Article. 16(4), must be read in the light of Art. 335 which states that the representations of Schedule Castes and Schedule Tribes shall be taken into account in a manner consistent with the maintenance of administrative efficiency. The reservation for backward classes should not be unreasonable. It should be regarded with respect to the general public's employment opportunities.

In Article. 16(4) the word "reservation" means a specific quota reserved for a special category of individuals. It has been held that the very object of reservation is to shield the weaker section of society   against competition  from the candidates of the general category. It has also been accepted that reservation meant the selection of less meritorious men. If the constitutional pledge of social justice is to be fulfilled, this expense must be paid.

It is a settled law that reservation provisions may be made either by law enacted by the legislature or by an executive order issued by the State in the exercise of its executive power without any legislative assistance.

It was also claimed in Valsamma Paul v. Cochin University's ct., 1996 (3) SCC 545 that acquiring the status of Scheduled Caste etc. by voluntary mobility in these categories or transplantation in backward caste by adoption, marriage or other voluntary act would not, as the case may be, entitle a person to take advantage of the reservation either under Article. 15(4) or Article. 16(4).

Article. 16(4) is not an Exception to Article. 16(1):

Article. 16(1) states that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”.

Art. 16(4) is an enabling provision which gives the State the power to make reservations for appointments in favor of backward classes of citizens who are not adequately represented in the State's services either numerically; 0* 7 or qualitatively. It does not confer on citizens the right to claim reservation. Art 16(4) on has not been considered necessary.

Reservation in Promotion - [Article. 16(4A)] :

In S. Rly. V. Rangachari AIR 1962 SC 36, the Supreme Court held that reservation could be made pursuant to Art. 16(4) not only at the initial stage of recruitment but also in matters of promotion from the lower to the higher post or office. It was a rule that lasted for more than 30 years. Nevertheless, after taking all the circumstances into account, the majority in Indira Sawhney v. U.O.I  (supra) said that Article. 16(4) did not consider or authorize reservations in promotions, although the term "appointment" in Article. 16(4) included appointment by direct recruitment or promotion or transfer.

Conclusively, it was held that Article. 16(4) envisaged not only quantitative but also qualitative protection of the disadvantaged class of citizens. This question had to be resolved, the court said, not by reading Article. 16(4) alone,  but by a combined reading of Article. 16 (4) and 335.

Nevertheless, the court agreed that it would be appropriate for the State to extend compromises and relaxations in promotional matters to representatives of reserved groups without undermining the administration's efficacy.

In Ashok Kumar Gupta v. State of UP. JT 1997(4) SC 251, the Supreme Court clarified that, according to Articles 16(1) and 14, Article. 16(4A) provided a right to promotion of Dalits and Tribes as a fundamental right where they did not have adequate representation compatible with administrative efficiency. Accordingly, the Court ruled that the right to reserve was a fundamental right under Article. 16(1) and that a promotional reservation could not be deemed either unfairly or unconstitutionally.

In Jagdish Lai v. State of Haryana, AIR 1997 SC 2366 the Supreme Court ruled that if reserved candidates (Dalits or Tribes) had been promoted to a general candidate earlier, their seniority in the new framework would rank on the date of their admission to the promotion and this seniority would not and could not have the effect of being wiped out from their respective data after the promotion of the general candidate. The court observed that the protective discrimination provided for in Articles 16(4) and 16(4A) was the armor "to establish the equilibrium between equality in law and equality in results as a fact to the disadvantaged." The Court stated that the principle of reservation in promotion provided equality in results.

A five Judges Constitution Bench of the Supreme Court in Ajit Singh v. State of Punjab, JT 1999(7) SC 153 overruled the case of Ashok Kumar Gupta46 and Jagdish Lai’s case and held that they had not been correctly decided. The court clarified that the primary purpose of Article. 16(4) and Article. 16(4A) in certain posts was due representation of certain groups. The court held: “The Constitution has laid down in Article. 14 and Article. 16(1), the permissible limits of affirmative action by way of reservation under Article. 16(4) and 16(4A). While permitting reservations at, the same time, it has also placed certain limitations by way of Articles 14 and 16(1) so that there is no reserve discrimination.” The court ruled that both Articles 16(4) and 16(4A) neither grant any fundamental right nor impose any constitutional duties, but are purely in the nature of enabling clauses at the discretion of the State to consider making a reservation if the circumstances set out in those Articles so warrant. The court upheld the decision in the cases of U.O.I. v. Virpal Singh,  AIR 1996 SC 448 and Ajit Singh Juneja v. State of Punjab, AIR 1996 SC 1189, with their support.

The basic purpose of providing employment reservations is not merely to give jobs to some people in the committees (which are considered to be inferior) and to increase their representation in the services, but to elevate people socially and educationally in order to enable them to take their place in society. In the absence of legitimate protection, certain communities and Tribes would not be able to compete successfully with their more fortunate brothers and sisters in the matter of admissions to various study courses and the securing of public employment.

SUPREME COURT ON RESERVATION

In the present case, the controversy concerned reservations to SCs and STs in promotions for the post of assistant engineer (Civil) in the Department of Public Works of the Uttarakhand government.Initially the reservation was made under the Uttar Pradesh Public Services Act, 1994 (Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes). Section 3(7) of this Act provided that, unless amended or repealed, the government orders providing for quotas in promotions that were in force at the time the Act was passed in 1994 will continue to operate.

The Act was made applicable to the new state after Uttarakhand was established in 2001, with a few modifications. Nevertheless, Section 3(7) was subsequently held by the Uttarakhand High Court as unconstitutional in 2011.

The State Government then formed a committee to collect quantifiable data on the backwardness of the reserved communities in Uttarakhand and the inadequacy of their representation in public posts, in order to satisfy the requirement of Article 16(4A).

In 2012, the then state government announced that all public service positions would be filled out for SCs and STs without reservation. We have abolished all government orders calling for such reservations. This was questioned again at the high court.

Then, in April last year, the Uttarakhand High Court struck down the state's 2012 decision. A review petition against this order was filed in the high court, which did acknowledge that Article 16 (4A) is an enabling provision.which stated that Article 16(4A) was an enabling clause.But it instructed the state government to collect quantifiable data about the inadequacy of the representation of SCs and STs in state services, and then to take a decision to make reservations in promotional . this opinion was challenged in the Supreme Court.

The apex court has now reiterated that Articles 16(4) and 16(4A) grant no fundamental rights to claim reservations in promotions. It is up to the state government to decide if reservations are required for appointment and promotions to public posts, it said.

“It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” it observed. 

It further ruled that since Articles 16(4) and 16(4A) do not confer fundamental right, courts cannot issue a direction to the state government to provide reservations. This explained that since the state government had decided not to make reservations, it did not have to collect quantifiable data at all.

“DOWRY CRUELTY AND DOWRY DEATH”

Introduction

In India, marriage is steeped in rituals, and deep-rooted cultural values are conveyed by word of mouth, and in some cases, with changing times. There is one tradition, however, that stubbornly opposes changing the dowry system in India, it has origins in medieval times when her family gave a gift in case or kind to a pride in preserving her freedom after marriage. It became the only legal way to get married during the colonial period, with the British making the custom of dowry compulsory.

A dowry is transfer of parental property, gifts or money in the case of a daughter's marriage. Dowry is in contrast to the associated bride price and dower definitions. Although bride price or bride service is a contribution to the bride's parent's dowry by the groom or his family, it is the wealth transferred from the bride's family to the room or his family, ostensibly for the bride. Likewise, dower is the property that was settled on the bride herself by the groom at the time of marriage and remains under her ownership and control. Dowry Prohibition Act, 1961, was enacted to outlaw dowry and related offences

Enactment of Legislation related to Dowry –

The Dowry Prohibition Act, 1961.

The first national dowry-related law was enacted as the Dowry Prohibition Act, 1961. The act sets out a range of preventive and corrective measures but, as could be expected, the objectives were not met. The failure is not primarily due to a few law flaws, but also due to the government's compliance, but due to the fact that the custom of dowry is too well etched among all the cross-sections of society. The lack of government compliance is that no action is taken on reported incidents as well as people are not aware of the regulations. Although the law and the courts continue to provide assistance, the situation has not improved.

In the year 1961, the dowry prohibition act was revised twice to extend the meaning of the term "dowry" and to intensify punishment for the various breaches of the act's provisions. Section 2 of the Act states that any property or valuable protection provided or agreed to be given directly or indirectly in connection with marriage in the future amounts to dowry from one hand to another. The phrase used in the original Act was translated by the court as "as consideration for the marriage of such parties" to give a specific sense to the word "dowry. ' In Inder Sain v. State, it was held that "consideration" was limited to intent or intention, compensation or reward for marriage and would therefore not include any property sought or rendered after marriage. The expression “any time after the marriage” has been brought to replace “after marriage” to eliminate a restricted interpretation of the statute. Gift concepts are only allowed in Indian marriages which are customary in nature, which does not create a financial burden on a family. A list of such presents is to be prepared along with the value and description and must be signed by the bride and bridegroom.

In the case of Sanjay Kumar Jain v. Delhi State it was said that "The practice of dowry is a great slur and curse on our culture, democracy and land. It is unbelievable how often in our culture these tragic and condemnable instances of death by dowry occur. Every effort has to be made to tackle and curb the growing threat of dowry death. The legislature was seriously concerned with this unfortunate reality of our society and the Dowry Prohibition Act, 1961, was enacted to curb the increasing threat of dowry deaths with a firm hand.

Some strict penal laws were passed or amended from time to time to stop taking dowry and demanding it. Under section 3 of the act giving and receiving dowry is punishable with a minimum term of 5 years and a fine of Rs 15,000 or dowry amount, whichever is greater. Similarly, dowry demands are also punishable under section 4 for the period of six months to five years, and fine up to Rs 15,000. After a few changes the act aims to curb this social threat. Section 7 includes persons and organizations that may initiate the proceedings :

·         Police

·         Aggrieved person

·         Family, Relatives and Friends

·         Any recognised welfare institution or organization

Section 8 attempts to make act harder by incorporating crimes that are not non-bailable and cognizable. Section 8(a) further notes that the burden of proof lies with the individual denying the offence.

A traditional practice in marriages is that bride's articles and ornaments are immediately taken into possession by the husband or his family may be transferred to the wife or her heirs by virtue of section 6, with a period of three months breaching such an act amounting to imprisonment from six months to two years and a fine of five to ten thousand rupees. In the case of Pratibha Rani v. Suraj Kumar, the Supreme Court held that taking possession of bride articles would lead to a criminal breach of confidence punishable under section 405 of the penal code.

The faulty definition of dowry and lack of compliance instrumentality is a joint parliamentary committee that investigated the workings of the act in 1982 and provided two reasons for abject failure of act. While, the definition of dowry was updated and the compliance provision was actively worked out after the 1982 committee report.

Indian Penal Code, 1860.

Not only dowry problems are the appropriate target of criminal law, but dowry-related violence often falls under the purview of criminal law. Failure to dowry legislation and rise in dowry death rates contributed to the 1983 and 1986 Statutory Amendment by introducing section 304(b) and section 498(a). In short, we may assume there are four cases in which married woman is exposed to violence and abuse leading to an offense being committed.

 First, Dowry Death-Section 304(b) IPC:- The crime referred to in section 304(b) describes "Dowry Death" as the death of a woman caused by burns or physical injury, or under unnatural circumstances within seven years of her marriage, where it is shown that she has been raped or abused by a husband or his family in relation to dowry who is punishable by a term of seven years imprisonment for life. The seven-year period would be considered to be a cut-off date due to seven steps taken by the bride and bride groom of the holy nuptial fire for marriage completion where one step is considered to be one year. In Punjab v. Iqbal Singh case, the Supreme Court clarified the seven-year period as it is called tumultuous one after which the legislature believed the couple would have settled in life.

The term dowry was not specified in the Indian Penal Code, whereas the clarification in section 304(b) stated that dowry is to have the same significance as that defined in section 2(1) of the Dowry Prohibition Act, 1961.

Essential of Dowry Death under section 304(b) of IPC :

·         Death was caused by burns or damage to the body, or other than in normal circumstances.

·         Death was to have taken place within seven years of her marriage.

·         Woman must have been exposed to husband or his family being brutalized or abused.

·         Cruelty or abuse should be linked to dowry demand, and soon before death.

In Satbir Singh v. State of Haryana, the Apex Court held that the prosecution is in a position to define the ingredients of section304(b), IPC as the burden of proof of innocence shifts on defence. The rules laid down in section304(b), IPC are stricter than those laid down in section498(a) of the Penal Code. The crime is clear, unassailable, and triable by a Sessions judge.

Second, Cruelty on woman by Husband or Relatives-Section 498(a), IPC:- When the woman is exposed to abuse or violence by her husband or family member. His husband's or relatives ' cruelty has been punishable by imprisonment for up to three years and 498(a) has been fined. The term cruelty is both mental and physical torture. It consists of any wilful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or health, mental or physical or harassment to coerce her or any other person by making an unlawful demand for dowries such as property or any goods.

In the case of Vijeta Gajra v. State of NCT Delhi, it was held that, within the context of section 498(a), IPC, the foster sister is not "relative" to attach liability for causing cruelty against the applicant.

In the case of Arnesh Kumar v. State of Bihar the petitioner approached the Supreme Court by way of a special request for leave to issue an anticipatory bail in which he had previously been unsuccessful. Section 498(a) of the IPC was enacted with an avowed purpose to counter the danger of husband and his close relatives harassing a woman. Supreme Court said it is a fact that section 498(a) is a cognizable and non-bailable offense that has earned it a dubious position of prestige in the law used as a weapon rather than shields by disgruntled women, the simple way to harass is to arrest the husband and his relatives under this provision.

In a quiet number of cases, old and bedridden fathers and mothers of husbands, their sisters living abroad who have never met each other will also be arrested so the Apex Court gave the following instructions before arrest under section 498(a) of the IPC:

·         Government of the State to instruct the Police not to arrest without a warrant unless they feel the need to comply with all the parameters set out in section 41 of the Cr. P.C.

·         All police officers shall provide a check list containing the sub-clauses referred to in paragraph 41(1)(b)(ii) and shall file and provide the reason and material for the arrest.

·         The magistrate, while authorizing the detention of the accused, shall examine the report provided by the police and, after recording his satisfaction, may authorize the detention.

·         The decision not to be arrested was forwarded to the magistrate within two weeks from the date of the institution of the case with a copy that the arrests were not made on the basis of the offense referred to.

·         If the person fails, at any time, to comply with the terms of the notice or refuses to identify himself, the police may arrest him for the offense referred to in the notice.

Third, Intentional Death of women-Section 302 IPC:- If the person intentionally causes the death of a woman, it is punishable under section 302 of the IPC.

Fourth, Abetment of Suicide of Woman-Section 306 IPC:- If the husband and his relatives create a situation that led to the suicide of a woman within seven years of marriage, they fall within the scope of section 306.

Code of Criminal Procedure, 1973

Sections 174 and 176 deal with investigations and investigations concerning the causes of unnatural police and magistrate deaths. The 1983 amendment makes it mandatory for the police to send the body for a post-mortem examination if the death of a woman occurred within seven years of marriage in a case of suicide or any question of doubt.

Indian Evidence Act, 1872

A new rule, section 113(b), on the burden of proof in the event of a dowry death has been established, according to which the court must conclude that a dowry death has been caused by a person who has been shown to have subjected a woman to cruelty or abuse shortly before her death.

In view of the essence of the dowry offenses that are usually committed in the privacy and secrecy of residential homes, it is not easy to obtain the clear and direct evidence required for the prosecution. Accordingly, amendment Act 43 of 1986 introduced section 113(b) in the evidence act of 1872 in order to strengthen the hands of the prosecutor by enabling a certain assumption to be raised if certain basic facts are identified and the unfortunate incident of death occurred within seven years of marriage.

Section 113(b) of the Indian Evidence Act provides that if it is determined that, shortly before the death of a woman, such a woman has been subjected to cruelty or abuse for, or in connection with, any request for the death of a woman under section 304(b) of the IPC.

In the case of State W.B. v. Orilal Jaiswal, it is argued that, given the assumption, the standards of proof and protection will remain the same.

Police and Law Enforcement

Throughout culture, the role of the police is to serve as a protection for the general masses, but in fact, by functioning as a police force, they create fear in the minds of the general public. Police are also accused of actions, behaviors and beliefs that reduce the likelihood of the legislation being applied effectively in the present context. The typical allegations made by the public to the police are: arriving too late on the scene of the crime, distorting the facts in the First Information Report, always choosing to equate dowry deaths to suicide, and carrying out the investigation in a less appropriate manner and in a more leisurely manner. The police treat violence against women as a family affair, and they are always unable to report the case themselves. Several police lacunas can be seen in several Supreme Court cases, such as Bhagwant Singh v. Commr. Police Delhi The Apex Court claims that the rate of accidental deaths is much higher than that suggested by the police. Police diaries are not adequately kept and produced before a magistrate. The investigating officer has sometimes changed, which has a serious effect on the investigation. Corruption is due to the shortcomings of the police.

The police have their own justification that the case is unsatisfactory. Next, insufficient evidence on the basis of independent witnesses. A dying declaration, which is a significant piece of evidence, often contradicts the declaration of the related individuals. Forensic evidence is also generally helpful, and it would be better if experts were brought to the victim at the sight of the occurrence. Inordinately pause in medical reports.

The Judiciary

Normally, on a number of occasions, the Supreme Court expressed sorrow and disturbing view of the deaths of young brides. In Virbhan Singh v. State of U.P, the apex Court claimed that, in view of the that deaths of the brides, these lethal crimes must be enforced whenever they have been discovered and then proven to be merciless and dissuasive. The Supreme Court is concerned about the acquittement of some of the supposed guilty parties, but the State cannot bring an appeal to the apex Court. In Samunder Singh v. State of Rajasthan the court held that anticipatory bail could not be given in cases of bride burning and dowry deaths. There was some frustration at the level of the trial itself with the conclusion by the courts that a person with a 100 percent burn was not eligible for a dying declaration. If there is any other matter stated on behalf of the victim of abuse, the matter does not emerge which creates a lacuna in the Indian legal system.

Conclusion

Dowry Death is a social curse that is a burning issue in Indian society. Organized strategy by women's welfare groups, the military, public servants and the judiciary through the use of dissuasive penalties for dowry deaths. It can be noted that the Government of India, along with the Indian judiciary, has introduced cooperative and compassionate legislation to safeguard the life rights and dignity of women and to provide more justice for victims of abuse or violence by their husbands and relatives. The reform in the education system has led to an increase in the educational status of women, and the door-to-door job service would reduce dowry deaths. However, some corrective measures need to be taken to eliminate or at least reduce this social danger of dowry death, but most importantly, it requires the public will and determination to avoid the materialistic greed of dowry demands. In cases involving a decrease in the incidence of dowry deaths, abuse or brutality, more female police workers should be held in such a way as to be eligible in situations involving unexplained deaths of women. In the interests of proper investigation and justice, the inquiry can not be carried out below the level of Assistant Commissioner. Punishment for suicide alleviation must be increased to a maximum of seven years. It will certainly be helpful to have a logical and practical approach to the above-mentioned problem.

Introduction

The prime feature of a company is that it is considered a separate legal entity, enabling it to enter into contracts with others and own properties in its name. Since a company is an artificial person who is unborn unless the process of registration is complete, it cannot enter into any agreement before incorporation. However, more often, the promoter is obligated to bring the company into legal existence and in order to ensure its successful running and   fulfill his obligations, on behalf of the prospective company, he may enter into some contract. Such contract is called 'pre-incorporated contract' or ‘promoter’s contract’. Such contracts are inevitable for the registration of companies and are therefore also recognized by The Companies Act,2013 and The Specific Relief Act,1963.

Promoter's Liability

During execution, the promoters enter into the contracts on behalf of the company. Although, the promoters act as company's agent to represent their interest, the principal is not in existence while registration. The contracts entered into by the promoters are therefore not binding on the company or third parties.  The validity and enforceability of pre-incorporation contracts lie in Section15 and Section 19 of The Specific Relief Act,1963.

Section 15(h) of The Specific Relief Act,1963 specifies that, where the pre-incorporated contracts are entered into by promoters for the purpose of the company and subject to terms of incorporation of the company, the company may ask for specific performance from the third party.This condition can only be applied if, after incorporation, the company has expressly demonstrated acceptance of such contracts, and communicated the same to the third party concerned (i.e. the other party). Under similar circumstances the other party to the contract under Section 19(e) of The Specific Relief Act,1963 may enforce specific performance against the company.

Accordingly, in order for the company to enforce the contract against the other party to contract, the members must ratify the contract followed by a communication of acceptance. The company may not receive any benefit from such contract unless the contract is accepted by the company and the promoters would be personally liable for the contracts.

In the event that the company does not accept the said contract at its meeting, such contract is binding on the promoters and the both, promoters and other party may demand specific performance against each other.

Ratification of the pre-incorporated contracts

Ratification of contracts by company is inevitable for the purpose of enforcing it. The promoters can follow either of the methods stated below for such acceptance or ratification:

1.      Accept the contracts by passing a contract acceptance resolution and the action of promoter for incorporating the company and related matters.

2.      Novation of contract: Novation of contract is defined in Scarf v Jardine 1882 7 APP CAS 345 – 198, 371, 431 435 as, ‘being a contract in existence, some new contract is substituted for it either between the same parties (for that might be) or different parties, the consideration mutually being the discharge of the old contract’.

The Company may replace the promoter from the pre-incorporation contract in the situation of Novation of Contract. Though it could be said that such a contract would not be called a pre-incorporated contract, but it should be called a post-incorporation contract; as novation of contract results in a new contract.

These acceptance acts are necessary after private company registration, as it possesses a separate legal identity to operate in its own name. This action would also be beneficial for promoters who are not personally liable for such a contract entered into for and on behalf of the company.

Validity of the Pre-incorporated Contracts

Company is an artificial entity which comes into being after the incorporation process has been completed. Unless a company is born, it cannot execute any contract or be a contracting party. Those contracts entered in name of the company are therefore not valid due to their non-existence. These contracts would be doubtful and enforceability can also be denied. Hence, the promoters are the person who are obliged to promote a company upto operational level to ensure that it is running successfully. The promoters therefore enter into various contracts necessary to promote the company

In the case of insanity, it is presumed that the accused suffered from severe mental instability when the crime was committed, which is why he could possibly not understand the gravity of the crime committed by him or her. In a nutshell, the individual at the time of commission of the offence was not aware of his actions due to the unsoundness of  mind or any other mental issue.

Insanity can be broadly categorized as “Medical Insanity” and “Legal Insanity”. An individual cannot be acquitted merely on the basis of ‘Medical Insanity’ and‘Legal Insanity’ must be proved to establish that the individual had no reasonable knowledge of the act he/she  has committed and its repercussions. The maxim ' actus non facet ream nisi men's sit rea ' implies that the physical act does not make a person guilty by itself, the mental component in the form of evil intent is equally important.

Introduction

Modern criminal law is based on the belief that individuals are morally responsible beings and are not considered the agents that cause harm. To be held criminally responsible, two essential elements must be proven, beyond reasonable doubt,

   a. The person committed the act (actus reus)

   b. In doing so, the person acted knowingly and for rational reasons (mens rea) with his or her own free will.

Section-84 , the Indian Penal Code, 1860 (IPC) sets out the legal liability standard in cases of alleged crime committed by a person with mental illness. The IPC does not have a concept of "unsoundness of mind." Nevertheless, the courts have interpreted this term primarily as being analogous to insanity. But the word ‘insanity’ itself has no accurate definition. The term ‘insanity’holds different meanings in different ways and defines varying degrees of mental disorders. Anyone who has a mental illness is not ipso facto excluded from criminal responsibility. There needs to be a distinction between legal insanity and medical insanity.    

Historical Application

Though in the last three centuries the insanity defense has taken on a legal position, it has been in practice for decades. Various tests were used to classify a person to be legally insane, such as the Wild Beast Test, The Insane Insanity Test, and the Ability test to differentiate between right and wrong. These three experiments laid the foundation for the Mc Naughten landmark statute. The Mc Naughten statute became a groundbreaking precedent to the insanity defense rules. Section 84 of the IPC (Indian Penal Code) is based exclusively on the McNaughten rules.  The said rule follows the below mentioned principle,

"Every man is to be presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."

In the landmark ruling of Surendra Mishra vs. State of Jharkhand (2011) 11 SCC 495, the Apex Court claimed that an accused seeking immunity from responsibility for an act under section 84 of the IPC has to prove legal insanity. It was also stated that the word "unsoundness of mind" is not specified in the IPC and hence viewed primarily as equivalent to insanity. In its judgment, the Apex Court found that although the accused suffered from certain mental instability both before and after the accident, it was not possible to infer from that due to the instability of mind  the appellant did not know the essence of his conduct at the time of the commission of the offense; that he was either incorrect or contrary to the statute, and therefore denied insanity defense.

Further, the Supreme Court in the case of Chellathurai vs The State of Madras C.P.O./T.C./I.S./D.O.No. 10/2009 has stated that the crucial time at which the instability or unsoundness of mind must be proved is the time when the crime is actually being committed and burden of proof of the same lies on the appellant to claim the defense. Under Section 84 IPC, mere abnormality of a mind or partial illusion, irresistible compulsion or compulsive behavior offers no defense.

The main purpose of the provision is fulfilled by psychiatrists who assist the court in determining whether certain mental illness or instability would affect an individual’s ability to decide what he is doing is either right or wrong or is contrary to the law.

Recent scenario and its criticism

In the recent scenario, the 2012 Nirbhaya gang rape and murder case i.e. Mukesh & Anr v State of NCT of Delhi S.L.P. (Criminal) Nos. 3119-3120 of 2014  which is still to be decided even though several death warrants were initiated but due to some or other reasons the execution order gets delayed. The counsel for the accused Vinay Sharma contented that Vinay has been continuously tortured in jail and due to that he is getting mentally unstable. Although the contention was denied by the court.

The defense by insanity is heavily criticized because of the fact that under this defense the court does not need to check whether the offence has been committed or not but has to determine the mens rea of the accused which is very complicated. Determining the mentality of the accused at the commission of the crime is a very complicated as one is judged by his acts and it is very difficult to establish someone’s intention on as the sole basis for defense to be granted.

In the case of insanity, it is presumed that the accused suffered from severe mental instability when the crime was committed, which is why he could possibly not understand the gravity of the crime committed by him or her. In a nutshell, the individual at the time of commission of the offence was not aware of his actions due to the unsoundness of  mind or any other mental issue.

Insanity can be broadly categorized as “Medical Insanity” and “Legal Insanity”. An individual cannot be acquitted merely on the basis of ‘Medical Insanity’ and‘Legal Insanity’ must be proved to establish that the individual had no reasonable knowledge of the act he/she  has committed and its repercussions. The maxim ' actus non facet ream nisi men's sit rea ' implies that the physical act does not make a person guilty by itself, the mental component in the form of evil intent is equally important.

Introduction

Modern criminal law is based on the belief that individuals are morally responsible beings and are not considered the agents that cause harm. To be held criminally responsible, two essential elements must be proven, beyond reasonable doubt,

   a. The person committed the act (actus reus)

   b. In doing so, the person acted knowingly and for rational reasons (mens rea) with his or her own free will.

Section-84 , the Indian Penal Code, 1860 (IPC) sets out the legal liability standard in cases of alleged crime committed by a person with mental illness. The IPC does not have a concept of "unsoundness of mind." Nevertheless, the courts have interpreted this term primarily as being analogous to insanity. But the word ‘insanity’ itself has no accurate definition. The term ‘insanity’holds different meanings in different ways and defines varying degrees of mental disorders. Anyone who has a mental illness is not ipso facto excluded from criminal responsibility. There needs to be a distinction between legal insanity and medical insanity.    

Historical Application

Though in the last three centuries the insanity defense has taken on a legal position, it has been in practice for decades. Various tests were used to classify a person to be legally insane, such as the Wild Beast Test, The Insane Insanity Test, and the Ability test to differentiate between right and wrong. These three experiments laid the foundation for the Mc Naughten landmark statute. The Mc Naughten statute became a groundbreaking precedent to the insanity defense rules. Section 84 of the IPC (Indian Penal Code) is based exclusively on the McNaughten rules.  The said rule follows the below mentioned principle,

"Every man is to be presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."

In the landmark ruling of Surendra Mishra vs. State of Jharkhand (2011) 11 SCC 495, the Apex Court claimed that an accused seeking immunity from responsibility for an act under section 84 of the IPC has to prove legal insanity. It was also stated that the word "unsoundness of mind" is not specified in the IPC and hence viewed primarily as equivalent to insanity. In its judgment, the Apex Court found that although the accused suffered from certain mental instability both before and after the accident, it was not possible to infer from that due to the instability of mind  the appellant did not know the essence of his conduct at the time of the commission of the offense; that he was either incorrect or contrary to the statute, and therefore denied insanity defense.

Further, the Supreme Court in the case of Chellathurai vs The State of Madras C.P.O./T.C./I.S./D.O.No. 10/2009 has stated that the crucial time at which the instability or unsoundness of mind must be proved is the time when the crime is actually being committed and burden of proof of the same lies on the appellant to claim the defense. Under Section 84 IPC, mere abnormality of a mind or partial illusion, irresistible compulsion or compulsive behavior offers no defense.

The main purpose of the provision is fulfilled by psychiatrists who assist the court in determining whether certain mental illness or instability would affect an individual’s ability to decide what he is doing is either right or wrong or is contrary to the law.

Recent scenario and its criticism

In the recent scenario, the 2012 Nirbhaya gang rape and murder case i.e. Mukesh & Anr v State of NCT of Delhi S.L.P. (Criminal) Nos. 3119-3120 of 2014  which is still to be decided even though several death warrants were initiated but due to some or other reasons the execution order gets delayed. The counsel for the accused Vinay Sharma contented that Vinay has been continuously tortured in jail and due to that he is getting mentally unstable. Although the contention was denied by the court.

The defense by insanity is heavily criticized because of the fact that under this defense the court does not need to check whether the offence has been committed or not but has to determine the mens rea of the accused which is very complicated. Determining the mentality of the accused at the commission of the crime is a very complicated as one is judged by his acts and it is very difficult to establish someone’s intention on as the sole basis for defense to be granted.

Introduction

There are certain cases where the relationship between a landlord and tenant takes a different turn and the landlord has every determinant from the rented property. The rent laws in India, however, tend to favor tenants and secure their landlords' privilege. The guide addresses the legal remedies available to landlords for lawfully evicting a tenant under The Haryana Urban (Control of Rent and Eviction) Act, 1973(hereinafter called “The Act”).

Grounds of Eviction

Section -13(2)(i) Arrears of rent

The tenant may be ejected from the premises where the rent due to him has not been paid or tendered by him within fifteen days of the expiry of the time fixed in the tenancy agreement with his landlord or in the absence of any such agreement by the last day of the month following that for which the rent is due.

Supreme court in the case, Ladu Ram v. Ganesh Lal, 1999(2) RCR 220 (SC) states that the landlord must allege  and prove three requirements, namely:

1.       the tenant is in arrears of rent

2.      such arrears of rent have been due for more than six months

3.       the tenant has failed to pay the landlord such arrears of rent.

With the exception of these requirements, there is no other legal requirement that a landlord should plead and prove to obtain an eviction decree.

Section-13(2)(ii)(a) Sub-letting

Where after the commencement of this Act, the tenant has without the written consent of the landlord, transferred his right under the lease or sublets the entire building or rented land or any portion thereof, he shall be liable for ejection.

The initial onus of proving subletting lies with the landlord, but when a third person is in possession, it must not be inferred that this is a subletting case.

In the case of Associated Hotels of India Ltd., Delhi v. S.B.Sardar Ranjit Singh AIR 1968 SC 933, the Supreme Court held that when eviction on the ground of subletting is sought, it is the landlord's responsibility to prove subletting. Therefore, it was held that if the landlord prima facie demonstrates that the third party is solely in possession of the premises for valuable consideration, it would then be for the tenant to rebut the evidence.

Section-13(2)(ii)(b) Change of user

On analyzing this clause, it seems plain that the pride of place for its interpretation must first obviously go to "used the building or rented land for a purpose other than that for which it was leased.”

In Mehta Baldev Dutt v. Puran Singh (1980) 1 Ren CR 130, it was held that where premises were originally leased for a specific purpose, any subsequent use thereof that is part of, or ancillary to, the aforementioned purpose would not amount to a user change within the meaning of S. 13 (2) (ii) (b) of the act.

The Hon'ble Supreme Court in Bharat Lal Baranwal v. Virendra Kumar Aggarwal 2003(1) Rent Control Reporter 178 said that when the premises were let out for selling copies and books, the installation of printing press amounted to change of user.

Section- 13(2)(iii) Material impairment

Material impairment  are intended to change the substantial nature of the building's form and character.

"A landlord, in order to be entitled to the grant of permission to terminate the tenancy, is required not only to prove an act of waste on the part of the tenant but also to prove that the said act is likely to impair materially the value or the utility of the house," Smt. Savitri Devi v. U.S. Bajpai AIR 1956 Nagpur 60 and Charan Singh v. Shrimati Ananthi & others (1966) 6 PLR 780 .

"Mere construction of a false roof which is only wooden or the setting of a wooden stair or making of a few holes in the roof for letting out the smoke from the hotel, cannot be held to be such material alterations which may result in changing the character or nature of the premises. " Shri Anup Chand & others v. Shri Trilok Singh (1977) I RCJ 752.

Section- 13(2)(iv) Nuisance

In the case Dr.Lakhi Ram v. Girdhari Lal and another, 2006(1) L.A.R. 417 (P&H), Shop was initially given on rent for running a clinic. Petitioner set up a PCO / STD booth on the road, many customers started to visit the same booth, which has resulted into causing nuisance to the landlords. Hence tenant is liable to eviction.

Section- 13(2)(v) Cease to occupy

In the case Ram Lok v. Tarloki Nath, 2000(2) PLR 713, the premises of the suit were locked up for a year and two months. The occupant had not only surrendered his sales tax number, which is a clear indication that he does not do business. To crown it all, the tenant, who claims to be doing business at the suit premises, has not produced any account book document to show that any business was actually transacted from the suit premises. These findings clearly show that the petitioner had been proven not to be carrying on any business in the suit property and, in fact, had ceased to occupy the premises for the relevant period. Eviction order is upheld.

The Sexual Harassment Act, 2013 Cannot be a weapon for claims of misconduct or non-existent allegations: Madras High Court

Case:

Union of India v. Reema Srinivasan Iyengar.

Brief facts:

In the present case, the plaintiff Mr. V.Natarajan was deputy registrar of Trade Mark and GI, in Chennai and the respondent is Mrs. Rema Srinivasan Iyengar, assistant registrar, whom the court referred to in the judgment as the claimant.

On  02. 12. 2013, the respondent lodged a complaint against the petitioner with the Registrar and Controller General of Trade Marks and GI and Patents and Design, complaining about the petitioner's high-hardness and arrogant behavior that hurt her self-respect. The Registrar and Controller General had formed an independent commission on workplace sexual harassment.

On 30.06.2015, the complainant preferred another complaint in which she narrated many instances of the petitioner's rude behaviour, and she mentioned the word "sexual harassment" in the complaint. She wrote the letter to the Tamil Nadu State Commission of Women, expressing her apprehension that the internal committee will not be able to render justice to her, since all those who are part of the committee are subordinate to the petitioner. Hence, her petition should be referred to the local comittee.

Accordingly, the Local Committee was appointed by the Social Welfare Department (Tamil Nadu Government). Meanwhile the complainant's complaints to the internal committee, are posed by taking into account. On 22.12.2015 Smt. Sunita Yadav Director, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry has been appointed as chairperson of the vide letter of the internal committee.

On 30. 12. 2015, the complainant's letter had been forwarded to the Trade Marks Controller General to expedite the inquiry. According to a letter of 25.02.2016 intimating the prosecution process, it was found that the case was made pursuant to section 3(2)(iii)(iv)(v) of the Sexual Harassment of Women at Workplace Act, 2013.

On 28.04.2016, the complainant responded to the Board of District Social Welfare that two simultaneous trials could not be viewed as legally valid. The plaintiff even objected to the new internal committee according to the letter dated 16.11.2016. Because according to the complainant, even if the chairperson is changed, all other members remain the same. So she approached the Central Administrative Tribunal, Madras Bench to declare the internal committee's constitution void. The CAT, madras bench, held that a preliminary inquiry had already been conducted by the Local Committee and that the internal committee established by the employer is against the law because the petitioner himself is head of the department and therefore the complaint against the petitioner should be inquired by the local committee. The complainant who has been dismissed by the Central Administrative Tribunal, Madras Bench, preferred the appeal. The petitioner thus filed a petition in writing against CAT's order, Madras Bench.

Issues:

1)      Whether the preliminary investigation can be carried out in conjunction by the ICC and the local committee?

2)      Whether the findings of the Local Committee which is ex parte need to be complied with?

3)      Whether the original complaint in December 2013 prompted the establishment of a committee to investigate women's sexual harassment in the workplace?

4)      In the strictest sense, whether the person charged was an employer?

Arguments of the petitioner:

·         The plaintiff argued that the defendant was an assistant registrar in a quasi-judicial role and that it was not possible to intervene with her decision making. The complainant was the head of the Chennai office but was subordinate to his New Delhi Superiors and therefore not an employer, and that both the first and second grievances were sent to the New Delhi Registrar and Controller General.

·         The petitioner also claimed that the Registrar and Controller General should not have formed an Internal Committee to investigate sexual harassment complaints in the first place for a generic case with no accusation of sexual harassment in it. The Superiors in the Department could have remedied the complaint.

·         The plaintiff further argued that the complainant's complaint concerning the members of the Internal Committee had been acknowledged by the employer and that a senior lady officer had been made the chairperson Which only demonstrates the employer's bonafide motive and that, instead of respecting the superior officer, the claimant went ahead with an unwarranted petition to the Local Committee. Consequently it should be set aside.

Arguments of the complainant:

·         The complainant's learned counsel called the court's attention to section 2(g) of the 2013 Employer's Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. It was the complainant's contention that since the petitioner was Department Office Administrative Head at Chennai, he must be considered as an employer under the Act.

·         It was further argued that Section 6 of the Act grants the local committee jurisdiction. Local committee is thus the sole authority to attempt this case.

Judgment:

The Court held that the enquiry should not be retrospective under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("The Act"), and the accused must be given the opportunity to defend themselves.

The Madras High court further noted :

“At the same time, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also brought in two provisions in order not to deter women from filing complaints. One was that their inability to prove a complaint will not render it false. Secondly, the malicious intent has to be specifically established before disciplinary action is recommended against the complainant.”

The court held the Local Committee's findings unconstitutional, and ruled that the complainant was not the employer. It further mentioned that "This letter fits in with the concept of a complaint of sexual harassment and contains all the ingredients necessary to evaluate an offense

 “The Act”. However, it lacks details of the alleged incidents.”

Section 3(2) of the Act was examined and held to be “a solitary allegation of intemperate language against a female employee does not constitute an offense under the Act”.

It further commented that: “The complainant, it appears, made a futile attempt to settle her personal score with the petitioner. Every office has to maintain certain decorum and women employees cannot be allowed to go scot-free without completing their assignments. The Administrative Head or the Chief has every right to extract work and he or she has his or her own discretion and prerogatives. If a woman employee is discriminated against due to her inefficiency or for any other official reasons, the recourse for her is not the one taken by this complainant.”

It is not appropriate for women to exploit the Act to threaten someone with false or non-existent claims.

Aligarh Development Authority Vs. Megh Singh & Ors

FACTS

The appealing party Aligarh Development Authority took steps for obtaining a land which has been acquired by the respondent No.1 according to Notification gave under Section 4(1) of the Land Acquisition Act, 1894  on 09.08.2004. At the same time emergency statement was also invoked under the arrangements of Section 17 followed by Section 6 revelation dated 03.08.2005. As per the appealing party ownership of the land was taken and some portion of the pay was stored with the Special Land Acquisition Officer. The respondent No.1 challenged the acquisition on different grounds and the High Court of Judicature at Allahabad by the upbraided Judgment dated 21.10.2010 permitted the writ request and subdued the Notification dated 09.08.2004 and the assertion dated 03.08.2005. Among different reasons, the main purpose behind taking such a view is, that after invoking emergency statement, no award was passed considerably after the expiry of four years.

Thus aggrieved, the Requisitioning Authority - Aligarh Development Authority is before this Court. When the matter was pending before this Court, the land owner non-applicant filed I.A.No.3/2015 contending that respondent No.1 is entitled to a declaration that acquisition proceedings have lapsed in view of the operation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (For short '2013 Act'), since neither compensation has been paid to the owner nor possession has been taken by the Land Acquisition Collector. The Appellant Authority has filed reply to the affidavit that the remuneration has been kept with the Land Acquisition Collector. Most definitely, it is expressed in the affidavit that the land has just been taken under position and a 'full - fledged and finish private settlement has been created'. It is anyway a conceded position that no Award either under the 1894 Act or under the 2013 Act has been passed in regard of the place where there is respondent No.1

SECTION 24 OF LAND ACQUISITION ACT 2013 :

Section 24 of the 2013 Act envisages mainly two situations;

i)  where the land acquisition proceedings had already been initiated under the 1894 Act but no award was passed till the date the new Act came into force.

(ii)  where the Award has been passed but neither the owner has been dispossessed nor has he been paid the compensation.

Under the first, where the award had not been passed, the acquisition proceedings could continue; but the compensation will have to be determined under the scheme of 2013 Act. Under the second category, there is a statutory lapse of the proceedings. There is also an incidental third situation, where award under the 1894 Act had already been passed prior to coming into force of the 2013 Act, but payment is yet to be made and possession is yet to be taken. In that case, the further proceedings after the award could continue under the old Act of 1894; but if either payment or possession has not taken effect in five years prior to the 2013 Act, then proceedings will lapse.

JUDGEMENT

For the above situation, since as a matter of fact the compensation has not been passed, there emerges no question of lapse. The land obtaining procedures would proceed however with the rider that the compensation should be passed and pay decided under the arrangements of 2013 Act. The appellant and the Acquisitioning Authority are coordinated to finish the acquisition procedures by passing compensation under the provisions of the 2013 Act. This will be done within a period half year and unnecessary likewise to state that the whole award due to respondent No.1 would be determined under the provision 2013 Act and the same will either be saved with the Land Acquisition Collector or dispensed to the respondent No.1 within one month from there on.