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The Daksha Fellowship is India’s first law, policy and business fellowship program for young and mid-career lawyers, public policy professionals and other graduates with a background in law.

The Fellowship is a one year, residential program with a contemporary curriculum formulated by internationally renowned faculty in collaboration with leading legal practitioners and industry experience.

By combining academic rigor with top-notch curriculum design, industry exposure and global engagement, the Fellowship will enable young lawyers to hone their abilities and skills to succeed in an increasingly digital world.

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Applications Open: Monday, 2 March 2020

Round 1 closes: Monday, 20 April 2020

Round 2 closes: Monday, 25 May 2020

Round 3 closes: Monday, 29 June 2020

Round 4 closes :Monday, 27 July 2020

Pre-term courses:17 August 2020

Program starts :Monday, 28 September 2020

Candidates selected for the inaugural cohort of Daksha Fellowship shall
receive full tuition waivers

APPLICATION PROCESS

All applicants are required to submit an online application through the Daksha Fellowship portal.

The program will follow a rolling admissions cycle. However, applicants are encouraged to submit the form in the early rounds to increase their chances of selection and financial aid.

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Tuition (INR): 6.0 Lakhs

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Total fees (INR): 7.6 Lakhs

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Admissions Office: SSPDL Towers 4th Floor, Beta Block, Navalur Old Mahabalipuram Road, Chennai, Tamil Nadu, India.

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About the Organisation

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About the Global Student Interactive session

Join the Global Student Interactive session with Sakib Imam, a final year law student at Nottingham Law School, UK, and Aprajita Bhardwaj, the founder of Lawschole on July 10, 2020, at 4 PM. The session aims to bring the students from around the globe to interact on global opportunities in the legal world.

ABOUT SAKIB: Final year Law student at Nottingham Trent University (or Nottingham Law School), Witness Service – Nottingham Magistrate Court, Student Advisor at Nottingham Law School Legal Advice Centre, Volunteer Advocate at FRU (Free Representation Unit), Access to Barrister Awards (2020) by The honorable society of Middle Temple.

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The last date for registration is 9th July 2020.

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Important Dates

§ Deadline for registration: 09th July 2020

§ Date of the session: 10th July 2020, 4 PM

§ Issuance of e-certificate: 20th July 2020

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This analysis is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This analysis aims to provide all the necessary details about the case in brief.

INTRODUCTION

This case is basically about a company under whose name the plaintiff used to deliver kerosene oil. It was contented that the oil was impure but it could not be proved and the plaintiff again filled a suit in order to get compensation.

Case Number

Appeal 42 of 1940

Equivalent Citation

AIR 1926 Pat. 258, 12 Bom. 490

Bench

Hon’ble Justice Fazl Ali and Hon’ble Justice Verma

Decided On

26^th March, 1943

Relevant Act/ Section

Bihar and Orissa Municipal Act- Section 12,24,25,26 & 287,

Indian Companies Act

Facts of the Case

This is an appeal by the plaintiff against the decision of the trial court whereby the suit of the plaintiff was dismissed. Plaintiff was manufacturing oil and rice for the last 14 years and selling under the trademark “R. N. Bishnachandra”. The plaintiff despatched pure mustard oil in the cylindrical van to Purulia. On 3rd May, 1938, about 1000 canisters were filled with oil and delivered to customers as per the agreement. On 4th May, 1938, when the 100 tins were delivered to the customer/the defendant, he filed a case u/s 287 of the Municipal Act alleging that the oil has been contaminated with kerosene oil and had a bad odour. The case of the plaintiff was that allegations of the defendant were false and frivolous and he contended that the oil was pure and meant for human consumption. Sanitary inspector took samples of oil and after checking of oil by the Chemical analyst oil was found to be genuine. The plaintiff alleged that due to this conduct of the defendant, he suffered considerable losses. Therefore, he filed a suit for damages. The defendant put his defence that the oil was impure and the plaintiff has put it in a container containing kerosene oil. Defendant argued that the plaintiff has not suffered any loss and mere on the fact that the Chemical analyst did not find any impurity in the oil, it did not give any right to the plaintiff to file suit for damages against him.

Issues Before the Court

1. Whether the action of the municipality was just and reasonable in seizure of mustard oil?

2. Whether the plaintiff company suffer loss in the business and reputation due to arbitrary, malafide and malicious action of the defendants?

3. Whether the plaintiff is entitled to damages if so how much?

4. What amount the plaintiff is entitled to get on account of mustard oil and canisters?

Judgment

The High Court heard the arguments submitted on behalf of both the parties and after considering the facts and circumstances, it came to the conclusion that the plaintiff company is entitled to the difference between the actual price and the price realised at the auction sale and therefore, the High Court allowed the appeal granting damages to the plaintiff to the tune of Rs. 2012/- with interest at the rate of 6% per annum from this date till the realisation of the amount. The High Court in its judgment discussed the case of “Rup Lal Singh vs. Secretary of the State for India”, “Dixon vs. The Metropolitan Board of Works”, “Sutton vs. Clark” and “Nagar Valab Narsi vs. Municipality of Dhandhuka”

Ration of Case

Ratio decidendi of a case is whether the facts the judge has determined to be material facts of the case, plus the judge’s decision based on those facts of the material facts that the judge creates law.

Thus, Ratio Decidendi = Material Facts + Decision

In this case, the High Court kept in mind the material facts that

1) The plaintiff despatched the pure mustard oil to the defendants which were tested and found to be genuine by the Chemical Analyst.

2) The plaintiff has suffered a considerable loss due to the false and frivolous allegations of the defendants that the mustard oil was impure and bad in odour as it was mixed with kerosene oil.

3) The plaintiff is entitled to the difference between the actual price and price realised at the auction sale of the mustard oil.

Decision of Court

High Court allowed the appeal of the plaintiff. It held that the plaintiff company is entitled to the difference between the actual price and the price realised at the auction sale and therefore, the High Court allowed the appeal granting damages to the plaintiff to the tune of Rs. 2012/- with interest at the rate of 6% per annum from this date till the realisation of the amount.

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This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi.

This article focuses on the meaning of maxim “Ubi jus ibi remedium” and its related case laws.

INTRODUCTION

Does everyone get the remedy?

No, everyone does not get remedy. The person gets the remedy when his rights are violated, the victim will have an equitable remedy under law.

Meaning

This concept is based on the Latin maxim “Ubi jus ibi remedium” which means ‘for every wrong law provides a remedy.’ This maxim also states that the person whose right is being infringed has a right to enforce the infringed right through any action before a court.

According to the law dictionary, it is defined as “where there is a right, there is a remedy”.

Maxim consists of two words jus and remedium.

Jus signifies ”the legal authority to do or to demand something’ and remedium may be defined to be ‘the right of action, or means given by law for the recovery or assertion of a right.’

Now, the question arises that does the person get a remedy when all rights are infringed?

No, the person does not get a remedy, when all his rights are infringed.

Yes, this is true that this maxim contemplates that where there is a right, there is a remedy. But the maxim does not mean, as it is sometimes supposed, that there is a legal remedy for moral or political wrong. The maxim means that legal wrong and legal remedy are co-relative terms; for every legal wrong, there is a legal remedy.

So, it is clear from the above discussion that this maxim has some exceptions.

Let’s discuss the exceptions of this maxim:

If there is a breach of moral rights only
If the right and remedy both were within the jurisdiction of the Common law Courts.
Where due to his own negligence party either destroyed or allowed to be destroyed, the evidence in his own favour or waived his right to an equitable remedy.
This maxim does not apply in case of public nuisance unless and until a plaintiff shows that he suffered more injury than other members or people in society.

Applicability: Maxim

This maxim applicable in such a situation:

The law of torts

Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract, or, the breach of a trust, or other merely equitable obligation.

Section 9, Code of Civil Procedure,1908

It entitles a civil court to entertain all kinds of suits unless they are prohibited.

Specific Relief Act

It provides for equitable remedies like specific performance of contract, injunction and declaratory suits.

Let’s discuss what ingredients are required so that the maxim ‘Ubi jus ibi remedium” prevails and the person gets the remedy.

Essential: Maxim

It can be applied only where the right exists and there must be the existence of legal right.
This maxim can be used only when sufficient relief has not been provided by the Court to the person who sustained the injury.
There must be infringement of legal rights.

Case Laws

Leo Feist v. Young, 1943

In this case, The Circuit Court of Appeals of the United States of America, observed that “it is elementary that there is no wrong without a remedy.”

Maretti v Williams, 1930

FACTS: the defendant was the owner of the bank, and the plaintiff had an account in the same bank. Plaintiff had sufficient funds in his account and when plaintiff went to the bank to honor the cheque, the defendant refused to honor cheque to him.

HELD: The court held that the defendant is liable for the loss caused to the plaintiff. The court applied the maxim “Ubi jus ibi remedium” as the plaintiff’s legal right was violated and the defendant were liable to pay damages.

Ashby v White, 1703

FACTS: the defendant, a reputed officer in a parliamentary election. The plaintiff was a qualified voter and he was detained from giving a vote in a parliamentary election by the defendant. Although, the plaintiff did not suffer any loss by his refusal because the candidate to whom he wanted to vote had won the election.

CONTENTION: the plaintiff contended that he was detained from giving a vote and his right to vote was infringed and also claimed a certain amount of compensation for the damage to him.

HELD: The court held that no damage or injury was caused as the candidate to whom the plaintiff wanted to vote had won the election but his right to vote was violated. The court applied the maxim “Übi jus ibi remedium”. Holt C.J. said,” every injury imports a damage though it does not cost the party one farthing”. So, the defendant was held liable to pay the damages to the plaintiff.

Bhim Singh v State of Jammu and Kashmir, AIR 1986 SC 494

FACTS: the petitioner Bhim Singh, MLA of Jammu and Kashmir Assembly was illegally detained by the police while he was going to attend the Assembly Session and was thus prevented from exercising his legal right to attend the assembly. He was not presented before the magistrate in time and had a legal right to attend the meeting.

CONTENTION: The plaintiff contended that he was illegally detained by the police and his fundamental right under article 21, Constitution of India was also violated. He claimed a certain amount of compensation for the damage awarded to him.

HELD: The Apex Court held that the plaintiff’s fundamental right under article 21, was violated and he had a legal right to attend the session but he was illegally detained by police. The court held that defendants were liable to pay the amount of Rs. 50,000 as compensation to the petitioner for the infringement of his fundamental rights.

CONCLUSION

“Ubi jus ibi remedium” is Latin maxim means ‘where there is right, there is remedy’. But it is clear from the above discussion, that the person only gets the remedy when his legal right has been infringed. If there is infringement of a person’s legal right, then the defendant held liable to pay the amount for the damage as compensation. Justice Pallock said that right and wrong are contrary to each other. It means right actions are those which are prescribed by moral rules, wrong action are those which are not prescribed by moral rules or which are prohibited by law.

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This article is written by Akshaya V, a student of CMR University, School of Law and Legal Studies, Bangalore.

Synopsis

A contract between two parties determines rights and duties. Where one of them has duties and the other has rights. Without acting beyond the scope of the contract, the parties shall carry out their act. However, the law gives latitude to those contracts which may not be performed as per its terms or may lead to a breach of the same due to a variety of reasons. This article elucidates all the necessary remedies covered under the Indian Contract Act, 1872.

INTRODUCTION

Commercial contracts are entered into on a daily basis. Such contracts intend to bind the parties legally. Contract laws aim to provide an effective legal framework to regulate contractual rights, obligations and resolving of disputes if any. As per Section 2(h) of the Indian Contract Act 1872, a contract is defined as an agreement enforceable by law. It is an agreement between two or more persons. Persons have a wider meaning and include individuals, business organisations and government agencies.

Contracting parties agree to do or to refrain from doing a specific act in return for a consideration which is of value. Contracts are usually written agreements and in some cases, it can be ascertained by the conduct of parties, which are termed as implied contracts provided it is valid and enforceable by law. Void contracts are not recognised by law. Section 10 of the Indian Contract Act, 1872 sets out the essentials that have to be fulfilled to form a valid contract.

Breach of Contract

Where one party refuses to perform his promise wholly, the promise is said to be breached under a contract. Section 39 of the Indian Contract Act 1872, envisages when a party to a contract has refused to perform or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance. The elaboration of this section is that one of the parties has refused by whatever reason, the promise made to him or it may so happen that due to disability which may be pivotal to performance and shall be such in its entirety(wholly). The promisee is not in a position to rescind the contract in a case where the other party has expressed his will to continue with the contract at a later date.

Where a party performing a contract does not do so to the standard essential by the contract or within the set time frame, that party is said to have committed a breach of contract. A contract, being the origin of a correlative set of rights and obligations for the parties would be of no value, if there were no remedies to enforce the rights arising thereunder. The party on whom the breach is committed is the injured or aggrieved party and the party committing the breach is the guilty party. The burden of proof lies on the plaintiff resulted from a breach of contract by the defendant. The loss caused to the plaintiff shall not be remote as he cannot claim remedy for the same. Losses, to be recoverable, must have been within the reasonable contemplation of the parties. There are certain remedies that a plaintiff may resort to sustain injuries suffered by him. The remedies are:

1. Suit for damages

2. Suit for quantum meruit

3. Suit for specific performance

4. Suit for injunction

1. Suit for Damages

This is the most commonly sought remedy in any civil case. Damages are a way of awarding compensation to the plaintiff and widely recognized under the Indian Contract Act, 1872. The quantum of damages is determined by the magnitude of loss caused by the breach. Damages are meant to reimburse the injured party for any magnitudes of the breach of contract. The primary principle is to put the injured party economically as near as possible, into the position he would have been in had the promise been fulfilled. This is the closest possible remedy that can be claimed. It is the responsibility of every plaintiff to alleviate his loss, i.e. to do his best not to intensify the amount of damage done. Punitive’ or ‘exemplary’ damages have no place in the law of contract. Contractual damages shall not be retributive in nature no matter however contemptible the defendant’s conduct may be. There are three ground rules for claiming damages:

a) The plaintiff cannot recover for losses which the plaintiff could have evaded by taking reasonable steps; and

b) The plaintiff cannot recover for any loss he has actually avoided, despite taking more steps than were necessary in compliance with the above rule.

It is vital to note that the damages shall occur within the scope of contract and within the observation of the parties. This rule was held under the case Hadley v Baxendale.

a) Damages which may justly and rationally be considered as arising naturally from the breach;

b) Such damages should have been within the contemplation of parties and the contract to which they are bound by.

Hadley vs. Baxendale

A prominent case in placing down the rule on the subject of the measure of damages. Where contracting parties have made a contract which one of them has breached, the damage ought to be received in respect of such a breach should be such as may reasonably be considered either arising naturally, that is to say, according to the usual course of things.

Facts: The crankshaft broke in the Claimant’s mill. He engaged the services of the Defendant to deliver the crankshaft to the place where it was to be repaired and to subsequently return it after it had been repaired. Due to neglect of the Defendant, the crankshaft was returned 7 days late. The Claimant was unable to use the mill during this time and claimed for loss of profit. The Defendant argued that he was unaware that the mill would have to be closed during the delay and therefore the loss of profit was too remote.

Held: The court held that claimant was entitled only to ordinary damages and defendant was not liable for the loss of profits because the only information given by Claimant to Defendant was that the article to be carried was the broken shaft of a mill and it was not made known to them that the delay would result in loss of profits.

Position of Damages in India

Under Indian Contract Act, 1872, in every case of identifying the amount of damages in the contract, the court will work out the total losses grieved by the plaintiff and award that as damages subject to the maximum of the stated amount. Section 73 of the Contract Act provides for the right to damages arising out of a breach of contract or an obligation resembling that created by contract. There are four kinds of damages that are awarded –

General or Ordinary Damages: Such losses can be seen as arising out of the usual course of things and can be directly linked to the breach so made. Such damages are unavoidable and paid in the event of breach.

Special Damages: At the time of making a contract, parties to the contract agree to give scope for damages that arise out of special circumstances. If the other party still proceeds to make the contract, it would indicate that he has approved to be accountable for the special losses that may be caused.

Exemplary or Vindictive Damages: In England, the court in Addis v. Gramophone Co. stated that in three cases mental suffering and pain of the aggrieved party can also be taken into account:

i. Unjustified dishonor of a cheque

ii. Breach of promise of marriage, and

iii. Failure of real estate vendors to make titles.

In such cases of mental sufferings, the court awards monetary compensation for vexation caused to the aggrieved party.

Nominal damages: If the breach of contract causes no loss to the aggrieved party, no damages shall be awarded to him. However, in order to record the fact of breach by the guilty party, the courts may award nominal or token damages, with a nominal fine.

2. Suit for Specific Performance

It is a remedy captivating performance. It is granted at the discretion of the court where the court can administer the application of the contract. The Courts direct the defendant to perform the contract, and in accordance with its terms. In case of personal services, the Court cannot supervise such performance and hence specific performance decree is not awarded to the contract of personal service.

It has traditionally been said that specific performance will not normally be granted where damages provide sufficient relief. Nevertheless, in enabling its decision on specific performance, the court will be disposed to refuse the remedy if, in the particular case before it, damages will fully compensate and will put the claimant in as beneficial a position as if the contract had been specifically performed.

3. Suit for Injunction

Injunction is the discretionary remedy of the Court that is imposed to restrain a person from doing a thing which is not supposed to do under the law. Injunctions are either prohibitory or mandatory. A prohibitory sanction of injunction may be granted to restrain from carrying out negative stipulation in a contract. A mandatory injunction compels the positive performance of an act and may be used to restore the situation to what it was before the breach of contract.

Anton Piller Order – It is an ex-parte decision of injunction whereby the plaintiff is allowed to enter the defendant’s premises to obtain evidence, whether concealed or not and may compel the defendant to answer some questions.

4. Suit for Quantum Meriut

Quantum meruit means “as much as he has earned.” In many cases, it denotes a claim for a reasonable sum in respect of services or goods delivered to the defendant. The plaintiff may have accomplished a part of his duty before the breach of contract for which he is supposed to be paid for. The claimant must prove the defendant expressly or impliedly freely accepted the services or goods in question. The plaintiff may claim for quantum meruit in the following cases –

where the contract is made is a quasi-contract and especially when the price of goods is not agreed upon.
Have an agreement to pay an equitable sum for the services or goods supplied.
Have agreed on the scope of work under the original contract and the work carried out falls outside that scope.

CONCLUSION

It is therefore inferred that whatever remedies are available, it has enriched the rights of the aggrieved party with respect to breach of contract and the party is positioned in the same way as if he has not been affected by such breach. Mostly, breach of contract is caused by the terms which are not clear in the contract. Therefore, it has to be ensured that the parties have clearly set out the rules and regulations so it does not result in the breach of contract.

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This article has been written by Kritika Narwariya, a first year student of BALLB of THE ICFAI UNIVERSITY, DEHRADUN. In this article, the author has done the wide study of strict and absolute liability in light of no fault liability in tort law.

INTRODUCTION

There are situation when a person may be liable for some harm even though he is not negligent in causing the same, or there is no intension to cause the harm, or sometimes may be he have made some positive efforts to avert the same. This liability is called as “no fault” liability.

No fault liability was primarily noted in Ryland v. Fletcher case, in which the house of lord declared “strict liability” as the no fault liability. It was noted in the case that the defendant could be held liable even though he had not done any fault but caused inconvenience to others. Principal of no-fault liability is evolved by Justice Blackburn in strict liability in this case.

Further in the case M.C. Mehta v. union of India, Supreme Court laid down the new rule of “absolute liability” in the preference to the rule of strict liability. Absolute liability is more rigorous form of the strict liability which made no option for defendant to escape the liability. Hence, it is also termed as “no fault” liability.

Strict Liability

Strict liability is a liability in which a person is legally responsible for the consequence of the act even in the absence of negligence or intention on the part of defendant.

It has following elements:

1. Dangerous Thing

SOME dangerous thing must have been brought by a person on his land. The dangerous thing could be anything which may cause mischief if it escaped from the defendant’s land. It includes polluted water supply, explosions, flag-pole, noxious fumes, vibrations, trees, sewage, rusty wires etc.

2. Escape

The thing brought to the land by the defendant must escape from the land of the defendant. This means that it is out of the control and occupation of the defendant.

If the dangerous thing does not escape from the defendant’s land then the defendant would not be responsible under strict liability.

The thing which escape must caused mischief to the plaintiff.

3. Non-Natural Use of Land

Non-natural use of land means when the dangerous thing has special use of land brings with it increased danger to others. However, if there is a natural use of land then the defendant could not be made liable.

However, there are some exceptions by which the defendant could avoid liability even though the act comes under strict liability.

Defenses of strict liability are as follows:

1. Plaintiff’s own Fault

When the plaintiff suffered damage by the interruption and the unusual sensitiveness of its own, then the defendant is not answerable for the same.

2. Act of God or Vis Major

When dangerous thins escape from the defendants land because of the supernatural forces without any human intervention, then the defence of act of god can be pleaded successfully.

3. Consent of the Plaintiff

This comes in the highlight when there is “common benefit” of both plaintiff and defendant. If some act is done for the common benefit then the escape of the dangerous thing would not make the defendant liable for the same. However, there is no common benefit for gas or other public utility and the defendant would be liable.

4. Act of Third Party

If any act was done by the stranger, other than the defendant or the plaintiff then the defendant is not answerable for the same. This is because the act of the stranger cannot be foreseen by the defendant. Hence, the remoteness of damage will arise.

5. Statutory Authority

Any act done under statute caused inconvenience to the plaintiff will be taken as a defence by the defendant. However, it should not include negligence on behalf of the defendant. Indian courts held that in respect of storing a large quantity of water for agriculture purposes, will not create liability to the defendant unless he is negligent of the act. Hence, this leads to an exception to the rule of strict liability. This is because storing of water is necessary for the welfare of society.

Rylands v. Fletcher

House of Lords

(1868) L.R. 3 H.L. 330

FACTS OF THE CASE

( NAME OF PARTIES AND WHAT HAPPENED FACTUALLY AND PROCEDURALLY )

Defendant got the reservoir constructed through the independent contractors, over his land for providing water to mills.

There were old disused shafts under the site of the reservoir, which the contractor failed to observe and so did not block them.

When the water was filled in the reservoir, it burst through the shaft and flooded the plaintiff’s coal mines on the adjoining land.

The defendant did not know of the shafts and had not been negligent although the independent contractors had been.

Even though the defendant had not been negligent, he was held liable.

Issues Raised

( WHAT IS IN DISPUTE)

ON BEHALF OF PLAINTIFF :

Whether the negligent act of the independent contractor will not make the defendant liable?

Creating reservoir in that land in order to provide water to the mill will not account as non natural use of land?

ON BEHALF OF DEFENDANT

There was no malice or intention to harm the plaintiff’s property.

How will the negligence of the independent contractor, who is not in total control, will create liability ?

RATIO DECIDENDI

( LEGAL REASONING – RULE OF LAW)

ON BEHALF OF PLAINTIFF

In strict liability, employer (defendant) is liable for the wrongful act of the defendant. Thus, due to the negligent act of the independent contractor, defendant was held liable. Also, in one of the case, it was held that defendant could not escape liability for the breach of duty by engaging an independent contractor.

If a person brings on his land and keeps there any dangerous thing which is likely to do mischief if it escapes, he will be prima facie answerable for damage caused by its escape even though he had not been negligent in keeping it there. He will be held liable not because he is negligent but he kept dangerous thing in the land and termed as non natural use of land .since liability arises even without negligence on part of defendant, fall under strict liability.

ON BEHALF OF DEFENADANT

Malice do not play role in strict liability. If any dangerous thing placed on the land being non- natural and escape, caused inconvenience to others held liable for the same. Hence, water burst and destroyed the adjoining land would make the defendant liable for the same.

Independent contractor is an individual who performs on his own without any interference of the employer. He is not in total control of the employer. He is his own master. Also, he is assigned to do a certain work, but he is to exercise his own discretion as to the mode and manner of doing the act. He is bound by his act and not his employer’s orders.

JUDGEMENT

( APPLIED RULE OF LAW BY THE JUDGES )

It was decided by justice Blackburn J, who delivered the judgment of the court of exchequer chamber, and the house of lords, that to succeed in this tort the claimant must show:

That defendant brought something onto his land.
That the defendant made a “non natural use of his land”.
The thing was something likely to mischief if it is escaped.
The thing did escape and cause damage.

Hence, defendant liable under strict liability.

However, it was held that the defendant can escape liability by showing that escape was owing to plaintiff’s default; or due to vis major.

It was laid down in this case that in strict liability the employer is liable for the acts of the independent contractors.

Conclusion of the Case

A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, prima facie answerable for all the damages which is the natural consequence of its escape.

Wrong of the independent contractor makes the employer liable though he is not in total control and guidance of the employer because the concept of negligence is irrelevant in the case of strict liability. This is because, in negligence, liability can be avoided by taking precautions. If enough precautions had been taken, then the defendant can be exempted from the liability. But on the other hand; in strict liability, even though enough precautionary measures were taken still it will make the employer liable.

Absolute Liability

Strict liability is more exaggerated in the case of M.C. Mehta v. Union of India in the year 1990. It was observed that strict liability did not fully meet the needs of a modern industrial society where inherently dangerous activities are necessary to be carried on. This leads to many environments hazardous and creates the need to lay down the new rules regarding the same. If any industry or organization engaged in any hazardous or inherently dangerous activity and as a result harm others on account of the execution of the activity, then it will be liable.

Absolute liability is absolute and non-delegatable, that means the defendant cannot escape from liability by showing that it has taken all reasonable care and there has been no negligence on its part. That means absolute liability is an exaggerated form of strict liability as it does not provide any exceptions to it.

Absolute liability was a need as many industries do hazardous work and they could be exempted from the liability by taking any defence if strict liability was continued. Absolute liability is associated with environmental hazard and at the time of any case of absolute liability, the court awards exemplary damages.

Case 01

Union Carbide Cooperation v. Union of India

CITATION:

1990 A.I.R. SC 273, 1989 SCC (2) 540

DATE OF JUDGEMENT:

04/05/1989

BENCH:

Pathak , R.S. (CJ), Venkataramiah, E.S (J), Misra Rangnath, Venkatachalliah , M. N. (J), Ojha, N.D.(J).

PLAINTIFF / APPELLANT – Union Carbide Corporation

DEFENDANT/ RESPEONDENT – Union Of India and Ors

FACTS OF THE CASE

( NAME OF PARTIES AND WHAT HAPPENED FACTUALLY AND PROCEDURALLY )

union carbide India ltd (UCIL) was incorporated in India which manufacture chemicals, manufacture of pesticides, etc in Bhopal UCIL was subsidiary of UCC , a multinational company of USA .

In the year 1984, Methyl Iso- cyanate (MIC) got leake which leads to at least 3,000 deaths in Bhopal and serious injury to a large number of people. (estimated to over 6 lakhs people in Bhopal). It leads to many health losses to respiratory system, digestive system, affecting their eyes, damage to pregnant women and many other issues.

APPEALS

COURT OF USA

As many people were affected by the disaster and many filled writ petition under article 32 of Indian constitution. Also, as environment was affected leads to violation of article 21 as well. Also, UCIL was subsidiary of UCC, a multinational company of USA. So, First appeal was made in court of USA for relevant action.

DISTRICT COURT OF BHOPAL

After the refusal of appeal in USA, union of India filed a suit in district court of Bhopal.

HIGH COURT OF MADHYA PRADESH

As huge amount of compensation was directed by the district court. So UCC made an appeal to Madhya Pradesh high court .

SUPREME COURT OF INDIA

UCC were trying to draw a strategy with Indian government through their lawyers in India , as UCC may be abide to pat the huge compensation. UCC was directed to stay aside with such strategy but UCC also tried to negotiate with UOI for settling the dispute. Then the final appeal was made in Supreme Court of India

JUDGEMENT

(APPLIED RULE OF LAW BY THE JUDGES )

COURT OF USA

Appeal was rejected by the court.

DISTRICT COURT OF BHOPAL

The district and session judge of court, M W, Deo ordered the UCC to pay an interim relief of Rs 350 crore to the gas victim.

MADHYA PRADESH HIGH COURT

Petition of district court was revised in Madhya Pradesh high court. It was held by Mr. S.K. Seth to reduce the compensation from Rs 350 crore to Rs 250 crore.

SUPREME COURT OF INDIA

After 4 continuous year of litigation, supreme court on 14 and 15 february 1989 directed UCC to pay Rs 750 crores to the victim.

Supreme Court also held, to provide medical facilities to all the victims for period of 8 years, state government shall provide suitable land free of cost and UCC and UCII to bear the cost. Health insurance and life insurance was taken into consideration for about one Lakh people.

The Bhopal gas leak disaster (processing of claims) act, 1985 was passed in order to secure claims arising out of Bhopal gas leak disaster.

The Bhopal gas leak disaster(registration and processing of claims) act, 1985 was introduced by section 9 of the Bhopal gas leak disaster(processing of claims) act, 1985.

CONCLUSION OF THE CASE

As many people were affected by the leakage of the toxic gas. It was more rigorous form and couldn’t satisfy with strict liability. When any enterprise engaged in any hazardous activity, it has to undergo with many precautions and guidelines as to not affect the people by that hazardous act. Absolute liability was not intimidated in this case but there was a serious concern as many people were affected by the same. Provision of strict liability couldn’t satisfy the loss.

CASE 02

M. C. Mehta v. Union of India

CITATION:

A.I.R. 1987 SC 965: (1987) 1 SCC 395

PLAINTIFF / APPELLANT – M. C. Mehta

DEFENDANT/ RESPEONDENT – Union Of India

FACTS OF THE CASE

( NAME OF PARTIES AND WHAT HAPPENED FACTUALLY AND PROCEDURALLY )

On 4 and 6^th december 1985 from one of the units of shriram food and fertilizers industries, oleum gas was leaked. Factory was situated in densely populated area of delhi.

As a consequence on advocate of Tis Hazari court died and many were affected.

M.C. Mehta one of the senior advocate, filed a PIL under article 21 and 32 of the constitution.

ISSUES RAISED

( WHAT IS IN DISPUTE)

ON BEHALF OF PLAINTIFF :

Whether such hazardous industries to be allowed to operate in such areas?

What are the rules or provisions regarding the Liability and compensation of the hazardous act?

If such factories are allowed to work in such areas, what will be the mechanism regarding same?

Does rule of strict liability be justified in this kind of hazardous case?

Act caused out of the case do not affect the fundamental right in shrined under article 21 and 22 of Indian constitution.

ON BEHALF OF DEFENDANT

As act caused out of negligence, why can’t defenses exempt the defendant from the liability by following provisions of the strict liability?

RATIO DECIDENDI

( LEGAL REASONING – RULE OF LAW)

ON BEHALF OF PLAINTIFF

These acts could not be set aside as they play important role in needs of the people and the economy of the country. Permanent ban or closed down will create employment problems. However, there must be some protocol and mechanism to be followed by the factories.

Based on the harm caused to others and the magnitude must decide the liability and the compensation.

Some conditions or protocol must be followed are:

workers must use safety measures like masks, belts, etc.
central pollution central board to appoint as inspector to inspect the pollution standards .
some loudspeakers or visual technique should be used to look after the leakage of the gas.

As serious harm was caused not only to humans but animals and to the environment as well. If strict liability is taken into consideration, then factories may exempt from the liability by taking defenses and this may continue as long.

As many health issues were caused to the people and environment was also affected. This affect the living strarta and area for the humans, which

ON BEHALF OF DEFENADANT

As like the case of Ryland v. Fletcher, this case can also be set aside as there was no negligence on behalf, it was a mere accident. Defense could be allowed.

JUDGEMENT

( APPLIED RULE OF LAW BY THE JUDGES )

Supreme court held the defendant absolutely liable and directed shriram industries would deposit RS 20 lakhs for payment of compensation to the victims. Court held that strict liability couln’t be justified in this case as harm was caused beyond imagination.

CONCLUSION OF THE CASE

Soon after the Bhopal gas disaster, this was the second deadly case in India which took lives of several people to be leakage of hazardous oleum gas. Strict liability of the 19th century could not satisfy the deadly disaster. Some stagnant action is needed against the disaster against the environment and lives of the people. Hence, absolute liability was imparted to resolve these kinds of problems. As a result, absolute liability was introduced in the case of M.C. Mehta v. Union Of India.

CONCLUSION

After the case of M.C Mehta v. union of India, all liabilities affecting environment and people in large considered as absolute liable and cannot be exempted from liability by taking any defense. Hence, both strict and absolute liability termed as “no-fault liability”.

BIBLIOGRAPHY

Research has been done from following resources:

R.K Bhangia
J.N.Pandey book
www.latestlaws.com
www.lawtimesjournal.in
www.indiakannon.org

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This article is written by Shivani Kumari, a student of Lloyd Law College.

INTRODUCTION

Let no stranger intrude here, no invader trespass. This was ours, and this we would defend. – John Marsden

The word ‘Tort’ is derived from a Latin word ‘tortum’ which means ‘twisted’ or ‘what is not straight’. A tort is a civil wrong as opposed to a public wrong. A civil wrong is a wrong against an individual and not against a state. But all civil wrongs are not torts. Breach of contract is a civil wrong but it is not a tort, because the damages or compensation paid by the party committing such breach of contract is normally liquidated or predetermined. In tort damages are unliquidated,i.e. not predetermined or which are to be determined by the court. The basic principle behind action for tort is “ubi jus ibi remedium’’. It means where there is a right, there is a remedy. In order to constitute a tort, it is essential that (a) There must be some act or omission on the part of the defendant, i.e. the wrongdoer (b)such act or omission has caused a legal damage i.e. infringement of some legal rights of the plaintiff.

Immovable property

According to section 3(26) of the General clauses Act, 1897,’’ Immovable property includes land, benefits to arise out of land and things attached to the earth’’. It is surprising that the Transfer of Property Act does not contain any comprehensive definition of immovable property. It merely gives a negative definition as Immovable property does not include standing timber, growing crops or grass’’.

Land

Land is a determinate portion of the earth’s surface. All the objects which are on or under the surface in its natural state are included in term land. Land also includes all the objects placed by the human agency on or under the surface with the intention of permanent annexation to the earth for instance building, wall, fences etc.

Benefits to arise out of land

Is it the right to collect rent and profits from the immovable property? Benefits to arise out of land basically means profit derived from the land without having substantial control over the land. It is also known as ‘ Profit a Prendre’, which is a french term meaning ‘ right of talking’. A profit a Prendre is a right to take something off the land of another person. It is the right to enter the land of another person and to some profit of soil, or a portion of the soil itself, for the use of the owner of the right. Some examples of Profit a Prendre include right to graze stock, plant and harvest crops, quarry stone, sand and gravel, taking timber etc. It can further be explained by some Indian case judgements-

In Anand Behera v. State of Orissa, AIR 1956 SC 17, case, the petitioner had obtained a license to catch all fish in specific sections of the chilka lake from its proprietor( Raja of Parikud). The Orissa Estate Abolition Act, 1951 was passed and the ownership of Estate vested in the state of Orissa. The state refused to recognise the license of the petitioner. Petitioner claimed that his fundamental rights are violated and also contended that ‘ catching fish ‘ is a transaction related to the sale of future goods. The court claimed that the lake is an immovable property and thus the petitioners right to enter Estate and carry away fish from the lake is equivalent to ‘Profit a Prendre’.

In Shantabai v. State of Bombay,AIR 1958,SC 532 Case, Shantabia’s husband had granted her the right to take and appropriate all kinds of wood from certain forests from his Zamindari through an unregistered document. With the passing of Madhya Pradesh abolition of proprietary Rights Act, 1950, all proprietary rights of the land vested in the state of Madhya Pradesh and the petitioner was prohibited to cut any wood. she claimed in SC that her fundamental rights are being violated under 19(1)(f) and 19 (1)(g). So the court talked about the phrase ‘Benefits arising out of land’ and held that Right to enter upon land and cut trees is a benefit arising out of the land.

Things attached to earth

Transfer of Property Act, 1882, in its section 3 para 6 defines the expression ‘Attached to earth’ as it includes(a) things rooted in the earth (b)things embedded in the earth (c)things attached to what is so embedded and (d) chattel attached to earth or building.

Torts related to immovable property

Torts related to immovable property is a civil wrong which causes some legal injury or damages to the land, benefits arising out of land and things attached to the earth of the plaintiff. Torts related to immovable property have a wider scope and it contains various forms of tort like Trespass, injury to reversionary rights, waste, dispossession, wrongs to natural rights and easement, and nuisance.

Trespass

The tort of trespass can be defined as an unjustifiable physical interference of land in possession of one party by another. Trespass is civil as well as criminal wrong because it is recognised by the Indian Penal code under section 441(7). It is of two types –(a) Trespass quare clausum fregit which means unlawful entry upon the land and (b) Trespass de bonis asportatis which means the wrongful taking of goods. Trespass is actionable per se which means it does not require any proof of actual damage caused to the property.

Trespass may be committed by any of the following ways-

By entering wrongfully upon the land of the plaintiff
By remaining there in the land (unlawfully)
By interfering with the land or by constructive entry

There are various remedies available to the plaintiff but the three most important are-

An action can be brought by the plaintiff against the wrongdoer.
Force can be used by the plaintiff in order to defend his possession.
An injunction can also be obtained by the plaintiff from the court under the Specific Relief Act, 1963 to restrain a continuing or threatened trespass.

Defence available to the defendant

Prescription
Leave and license
Self-defence
Act of public necessity
Special property or easement
Re-entry on land

Injury to reversionary rights

A reversionary right is a condition which provides that, on the happening of a prescribed event, ownership of the property will revert back to a previous owner or, if so expressed to the heir of the previous owner if since deceased, or their successors in title. In another word, a reversioner is a person who has a lawful interest in land but not its present possession. For instance, local authorities often sell the property subject to a condition that the purchaser must erect a dwelling on the said property within a specified period of time, failing which the property will revert back to the local authorities. Failure to erect the building within the specified period of time brings about the reversion.

Waste

It is the spoil or destruction of houses, gardens, trees or unlawful damage caused to the immovable property by the person who was just given lawful possession of that property. such damage must be of permanent nature and should cause prejudice to the owner or the reversioner.

Essentials of waste

An act or omission
Such act/omission must be done by the tenant or anyone in possession
It must cause prejudice to the owner/ reversioner

Damage and injunction for waste

In a suit against waste, the plaintiff may recover the actual damage caused to the immovable property and can also obtain an injunction on the actions of the wrongdoer of the defendant.

Dispossession

An owner is said to be dispossessed of his immovable property when the defendant does an act which declines the overall dominion of the plaintiff over the property. An owner can also be said to be dispossessed of his property when the defendant acquires settled possession of the land with the intention of acquiring exclusive control over the immovable property of the owner (Sundara Sastrial v. Govinda Mandaroyan,1908).

Wrongs to Natural Rights and Easements

An easement right is a non-possessory right to use the property of others without having the possession of such property. When any such right is infringed or interfered by any stranger or owner of that property then that amounts to tort and is actionable

Remedies available for infringing the right of easement

Damages to compensate for the injury or the loss
The injunction obtained from the court to prevent such repetition.

Nuisance

Nuisance is described as unlawful interference with a person’s use or enjoyment of land or of some rights over, or in connection with. Nuisance is of two types: public nuisance and private nuisance. A private nuisance is a civil wrong, explained as, unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion. Whereas on the other side public nuisance is a criminal wrong, it is an act or omission that obstructs, damages, or inconveniences the rights of the community.

Essentials of a nuisance

An unlawful act
Damage actual or presumed

Conclusion

There are certain natural rights which are attached to every land and are necessary for the peaceful enjoyment of the immovable property. One can enjoy his property in any way he wants but cannot infringe the legal rights of the other by making such use of his property. Torts relating to immovable property have been categorised into different categories and all of them are dealt in different ways. Each of the tort mentioned above has defences and therefore the defendant can avoid the suit if he falls under those defences. Though the remedies and defences given under every tort are given considering that no party is prejudiced by the act of another.

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Author Mansi Malik a fourth-year law student at Lovely Professional University, Phagwara, She is currently interning with Lexpeeps.in

“The article traverses the malpractices and misuse of resources or the power for the individual benefit”

The corruption in India has become a limelight issue, the black- money has become a drug addict practice in people’s life. It works as cancer to the whole of India. The evil practises of corruption has been practised since the 1990s. In Indian penal code 1860, the provisions of corruption and the offence of bribery were stated. However the sections couldn’t stop or regulate the stoppage of such mal practises, under the table transactions, and scams like marine scams were highly practised all over India. Therefore, the legislature took a debate to establish an Act related to The Prevention of corruption act 1988. Since yet many amendments were taken into consideration by law commissions and by Santhanam committee.

Earlier the bribe was taken or given for doing wrongful act however in today’s scenario the bribers are been given or taken to do the rights things done expeditiously. The prevention of corruption act 1988 not only deals with prevention but however also laid down the history of such evil practice development. and state the silent features of the act. It has been prevalent since history in the Mughal period the corruption was highly practised. The great Kautilya states the forty types of corruption been practise in such a developing society. When East India company took controls and management of the whole country the corruption leads to new heights. Lord Cornwallis took out many principles to curb corruption in every form. Sections 161 to section 165 of Indian Penal code frames the legal provisions towards corrupt public servants. After second world war II. The lawmakers passed law ordinance, 1944. It was amended by Criminal law 1952 and finally enacted under the Government of India Act 1935. The legislation brought with Prevention of corruption act 1947 it was the direct consolidated law framed on the subject of corruption. And finally, Prevention of corruption act 1988 came into force on 9th day of September. Moreover, the scope of the definition to public servant given wider interpretation. Act 1988, is the main Anti-corruption administrative in India. It extends to whole India including Jammu and Kashmir.

Salient Features of the Act 1988

Definition of a public servant has been stated wider than Indian Penal code 1860.

‘Public Duty’ has been introduced in the Act 1988 by legislation

All cognizance of cases is to tried only by special judges

Penalty for the offence has been enhanced by the Act 1988

The Act provide the speedy and expediters trial

No court has the power to stay the proceedings under the grounds of any error or irregularity in the sanction until unless the court states its opinion.

Other provisions regarding presumption, investigation, inquiry, immunity to briber giver have been retained.

The act not only provides the basic concept relating to corruption but also ensures proper investigation, inquiry procedure.

Structure of Prevention of Corruption Act 1988

The Act consist of 31 sections however divided into 5 chapters and section 31 has been repealed by Act 2001. Section 3 of the Act provided the Appointment of special judges, powers and procedure to try the case summarily. Section7-15 mandates about the offences and penalties amount to corruption. Section 17 and section18 states about the procedures for inquiry and investigation. however, section 19 to section 30 states about the sanction’s provisions for prosecution and other provisions. The Preamble of the prevention of corruption Act 1988 mentions the objectives and states about the act to consolidate and amend the laws and other matters connected with the Act thereto.

In the Indian Gazette dated 9-12-1988. part II describes the statement of objective. it states about existing Anti-corruption Laws and wider the interpretation of Public servant and to bring each and every person who is required to person its virtue of public duty. Moreover, to make the Anti-corruption laws more effective by strengthening the scope of the Act.

Amendments for effective control

In 2011, May the Government of India has ratified the two (UN CONVENTIONS

that strengthen the UNCAC) and UNTOC (UNITED NATION CONVENTION AGAINST TRANSNATIONAL ORGANISED CRIME) the conventions imposed large number of regulations against members of state and effectively ensures the remedies for Domestic Laws for prosecuting the offence of bribery and corruption. To fulfil such International norms and measures the Union of India passed a Lokpal Act 2013 with amendment relating to corruption. Thus, the Act 1988 also amended by the Commission of Inquiry act. with Delhi Police Establishment Act, Code of Criminal Procedure1973, CVC Act 2003, Section 7,8,9 and section 12 of the Prevention of corruption Act 1988 the sentence for punishment was enhanced by three years after amendment and maximum has been enhanced to seven years. Section 13of the Act states about misconduct by public servant the minimum imprisonment was enhanced by four years and maximum imprisonment was enhanced by ten years. section 14 of the Act 1988 Habitual committing offence under section 8,.9 the imprisonment has been enhanced by five years. and maximum imprisonment has enhanced to ten years. Section 19 of the Act 1988 was amended for the purpose of prosecution.

Proposed Amendment to Bill 2013

The Act 2013 amends the prevention of Corruption Act 1988

The Act dealt with the offence covered by public servant under Abetment

The Bills lays an objective for offering a bribe to a public servant and commercial organization. the Bills also reviews the criminal misconduct and possession of misappropriation of assets.

Conclusion

Corruption is like a communal disease which once started has no end to come back. There is no denying that corruption is one of the country’s failure towards economic growth. corruption is a misuse of resources, misuse of public goods for private purposes. It also affects Public morality at large essence. Corruption has been spread in all sectors. Corruption has one of the highest causes of damaging the integrity of one’s nation. If the root cause will be eradicated from the nations automatically the other causes will spread it out. Corruption is not limited to only private gain however its been linked with the mal-practises, giving and taking bribes, under-table -transaction and even investors-transaction. Corruption is swindling conduct by people who are a high ranking of power, such as managers, or public servants. Corruption imply taking or giving bribe or unseemly gifts, treachery, illicit-transaction, influencing elections, reroute funds, laundering money and hoodwinking investors. The aim of the movement against the wicked practise of corruption is solely based upon the function of the Union.

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The case analysis is written by Mohit Bhardwaj a second-year student of Unitedworld School of Law. In this case comment, the author has briefly explained the case of South Indian Industrial Ltd. Madras v. Alamelu Ammal.

INTRODUCTION

In South Indian Industries Ltd. Vs. Alamelu Ammal, AIR 1923 Mad. 565, case the defendants were carrying on the business of breaking up of cast iron by dropping of a heavyweight on the iron as a result of which the broken pieces of cast iron used to fall at a distance of 4 to 5 yards. One of those pieces struck the plaintiff standing at the distance of more than 70 yards.

Case Number

58 of 1921

Hon’ble Judges/Coram

C.J. SIR. KC. WALTER SALIS SCHWABE & MR. JUSTICE WALLACE

Decided on

24 January 1923

Equivalent Citation

(1923) 45 MLJ 53, LQ 1923 HC 0009

Statutes Referred

Law of Torts & THE FATAL ACCIDENT ACT, 1855

Brief Facts and Procedural History

The facts are that the defendants for the purposes of their own business used a method of breaking up castiron which consisted of dropping a heavyweight on pieces of iron resting on a bed of iron with the intention that these pieces should be broken into smaller pieces. The weight was dropped from a height of 35 feet with the inevitable result that pieces of iron flew about. It is common ground that they habitually flew to distances of four or five yards from the pit.

Issues Before the Court

Weather ordinary care and caution were being exercised or not?
For how much amount the defendant was liable?

Ratio of the Case

The contention was based on the maxim volenti non fit injuria, when the defendant company itself pleads that. it did not anticipate and could not have anticipated pieces flying over a distance of 90 feet, the bench does not see how they can plead that their deceased workman could possibly have anticipated it for himself, and thus the essential ingredient of that defence is lacking. As ‘to the contention that deceased must have known that ordinary care and caution were being exercised, and yet continued working, that defence also fails, as, in my view, such ordinary care was not exercised.

If a person chooses to carry on dangerous operations of that kind, it is their duty not only to the public but to their servants to take adequate precautions that those pieces shall not cause injury. They ought to exercise ordinary care, caution and skill to prevent that. The mere fact an accident has happened is strong evidence in a case of that kind that they had not taken the ordinary care, caution, and skill required for preventing the happening of the event.

Decision of the Court

The cross-appeal was therefore allowed with costs on Rs. 500, the amount awarded and the defendant was held liable, as he could not prove that at such a valid distance the plaintiff had knowledge of the risk, he fully appreciated the risk and he freely and voluntarily accepted the risk defence fails, as, in the view of the bench, such ordinary care was not exercised.

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This analysis is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This analysis aims to provide all the necessary details about the case in brief.

INTRODUCTION

In this case, the two appeals having the same question of the law were disposed of in one and the respondents have transported fertiliser without any official permit with them and hence committing an offence under Section 511 IPC.

Case Number

Appeal(Criminal) 49 & 24 of 1978.

Equivalent Citation

1989 AIR 1789, 1989 SCR (3) 549

Bench

Hon’ble Justice S. Natrajan., Hon’ble Justice A.M. Ahmadi

Decided On

25^th July, 1989

Relevant Act/ Action

Essential Commodities Act, 1955- Section 3,7

Fertilizer (Movement Control) Order, 1973

Indian Penal Code,1860- Section 511

Facts of Case

In both criminal appeals No. 49 and 24 of 1978, a common question of law is involved. The facts of the case are that in both the cases two lorry drivers, two cleaners and a coolie were prosecuted for exporting fertilizers without a permit from Madhya Pradesh to Maharashtra in contravention of Fertilizers (Movement Control Order), 1973 and Section 3 & 7 of Essential Commodities Act, 1955. In both the cases, the trial court and High Court held that the accused were only preparing to export fertilizers and not making attempt to export the fertilizers and therefore acquitted them. In Crl. Appeal No. 49 of 1978, a truck carrying 200 bags of fertilizers was proceeding from Indore to Maharashtra and was intercepted. The lorry driver did not have the permit issued under the Fertilizers (Movement Control Order), 1973. In Crl. Appeal No. 24 of 1978, the truck was carrying 170 bags of fertilizers and it also does not have the permit issued under the Fertilizers (Movement Control Order), 1973. It was the defence of the accused that they do not have the knowledge of the contents of the documents seized from them. The trial court and High Court acquitted the accused persons on basis that evidence fell short of the proving that the accused were attempting to export the fertilizers from Madhya Pradesh to Maharashtra in contravention of the Fertilizers (Movement Control Order), 1973.

Issues Before the Court

1) Whether the respondent/accused have only made preparation to export fertilizers from Madhya Pradesh to Maharashtra?

2) Whether they were guilty of attempting to commit offence of exporting fertilizers in contravention of the Fertilizers (Movement Control Order), 1973 and Section 3 & 7 of Essential Commodities Act, 1955.?

3) Whether the findings of trial court and High Court are erroneous and unsustainable in law?

4) Whether the prosecution must prove mens rea on part of accused in exporting fertilizer bags without valid permit?

5) Whether the commission of offence includes unintentional contravention of the Fertilizers (Movement Control Order), 1973 and Section 3 & 7 of Essential Commodities Act, 1955 by the accused?

Judgment

The Supreme Court in its judgment held that the case was not of mere preparation viz. the respondents were trying to procure fertilizer bags from Madhya Pradesh to Maharashtra. The trucks have entered in the Maharashtra border and the respondents were taking the trucks with fertilizers for dispatch from Madhya Pradesh to Maharashtra. This was clear case of attempted unlawful export of fertilizers. High Court was wrong in declining to grant leave to State. If any person whether knowingly, intentionally or otherwise contravenes any order under Fertilizers (Movement Control Order), 1973 and Section 3 & 7 of Essential Commodities Act, 1955, he shall be punishable under law. However, Supreme Court did not convict the respondent for the offence of exporting the fertilizer bags from Madhya Pradesh to Maharashtra in contravention of the Fertilizers (Movement Control Order), 1973 and Section 3 & 7 of Essential Commodities Act, 1955, as 15-years have since been passed after the acquittal of the accused. Supreme Court relied upon case “Swastik Oil Ltd. vs. State” (19) GLR 117. Therefore, without awarding any punishment to the respondents, the Supreme Court allowed the appeal.

Ratio of the Case

Ratio decidendi of a case is whether the facts the judge has determined to be material facts of the case, plus the judge’s decision based on those facts of the material facts that the judge creates law.

Thus, Ratio Decidendi = Material Facts + Decision

In this case, the Supreme Court kept in mind the material facts that

1) The accused persons have attempted to export fertilizers from Madhya Pradesh to Maharashtra in contravention of the Fertilizers (Movement Control Order), 1973 and Section 3 & 7 of Essential Commodities Act, 1955.

2) The prosecution did not prove mens rea on part of the accused in export of the fertilizers from Madhya Pradesh to Maharashtra without permit.

3) The Supreme Court keeping in mind all the material facts and equivalent judgment on the subject, allowed the appeal in favour of the State but did not punished the accused persons as they were acquitted 15-years back.

Decision of Court

The Supreme Court allowed the appeal without punishing the respondents as the case 15 years old and accused were acquitted 15-years back.

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