Month: July 2020

Winding of a Company

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This article is written by Sambavi Marwah, a fourth-year law student, from Delhi Metropolitan Education, GGISPU.

INTRODUCTION

This article explains the ‘Role of the Courts in winding up of a company’. It states the requirements and the grounds of the winding up of the company when the decision of Courts is involved.

What is a Company?

The Companies Act 2013 of India defines a company as- 

“A registered association which is an artificial legal person, having an independent legal, entity with perpetual succession, a common seal for its signatures, a common capital comprised of transferable shares and carrying limited liability.” 

A company can be a public company (or Public Limited Company), a private company (Private Limited Company) or a One Person Company.

Characteristics of a company are as follows:

•Incorporated existence

•Perpetual existence

•Artificial person

•Separate legal entity

•Common seal

•Limited liability

Winding of a Company

Winding up of a company is the process by which the life of a company comes to an end and the assets are distributed and divided accordingly among its members and creditors.

A liquidator is appointed and he takes the charge over the assets of the company, pays the debt, and pays the remaining amount to the members of the company.

As per Section 2(94A) of the Companies Act, 2013, “winding up” means winding up under this Act or liquidation under the Insolvency and Bankruptcy Code, 2016. 

Winding up of a company can take place due to several reasons like- bankruptcy, mutual agreement among the stakeholders, losses, order by the court, etc.

As per section 270, a company would wind up in two ways:

•Voluntary winding up

•Compulsory winding up 

Voluntary Winding Up

Voluntary winding up takes place when the company becomes insolvent and is unable to pay its liabilities. The members decide voluntarily to wind up before the National Company Law Tribunal intervenes.

To voluntarily wind the company, a meeting is called upon, where a resolution is passed to carry out the process of winding up. There are two ways by which a company declares winding up:

•By Special Resolution: After getting 75% majority of votes from its shareholders and board of directors, a company may wind up voluntarily but only when the special resolution has been passed. Then after the resolution has passed, the same has to be published in the Official Gazette and in leading newspapers of that district/city within 14 days.

•By Ordinary Resolution: A company may wound up voluntarily if the life or duration of the company comes to an end. The duration of the company’s existence is mentioned in the articles of the company.

Meeting of the Creditors

If during the meeting of the creditors, the majority of them are of the view that a company should wind up voluntarily, the process of winding up takes place. 

But, if they think that the company should be wound up by the Tribunal as it may not be able to set off the debt, then the process of winding up will opt. The process begins by applying to the Tribunal within 2 weeks. Also, the Registrar of the company has to be informed of the same within 10days.

The next step is the appointment of a liquidator. The company appoints a liquidator who is evaluating the asset & liabilities of the company and present a final report to National Company Law Tribunal. 

Compulsory Winding Up- Role of the Courts

Compulsory winding up takes place when the Court gives an order to the creditors or the members of the company to wind up. It is primarily the National Company Law Tribunal (NCLT) which has the jurisdiction to wind up companies under the Companies Act, 2013. There must be strong reasons to order winding up as it the last resort to be adopted.

Constitution of NCLT

It consists of mainly:

•President

•Judicial Members

•Technical Members

With the introduction of the new Companies Act, 2013, a tribunal can wind up the company of the following grounds:

•When the company becomes insolvent and is unable to pay the debt.

•If a special resolution has been passed in the favor of winding up the company by the tribunal.

•If the company has acted against the Constitution of India, damaging the integrity or the morality of India, or security of the state.

•If it has been found out that the financial statements or annual returns have not been filled by the company for preceding 5 consecutive financial years.

•If it is found by the Tribunal that it is reasonable, fair, and equitable for the company to wind up.

•If it has been found out that the company has been engaged in some criminal act or any unlawful activities.

Who may File a Petition to the Tribunal?

Section 272 of the Companies Act 2013 says, that a winding-up petition is to be filed in the prescribed form no 1, 2, or 3 whichever is applicable and it is to be submitted in 3 sets. The petition for the process of winding up can be filed by the following entities: 

•A company can file a petition to the Tribunal for the process winding up when a Special Resolution to wind up the affairs of the company has been passed by the members of the company. 

•A contributory shall be entitled to present a petition for the winding-up of a company, notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities, and shares in respect of which he is a contributory or some of them were either originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding-up or have devolved on him through the death of a former holder. 

•A Registrar may make petition to the Tribunal for the winding up the company only in the following cases: 

  1. If the company’s activities are unlawful and fraudulent.
  2. If the company failed to file the annual financial statements within a stipulated time.
  3. If the company acted against the morality or integrity of the state.

The Registrar may do so with the previous sanction of the Central Government. 

•The Central government or the State government can file a petition on the ground that the company acted against the nation’s security or against the interests of the sovereignty or integrity of India.

•Last but not the least; a petition can be filed by any person authorized by the respected government. 

CONCLUSION

The process of winding up the company under the Companies Act 2013 is as lengthy as setting and forming the company. The process of winding up has its own grounds and complexities, which aid the company to make a decision. It can be further concluded that National Companies Law Tribunal plays an important role in the winding-up of a company as it takes an important decision while keeping all the grounds and measures of winding up.

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Institution of a Suit under the Civil Procedure Code, 1908: The First Stage of a Civil Proceeding

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. This article focuses primarily on how a civil suit can be instituted under the procedural laws of Civil Procedure Code, 1908 (hereinafter as CPC, 1908). The article lays down a general pattern of a general civil suit and deals with the provisions related to the same under CPC, 1908.

Suit: Meaning

The term ‘suit’ has not been defined in the CPC, 1908. Generally, it is understood as a proceeding that commences upon the presentation of a plaint in a civil court. A plaint is a statement in writing of a cause of action in which the relief claimed is set out in detail. The Black’s Law Dictionary defines a suit as the proceeding initiated by a party or parties against another in the court of law.

Ordinarily, there appears a minute difference between the suits filed under the CPC, 1908 and the other suits filed under various legislative enactments.  The suit filed under CPC, 1908 has a particular format and it is a civil proceeding instituted by presenting a plaint whereas in other suits e.g. matrimonial are generally instituted by presentation of a petition by either party to the suit.

Provisions regarding institution of a suit are specified under Section 26 and Orders I, II, IV, VI, VII.

Essentials of a Suit

There are four essentials of a suit which are explained as follows:

Parties (Order I)

In a suit, there must be at least two parties i.e. the plaintiff and the defendant. There is no bar as to the maximum numbers of plaintiffs or defendants. There are two categories of parties viz. necessary party and proper party. The significance of the necessary party in a suit is that the presence of such a party is vital to the constitution of the suit and the relief is sought against such party and without such party, no effective order can be passed. A proper party is one in whose absence an effective order can be passed, nonetheless whose presence is necessary for a complete and final decision on the question involved in the proceeding.

Subject Matter

There must be a subject matter i.e. a set of facts which have to be proved to enable the plaintiff to get the relief claimed by him. It includes the course of action. The subject-matter can be movable as well as immovable property and the details regarding the same has to be given in the plaint by the plaintiff for a successful filing of his plaint and getting the relief claimed in the plaint.

Cause of Action (Order II, Rules 3, 6 and 7)

It contains a set of facts or circumstances that the plaintiff is required to prove before he can succeed. It serves as the foundation of the suit. It includes all the essential facts which constitutes the right of a plaintiff and its alleged infringement and thus it is an antecedent to the filing or institution of any suit. The facts must be mentioned in clear and unambiguous terms. A person is a party to the suit if there lies a cause of action against him. It is important to note that every plaint must disclose a cause of action or some act done by the defendant else the Court is under a duty to reject such a plaint as per Order 7, Rule 11.

Relief claimed by the plaintiff

Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court will give relief unless it is specifically claimed by the parties to the suit. There are two types of reliefs: Specific and Alternative.

Institution of a Suit under CPC, 1908

There are various stages of a suit viz. institution of suit or commencement of suit, service of summons, written statements, first hearing and framing of issues, production of evidence and final hearing, arguments, judgment, preparation of a decree and its execution. The focus of this article is to deal with the first stage i.e. Institution of a suit. The institution of a suit consists of the following steps:

Filing of a plaint

It is noteworthy that the term plaint is not defined under CPC, 1908. According to the dictionary meaning, plaint is a statement in writing on grounds of complaint made to a court of law and asking for redress of the grievance. Order VII deals with the format of a plaint and contains various rules. 

Pleadings are defined as pleadings as “a plaint or a written statement” in Order VI Rule I of the CPC, 1908. Plaint is the first step to initiate the filing of a suit. The document containing various facts and circumstances regarding the Plaintiff’s grievance is filed by the plaintiff after hiring a counsel and such a document is called a plaint.

Amendment of Proceedings

The Court may, at any stage of the proceedings, allow either party to alter or amend its pleadings in such manner and on such terms as may be just (Rule 17 of Order VI of CPC, 1908), and all such amendments shall be made when it is necessary for determination of real question in controversy or is just and proper or is necessary in the interest of justice.

Place of suing

The place of suing plays a major role in a suit as it directly deals with the authority of a court to pass a decree. Choosing a court depends upon the contents of plaint one is filing. It refers to the jurisdictional aspect. Section 9 of CPC, 1908 provides that the Courts shall have jurisdiction to try all suits of a civil nature except in suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of a court is decided by the legislature and the parties to a suit, by the framing of the plaint, cannot interfere into the extent of this jurisdiction. But the parties can choose a court amongst various courts if they have the same jurisdiction. In Mt. Ananti vs Chhannu And Ors AIR 1930 All 193, the Court held:

“The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen.”

Section 15 of Civil Procedure Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it. On the filing of the suit, the Court must ascertain whether it has jurisdiction to entertain it. In cases where the jurisdiction is challenged by filing a petition by the defendant(s) to reject the plaint under Order VII Rule 11 CPC. The want of jurisdiction is merely an irregularity of the proceedings and the Court has the power to rectify it. 

Presentation of the plaint: When the suit commences?

The moment the plaint is filed it leads to the institution of the suit as it is provided in Section 26 of CPC, 1908 provides that every suit under shall be instituted by the presentation of a plaint or in such other manner as may be prescribed and the contents of such plaint shall be proved by an affidavit as per the amendment of 2002. Thus, a plaint is rightly filed by complying with the provisions of Order IV Rule 1 of CPC, 1908. The plaint may be presented either by the affected person himself, or by his advocate or by his recognised agent or by any person duly authorised by him. 

Time and Place of Presentation

Ordinarily, the presentation of a plaint must be on a working day and during the office hours. But there is no rule regarding it be made either at a particular place or time. A judge, therefore, may accept a plaint at his residence or any other place even after office hours, though he is not bound to accept it. If not too convenient, the judge must accept the plaint, if it is the last day of limitation. 

Registration of Suits

Rule 2 of Order IV provides that the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the Register of civil suits after the Court fees have been paid correctly in the Court having pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the Court and divides the Courts on a vertical basis. It is different for different district Courts in various states e.g. Currently, the pecuniary jurisdiction of the Delhi courts is · Suits amounting to Rs.1 – Rs.20, 00,000 and territorial jurisdiction. Territorial jurisdiction deals with the area wise jurisdiction of various courts which is decided by taking numerous factors into consideration.

 Such entries shall be numbered in every year according to the order in which the plaints are admitted. Thus, after the presentation, the suit will be numbered along with being scrutinised by the Stamp Reporter.

Once all these steps have been taken care of, a suit is successfully instituted before a Civil Court. 

NOTE: A suit will only be instituted successfully if it is not hit by the provisions of Res Sub Judice i.e. the matter is pending before a court already who is capable of executing a award which is asked for in new plaint OR else it is not hit by Res Judicata i.e. the matter has been already decided by a Court in a case involving the same parties in the same cause of action.

CONCLUSION

The journey of a suit from filing of plaint to its institution in the court is dependent on numerous factors. All these conditions are provided in the CPC,1908 in a proper procedural framework. Such procedural formalities point out to the exclusivity of CPC, 1908 and due to these, delays are caused in both institution of a suit and passing of a decree in civil suits. The legislators certainly realised this and therefore, there is a provision in CPC, 1908 under Section 89 which provides for the settlement of certain disputes outside the Court through conciliation, arbitration, judicial settlement including settlement through Lok Adalat and mediation. Also, under Order XXXVII there is a provision for Summary Suits which provide quick and efficacious relief. This has certainly led to settlement of disputes through Courts as well as Alternate Dispute Resolution Mechanism which is currently in vogue in India.

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1st Lawschole Virtual Moot Court Competition [Aug 28-30]; Registration On First Come First Served Basis, Register Now!!

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ABOUT THE ORGANIZER

From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment. It is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. We are a hub of various events including webinars, various competitions, courses, moot court competition series, and blogs.

ABOUT THE MOOT COURT COMPETITION


The 1 st Lawschole Moot Court Competition aims to provide law students with excellence in the world of mooting. The top 8 rankers of the competition will also get a chance to represent their institution in the “Yearly Rounds of the Pracs Series- Lawschole Moot Court Competition”, which shall be held in January every year. The top 8 rankers shall get a direct entry to the early rounds of the competition at a global level. This event is an excellent opportunity for law students to turn things around and use their time wisely. The event will enhance the advocacy and drafting skills of the participants. The aim of this competition is to enable law students all across India to participate and showcase their majesty over law and legal principles over a virtual platform.

ELIGIBILITY

Students of three year and five-year law degree courses or PG students from any University/Law /School/College/Department are eligible to apply for registration of their team.

TEAM SIZE AND OTHER INFORMATION

Each team shall consist of a minimum of two participants and a maximum of three; two participants shall be the speaker and one participant as a Researcher. However, a team consisting of two participants are allowed as Speaker 1 and 2.
Maximum 20 teams are allowed to participate in the 1 st Lawschole Virtual Moot Court Competition on a first-come-first-served basis.

REGISTRATION PROCEDURE

i) The last date of registration shall be August 5, 2020. Early Bird Registrations are open from July 20 to July 31, 2020. The registration shall be on a first-come-first-served basis. Therefore, if the Team cap limit of 20 (Twenty) Teams is filled beforehand, the registration for the
the competition shall close.
ii) Registration amount is Rs. 500/- (From July 20 to July 31, 2020). – EARLY BIRD DISCOUNT
Registration amount is Rs. 600/-. (On or after August 1, 2020, to August 5, 2020)
iii) The Registration shall be done by filling up the Application form, available here:
https://forms.gle/vknyjmbDXnw7hweN6 and after the payment, the participating team shall attach a screenshot of the payment receipt.
iv) Participants can submit the Registration fee via PayTm UPI Money Transfer, Bhim UPI, or Gpay by using the following UPI ID OR SCANNING THE QR CODE GIVEN IN THE RULE-BOOK ATTACHED BELOW (PLEASE NOTE: We DO NOT accept payments in Paytm Wallet. Make sure the transfer is a UPI MONEY TRANSFER.)
UPI ID- aprajitabhardwaj18@okicici
or,
PAYTM UPI ID- 7461015926@paytm

The registration fee shall be non-refundable and non-transferable.

IMPORTANT LINKS

 FIND THE BROCHURE HERE–
https://drive.google.com/file/d/1fEGVoIDvrPzThJYPW1qFtkxEx8orJD9J/view
 FIND THE RULE BOOK HERE-
https://drive.google.com/file/d/10MmuEeLPWEfbYOZ4jlfwYSD0hZtNdeh2/view?usp=sharing
 FIND THE MOOT PROPOSITION HERE-
https://drive.google.com/file/d/1FQiFnJrIdx_6tCn_kEIifwYjaZlxcvB-/view?usp=sharing
 REGISTER HERE– https://docs.google.com/forms/d/e/1FAIpQLSe6R7Ty3D62aSoHvhmTshr28Hxcyb8pvQv_UXC797-Ja73bOQ/viewform

IMPORTANT DATE

Registration Starts: July 20, 2020
Moot Problem Releases: July 20, 2020
Last Date Of Registration: August 5, 2020
Submission Of Memorial: August 22, 2020
Date Of The Competition: August 28-30, 2020
​

MAXIMUM NUMBER OF TEAMS ALLOWED: 20
REGISTRATION ON FIRST COME FIRST SERVED BASIS. (Note that the registration
shall close prior to the date mentioned if the maximum number of teams (20 TEAMS-CAP LIMIT) fills prior to the registration date.

PRIZES

Winner: Prizes worth Rs. 3000+ Certificate of Achievement+ 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.
​
Runner up- Prizes worth Rs. 2000+ Certificate of Achievement + 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.
​
Best Speaker- Prizes worth Rs. 1000+ Certificate of Achievement + 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.
​
Best Memorial- Prizes worth Rs. 1000+ Certificate of Achievement+ 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.
​
Top 8 teams in preliminary rounds: Certificate of Merit+ 20% discount on Courses provided by Memo Pundits
​
Other Participating Teams: Certificate of Participation + 20% discount on Courses provided by Memo Pundits

OFFICIAL LINKS

For more details visit- https://www.lawschole.com/moot
Visit our website on- https://www.lawschole.com/

QUERIES

i) For any queries, you may drop an email at lawschole@gmail.com
ii) You may get in touch at:

  • Siddhi Shubhangi, Convenor, LVMCC, 2020 – +91 9835214477
  • Tanya Shishir, Co-Convenor, LVMCC, 2020 – +91 8009831216

Call for Campus Ambassadors: Kanooniyat – Campus Ambassadors Program (Apply by 03 rd August 2020)

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About Kanooniyat

We at Kanooniyat strive to build a comprehensive database catering to your legal needs. Daily updates in the form of legal news, articles on current general and legal topics, relevant updates for law students and aspirants and various events by Kanooniyat are readily available on our website.

About Kanooniyat – Campus Ambassador Program

We have launched Kanooniyat – Campus Ambassador Program to reach more colleges, universities and students through designated Campus Ambassadors. The aim of the program is to maximize our outreach amongst Law Students while giving the ambassadors an opportunity to inculcate organizational and management capabilities along with professionalism. A Campus Ambassador also has an opportunity to work with various students from colleges spread across India thereby fostering communication and growth. Through Our Campus Ambassador Program, we aim to give the students an opportunity to represent Kanooniyat in their campus.

Click here to apply for Campus Ambassador

Tasks for our Campus Ambassadors

Key tasks of our ambassadors include the following:

  1. Marketers: Promote and market our events and services in
    colleges/universities (online and offline) by circulating our ads, posters and
    videos through email, Whatsapp, Instagram, Facebook, and Twitter.
  2. Representative: Be Kanooniyat’s representative for communication between Kanooniyat and societies of colleges/universities.
  3. College promotion- College promotion includes displaying Kanooniyat’sbanners and posters on notice boards and in college groups to promoteKanooniyat and its events among their peers.
  4. Events- This asks for the joint association of the college & Kanooniyat and the campus ambassador plays an important role in building their relationship with each other. The campus ambassadors will be required to organize events in their college in association with Kanooniyat.
  5. Interviews- Conduct interviews of faculty members, students and legal
    professionals.
  6. Daily tasks assigned by Kanooniyat Team.

More than your skill, we value your will. Apprehensive about whether you will be able to perform certain tasks?
We are here to assist and teach; given you have the will to learn.

Particulars for Kanooniyat – Campus Ambassador Program

Number of Vacancies
We are hiring 2 Campus Ambassadors from Each college/Universities in India.

Location
Work from home

Duration of Work
3 Months

Click here to apply for Campus Ambassador

Eligibility

  1. Student pursuing his/her graduation degree in law.
  2. Proficiency in social media management.

NOTE: Members of Societies in their colleges/universities will be given special
preference.

Perks for our Campus Ambassadors

  1. Certificate of Merit: Campus Ambassadors will receive a Certificate from us which will strengthen their CVs.
  2. Letter of Recommendation: Letter of Recommendations will be given to our best performing Campus Ambassadors.
  3. Performance-based Incentives and Rewards: Incentives can be monetary or otherwise which will be proportionate to your performance.
  4. Considerable Discounts on the Events Organized by Kanooniyat.
  5. Mentoring and career counselling during the period of engagement. (Help in CV Building and Internship Suggestions as per your area of Interest).

We at Kanooniyat firmly believe the idea of having a team working together in co-operation to realize Kanooniyat’s vision and in the process lay extra emphasis on the career and personality development of our team members. Associating with us as a Campus Ambassador will open a myriad of opportunities for you apart from it being agreat learning experience.

When you work with us, you will be a valued member of the team. As a valued member, you earn our assurance of receiving all kind of assistance for your future endeavours.

Application Procedure

Click here to apply for Kanooniyat – Campus Ambassador Program.

Last date of application is 3 rd August. Final Results of the selection will be sent on their respective email id on or before 5 th August.

Contact us

For any Query Please contact us at

Phone No. 7007873010, 8209992708
Email:  kanooniyat@gmail.com

Important Links

Form for applying to Kanooniyat Campus Ambassador Program: Click here
Official page of Kanooniyat Campus Ambassador Program: Click here
Official Website Link: https://kanooniyat.com/

Virtual Moot Court Competition by GD Goenka University: Register through Lexpeeps

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ABOUT THE ORGANIZER

The G. D. Goenka Group is a leading educational setup driven by a passion for excellence in education and quality in life, where Globalization and Internationalization are the buzz words. With 17 years of excellence in the field of education, GD Goenka Group has come a long way since its first school in 1994. The GD Goenka Education City is set on 60 acres with the ancient and picturesque Aravalli hills for a backdrop. The GD Goenka University is guided by the philosophy that new thinking in the areas of teaching, learning, research and training are pivotal to making students tomorrow’s leaders and giving them a world view.

With an unswerving focus on providing quality education, GD Goenka University has engaged the best faculty to guide students, engage their minds and raise their horizon. The University has the best of facilities, equipment including laboratories, dedicated video conference facilities, virtual learning facilities and fully equipped conference rooms. These are all designed to extract the best and most creative qualities from the students. To afford quality education to students, which is along the lines of best of international standards, the University follows an inter-disciplinary approach to education whereby students are encouraged to learn subjects from various disciplines at GDGU. A global connection via a truly international educational institution

IMPORTANT DATES

The final date for Registration-15th July 2020 (23:59 IST)- REGISTRATION STILL OPEN THROUGH LEXPEEPS Contact -admin@lexpeeps.in

Issuing of clarification(if any)21st July 2020

Last date for Submission of Memorial in Softcopy31st July 2020 (23:59 IST)

Last Date for submission of Preliminary round video5th August 2020 (23:59 IST)

TENTATIVE PROGRAM SCHEDULE

Coming Soon

MOOT PREPOSITION

click HereDownload

CONTACT US

G D Goenka Education City
Sohna Gurgaon Road
Sohna, Haryana
India

FOR FURTHER INFORMATION, PLEASE CONTACT

Faculty Advisor, Moot Court Committee School of Law | GDGU

Pankaj Avasthi+91-7665555582

Shreyas Vyas+91-7693015323

Abhinav Kumar+91-8840993730

STUDENT COORDINATORS

Samyak Sharma + 91-7289938118
Vaishali Pooniwala+91 8120939298

For more Information:

WEBSITE LINK

http://www.gdgoenkamootcourt.com/important-dates/

Trespass to Land: Explained

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This article is written by Anushka Singh. She is a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain trespass to land under the tort law.

INTRODUCTION

Trespass can be defined as an unjustifiable interference or an act done with the intention to harm someone’s land. The act of trespass must be direct and intentional. It is not mandatory for the plaintiff to prove that harm was suffered as trespass is actionable per se. Legal maxim ‘Quare clausum fregit’ defines land such that it includes the structures built on it but also the airspace above it and the soil below it. An action for trespass can be claimed if any of these mentioned are infringed. 

Essentials for Trespass to Land

The essentials for trespass to land areas follows-

  • Entry on the land should be made without permission or should be illegal.
  • Entry should not be forced; it should be due to negligence or reasonable mistake but must be voluntary.
  • Entry must be intentional.
  • The land must be owned by the plaintiff.

Therefore, every interference without any legal authority or consent amounts to trespass.

Types of Trespass to land

1. Unauthorized entry to the land

If an individual enters the land owned by someone else without his consent this action will amount to trespass. It remains irrelevant if the defendant’s trespass was a reasonable mistake or was simply negligence, if he committed the trespass voluntarily, he will be held liable.

Cases-

In the case of Basely v. Clarkson, while mowing his lawn the defendant accidentally crossed his boundary and entered his neighbours land, believing it to be his own. The plea of mistake by defendant failed as his entry was voluntary.

In the case of Smith v. Stone, it was held that if person A throws person B on C’s land. Then B will not be held liable for trespass as his entry to C’s land was involuntary.

2. Continued trespass

A person who enters another’s land with his permission but stays on the land after the given permission has expired, commits a trespass. This action will also make his initial entry into the house tortuous in nature and that person can be held liable for all the acts he has subsequently committed after his entry. This is known as trespass ab initio i.e. trespass from the start. 

Cases

In the case of Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath it was held that if the entry on another’s land was made with consent but is subsequently abused and long after that consent has expired, this amounts to trespass ab initio.

In Minister of Health v. Bellotti, an official whose license has expired or terminated can be sued as a trespasser if he does not vacate the said land in a given time.

3. Trespass by interference with others land

Any disturbance or activity which may cause interference with neighbours/others land will also count as trespass. This includes activities like throwing stones, releasing gas/ fumes on neighbour’s land, placing chattels on another’s land, etc. 

Case–

In Abdul Gani v. Sadu Ram and Others, it was held that discharge of filthy water from a tube in the defendant’s house will amount to trespass on plaintiff’s land.

Defences

There are several defences to trespass to land-

  • License

License is when permission to enter the land has been given in an implied manner or expressed manner. The permission can only be given by the person who owns the land. After a license is revoked or expired, the license holder becomes a trespasser if they continue to stay on the land. 

  • Justification by law

In these situations, entry is granted by statutory authorities; permitting an individual to enter someone’s property. 

  • Jus tertii 

In this scenario, the defendant proves that the plaintiff is not the true owner of the land, but instead the land is owned by a third party. This defence is not available if the plaintiff is a tenant living on defendant’s land. And had no right to put the apartment on rent or sublet it unauthorized.

  • Necessity 

Necessity is when the situation calls for a trespass to be committed in order to avoid a bigger accident. Here the trespass is committed intentionally. However, this defence does not allow the defendant to entre another’s persons land if there is an alternative course of action.

Remedies

  • Damages

This remedy allows the plaintiff to claim any damages he may have suffered because of the infringement of his land.

  • Injunction

An injunction is a court order seeking which puts an immediate stop to the infringement of the land. For example- A is the neighbour of B and has 2 kids which keep throwing stones at  B’s windows causing distruction. Here B can get an injunction to stop the trespass by A’s kids.

However, for the plaintiff to avail any of these remedies he has to prove that he was the owner of the land when the trespass was committed or that the land was in his possession. According to Salmond- “the possession of a material object is the continuing exercise of a claim to the exclusive use of it.” It constitutes two elements; ‘animus’ being the mental element and ‘corpus’ being the physical.

Conclusion

Trespass is faced by many people on a daily basis, which is why it is crucial to understand the nature of the trespassed act, the remedies and defences there are. Hence when deciding a trespass of land matter, these four tests should be paid heed to-

(1) What is the character and nature of trespass?

(2) The nature of property should be considered.

(3) The seriousness of the trespass; and 

(4) The impact or consequences of the said trespass on the property.

This would help uncover various sides to the matter and understand all its dimensions. The true meaning and intention need to understood behind these infringements only then proper evaluation and resolving of cases can begin.

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Amendment of Constitution

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This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University.

INTRODUCTION

The formal change within the text of the written constitution of a nation or state is known as Amendment of the Constitution. It means any addition, modification or deletion made to the constitution. Amendment of the constitution means making changes to the nation’s supreme law. 

Any correction, improvement or revision made to the original constitution is largely referred to as amendment of the constitution. 

Why Constitution Amendment is Required?

  • Constitutional amendment is required to repair the loopholes at the time of enactment of the constitution.
  • An amendment is made with a view to beat the difficulties which in future may encounter the working of the constitution. 
  • The leaders and folks would have adhered to some extra-constitutional means like violence, thereby diluting the very constitution per se if there had been no constitutional amendment. 
  • Ideals, vision and priorities of the people differ largely from generation to generation, so as to include them, amendment of the constitution is required. 

Types of Amendment

There are 3 ways by which the constitution can be amended  –

1. Amendment by simple majority of the parliament 

In the Indian Constitution there are a lot of provisions which may be amended by a simple majority of both the houses of parliament .

 Some of these provisions includes – 

1. Use of English Language in Parliament

2. Rules of Procedure in Parliament

3. Admission or establishments of New States

4. Number of Judges in the Supreme Court

5. Union Territories

6. Use of Official Language 

2. Amendment by special majority of the parliament 

Mostly the provisions in the Constitution need to be amended by the special majority of both the houses of parliament, (i.e., more than 50%) of the total of each house and a two-third majority of the members of each house present and voting. 

The provisions which can be amended includes – 

1. Directive Principles of State Policy (DPSP)

2. Fundamental Rights (FR) 

3. Amendment by special majority of parliament and consent of states

Some of these provisions includes –

1. Any list in the seventh schedule . 

2. Supreme Court and High Court 

3. Representation of States in Parliament 

Scope of Amendment in Constitution of India

From the virtue of Article 368, parliament can amend any part of the constitution including the Fundamental Rights (FR), but keeping in mind that the basic structure is not affected. However, what all constitutes in the basic structure is still to be clarified by the Supreme Court of India.

The following has emerged as a basic structure of the constitution from various judgements –

1. Principle of Equality

2. Rule of Law

3. Judicial Review 

4. Free and Fair Elections

5. Independence of Judiciary 

6. Parliamentary System

7. Limited power of Parliament to amend the constitution

8. Sovereign , democratic and republic nature of Indian polity

9. Unity and integrity of the nation 

10. Reasonableness

Some Important Amendment of the Constitution

1. FIRST AMENDMENT , 1951

a) Three grounds of restrictions on freedom of speech and expression were added i.e., friendly relations with foreign states, public order and incitement to an offence. 

b)  To protect the land reform and other laws from judicial review 9TH Schedule was added. 

c) The states were empowered to make the advancement of socially and economically backward classes. 

2. 8TH AMENDMENT ACT , 1960

a) Article 334 of the constitution was amended because of this act. 

b) This amendment extended the term of reservation of seats of the SCs and STs and Anglo-Indians in the Lok Sabha. 

3. 10TH AMENDMENT , 1961 

a) Article 240 of the constitution was amended because of this act. 

b) Inclusion of Dadra and Nagar Haveli as a Union Territory.  

4. 13th AMENDMENT ACT , 1963 

a) Article 120 of the constitution was amended. 

b) Formation of Nagaland as a state, with special protection.

5. 15th AMENDMENT ACT, 1963 

a) Retirement age of High court judges from 60 to 62. 

b) Appointment of retired high court judges as acting judges of the same court. 

c) The retired judge of the high court to act as ad-hoc judge of the supreme court. 

6. 24th AMENDMENT ACT , 1971

a) It was made compulsory for the president to give his approval to a Constitutional Amendment Bill. 

b) Pronounce the power of Parliament to amend any part of the constitution including Fundamental Rights (FR). 

7. 36TH AMENDMENT ACT , 1975 

a) By the virtue of this amendment, Sikkim became the 22nd State of India. 

8. 42nd AMENDMENT ACT , 1976

a) During the period of internal emergency, this amendment was enacted. The amendment was passed by parliament in November 1976 and received Presidential consent in December 1976. 

b) The act also clarified that no questions can be raised in any court of law against any Constitutional Amendment. 

9. 54th AMENDMENT ACT , 1986

a) It talks about the salaries of Judges of both the High Court as well as Supreme Court.    

10. 61st AMENDMENT ACT , 1989

a) This amendment lowered the voting age of Indian Citizens from 21 to 18. 

11. 64th AMENDMENT ACT , 1964 

This amendment increased the President’s rule by six months in Punjab. 

12. 69th AMENDMENT ACT , 1969

Delhi was made the national capital of India. Provisions for legislative assembly and council of ministers was also made by this act. 

13. 93rd AMENDMENT ACT , 2006

It talks about giving 27% reservation for backward classes in private higher educational institutions as well as in government. 

14. 101 AMENDMENT ACT , 2017

This amendment introduced Goods and Service Tax (GST) in the year 2017. 

15. 102 AMENDMENT ACT , 2018 

This amendment provides National Commission for Backward Classes (NCBC) the constitutional status. 

16. 103 AMENDMENT ACT , 2019

This amendment guarantees 10% reservation to Economically Weaker Sections (EWSs).

17 . 104 AMENDMENT ACT , 2020

This amendment increased the reservation of seats for SCs and STs in state assemblies and Lok Sabha. 

Till now, 104 amendments were made in the Indian Constitution since 1950.   

CONCLUSION 

In this article , the author talks about the basic meaning of what the constitution actually is, why is amendment in the constitution required and gives a brief explanation of some important amendments which are made in the constitution till date i.e., till 2020.  

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Eggshell Skull Theory in Tort

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

Synopsis 

This article elucidates to understand the rule of the eggshell skull in tort and the basis on which the rule is applied with different attributes attached to it. 

INTRODUCTION

Erstwhile, there was no principle of civil wrong but the king’s court gave remedies in case of any harm caused. there was no law Under the law of tort, when a person violates or infringes legal rights vested in others, he is said to have committed a civil wrong. When there is injuria sine damnum, that is to say, causation of legal injury without consequential damages, an act of tort is committed. Analytically, the law of tort is part of the law of obligations that if harm is done, the wrongdoer is obligated to compensate. Socially tort is to shift loss sustained to who has caused it or in some cases the loss is spread over a group of persons or even the whole community. 

Eggshell Skull Rule in the Law of Torts

In Civil disputes, the person who suffered legal injury is called the plaintiff and the person who causes it is known as the defendant. If the injury caused results in infringement of the law and if the same is proved by the plaintiff, the defendant is wholly liable. There are exceptions, that is to say, the defendant may not be held liable in cases of volenti non-fit injuria, inevitable accident, an act of God, mistake and in cases of private defenses. Generally, injury cases would be within the contemplation of the parties. But the question of law is whether the defendant is liable for injuries beyond his contemplation? The Egg Shell Skull rule puts down the liability of the defendant in such circumstances. 

The eggshell skull rule is also called “thin skull rule” which says that the frailty of a person to whom the injury is caused shall not be taken as a defense to reduce the liability on the defendant. This means that even in the worst of cases where the injury caused is beyond what was expected, the defendant shall still be liable for all the consequences pertaining to it. The term eggshell means serious head injury or brain damage due to a weaker skull. The defendant cannot argue on the victim’s vulnerability to escape liability. This is a well-established doctrine in the criminal law which says “take your victim as you find him” as said in the case of R v Blause (1975) applies in law of torts without any doubt. This rule applies to all areas of tort including strict liability, negligence, nuisance, trespass and intentional torts. The rule further clears that the tortfeasor need not be in physical contact with the potential victim. For instance, if the tortfeasor trespasses into a house, if that so terrifies the victim leading to a heart attack, the trespasser will be wholly liable. The principle necessitates that the defendant in a civil case shall take full responsibility in compensating regardless of the fact that the victim was susceptible than a normal person may have been. 

Does the victim have a claim? 

The rule of the eggshell skull can be applied and claimed in Court only in the case of physical injuries and not emotional injuries. Should the pre-existing health issue aggravated because of the harm caused negligently by the wrongdoer, they are liable to be claimed from. 

Basis of Eggshell Skull rule

The basis of the rule is that the tortfeasor is responsible for compensating an injured person and to accept him just as he is, including any pre-existing medical conditions that are not visible. There are two situations in eggshell skull rule, that is, intervening causes and issues of comparative negligence. When an intervening cause (that which occurs after committing negligence and breaking the chain of causation) aggravates the existing injury further, the Court may rule such injury as unforeseeable and thus not the responsibility of the defendant. However, the defendant shall not be asked to compensate. 

In a claim for negligence, the Judge should be convinced of the following essentials by the victim – 

  1. that the party at fault owed a duty of care towards him/her;
  2. that the party at faulty has breached his duty of care;
  3. that the breach caused severe injuries; and
  4. damages suffered like medical bills and loss of wages.

The rule protects the victim’s own vulnerability and over which they do not have any control. 

Eggshell Rule v Crumbling Skull Rule

Both the rules deal with cases of victims suffering from pre-existing medical conditions but are separated with a thin line of difference. The basis is stressed upon the stability of the medical conditions. The eggshell skull rule makes the defendant liable even to unforeseen injuries due to pre-existing yet stable medical conditions. The crumbling skull rule is all about is all about unstable medical conditions that the victim would have experienced anyway and need not be the consequence of the defendant’s negligence. The defendant shall not be held liable for such pre-existing damages. The eggshell skull rule is not to be confused with the crumbling skull rule in which the plaintiff suffers from a detrimental position pre-existent to the occurrence of the present port. For instance, if a person has a brittle bone syndrome, he is more likely to suffer from injuries from motor vehicle accidents for the unstable condition he is in. He cannot deny the defense taken in this case.

Voluntary intoxication of the defendant

Voluntary intoxication of any degree constitutes no defense to the commission of a crime. Should a person put himself in a position to not have a limit to his actions, he must be held to intend the consequences. In the case of People v Janiga, the defendant’s voluntary intoxication of methamphetamine, the eggshell argument failed because the plaintiff suffered an injury in a way that doctrine of crumbling skull rule would only apply. 

Conclusion 

When there is a possibility of a victim suffering from unexpected severe injuries that may fall under the eggshell skull rule. The lawyer will present the argument to the Judge and the Judge may decide on a case-to-case basis for the application of the said rule. The final decision remains with the Court of law. 

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Guest Blogs: Invitation to Legal Fraternity- Advocates & Academicians

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JUNE 19th 2020

It takes me immense pleasure to invite all the esteemed members of the Legal Fraternity on behalf of lexpeeps to write blogs with us which we will publish in our “guest blog section”. After the huge success of the “our blogs” section which was dedicated to law students of different law schools and publishing more than 250 well-researched articles,

We are now starting with a section where the Lawyers of the Nation and the Academician connected with the Legal Fraternity will get an opportunity to put up their views more loudly and in front of a larger number of audience.

With Love and Respect

Madhur Rathaur

Founder, Director, CEO

Queries-lexpeeps.in@gmail.com

A Brief Study of Wakf under Muslim Law

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This article is written by Pooja Lakshmi, studying BBA LLB at Bennett University, Greater Noida.

ABSTRACT

The institution of Wakf is a unique characteristic of the socio-economic foundation of Mohammedan law. Wakf means to dedicate or devote a movable or immovable property in Allah’s name for religious, pious, and charitable purposes. The present study is confined to explore Wakf under Muslim law and its emergence. The role of Wakf has been evaluated critically in this article. This article discusses a large variety of ideas on this issue. The wakf laws and the elements concerning it are discussed thoroughly to clarify the topic.

INTRODUCTION

A wakf, under Muslim law, seems to be a religious, spiritual, and pious obligation. However, the provision also includes charities and the advantage of oneself, children, and descendants (alal-aulad).[1] The origin of Wakf is traced to an utterance of the Prophet[2]. In the earlier days of Islam, the law of wakfs suffered from several considerable uncertainties. It was only in the second century after the flight, that a body of rules supporting ijma (consensus) was developed, considered to be the idea of the law of wakfs.

Vast stretches of land and various other forms of properties were dedicated to wakfs everywhere in the Muslim world. In India, there are about 1 lakh wakfs valued at over 100 crore rupees. In the centuries that go behind, not only the land but all the types of property, movable and immovable, were considered the topic matter of wakfs. Within the course time, the Muslim world found that “dead hand” (as wakfs were figuratively called and had become) was trying to strangle all progress and prosperity. Instances of mismanagement of the wakfs are countless; the incompetence and corruption of the mutawallis are appalling and atrocious; more often than not, the properties of the wakfs are squandered away. Under Muslim law, there are several religious institutions for which a wakf can be created. Prominent among them are a mosque, graveyard, dargah, takia, khanqah, and imambara.[3]

Definition

A glance at the word ‘Waqf,’ in its literal sense, remarks it as ‘detention,’ ‘stoppage,’ or ‘tying up.’ Consistent with the legal definition, it means a dedication of some property for a divine purpose in perpetuity. The property so alienated should be available for religious or charitable purposes. Such a property is said to be occupied forever and becomes non-transferable.

It has been observed in the case of M Kazim vs. A Asghar Ali[4], that waqf in its legal sense means the creation of some specific property for the fulfilment of some divine or religious purpose.

S. 2 of the Mussalman Waqf Validating Act 1913 defines waqf as “the permanent dedication of an individual, professing the Mussalman faith of any property for any purpose recognized by  Musalman Law as religious, pious or charitable.” Thus, the aim must be religious, pious, or charitable. The dedication of property must be permanent, and therefore, the usufruct must be utilized for the divine life of humankind.[5]

Wakf Act 1954 defines Wakf as, “the permanent dedication of an individual professing the Islam, of any movable or immovable type of  property for whichever reason recognized by Muslim Law as religious, pious, or charitable.” A waqf is usually made in writing or by a speech.

Modes of Creation of Waqf

Subsequent manners often create waqf-

  1. By an act inter vivos – It means ‘between living voices, i.e., during the lifespan. A waqf under this method is constituted during a lifetime of the waqif and takes effect from that very time.
  2. By will – it is contradictory to the waqf created by an act inter vivos, which implies that it get hold of impact after the death of the waaqif.
  3. During death or illness (marz-ul-maut) – because the gifts are made while the donor is on death bed, it will operate till the extent of one-third of the property without the prior consent of the heirs.
  4. By immemorial user- Waqf property is established by the way of a traditional user. However, limitation of the time also applies to the creation of the waqf.[6]

Kinds of Waqf

Under Muslim Law, waqfs are classified into two categories :

  1. Public waqf – A public waqf is for general, religious, or charitable purposes.
  2. Private waqf – it is for the settlor’s family and descendants, and is technically called waqf-ulal-aulad. However, it is also a way of family settlement.[7]

Essentials of Waqf

The essentials of a legitimate waqf consistent with the Hanafi School (Sunni Law) are as follows:

  1. Permanent dedication of any property – The commitment of property for waqf must be lifelong. Moreover, the waaqif himself devotes property such as religious, charitable, or pious for the recognized causes. If waqf made by a waaqif is for a finite period, then such waqf is not a legitimate one, and also, there must not be any condition or contingency attached; otherwise, it will become void or invalid. Additionally, in Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed[8], the house was dedicated by a Muslim solely for the utilization of it by the travelers regardless of their religion and standing. The Court stated that it was not a waqf as under Muslim Law, a Waqf should have a religious and pious reason, and it must be for the advantage of Muslim community only. If it is secular, then the charity should be for the poor only.
  2. Competency of Waqf – The dedicator (waaqif) should be an individual professing Mussalman faith and having a sound mind, and must not be a minor or a lunatic.
  3. For any purpose recognized by Muslim Law – this can also be called the object of waqf. Thus, the third essential of a legitimate waqf is that the dedication should be for a purpose recognized as religious, pious, or charitable under Muslim Law.

The ‘Sharya-ul-Islam’ brings up mainly five types of conditions required within the subject of waqf that incorporates:

  1. According to Sunni law, it must be everlasting or perpetual.
  2. It must always be absolute and unconditional.
  3. The possession or ownership must be given for the thing appropriated (unlike Sunni law where a mere declaration is enough).
  4. It must be taken out of waaqif. It implies that the waaqif should not reserve any right or interest or the usufruct of the dedicated property.
  5. Absoluteness – The agreement of the property in waqf is fixed or absolute. A conditional or contingent waqf is void or invalid.[9]

Three main elements of Waqf

  • Ownership of God
  • The extinction of the founder’s right
  • The benefit of mankind

Completion of Waqf

Two angles of completing a Waqf are-

1. Where another person is appointed because of the first mutawalli.

2. Where the founder constitutes himself as initial mutawalli, i.e., manager or superintendent.[10]

Governance of Waqf Property

The Waqf property is governed and protected by Official Trustees Act II of 1913, Charitable Endowments Act VI of 1890, Religious Endowments Act XX of 1863 (Section 14), The Code of Civil Procedure 1908 (Sections 92-93), andCharitable and Religious Trusts Act XIV of 1920.[11]

CONCLUSION

Wakf is a kind of creation or formation of property for religious or charitable deeds established forever. It also has the backing of law that is binding as well as enforceable in nature. If an individual is of the perspective that his right has been infringed or taken away, then the person, if wish, can seek remedy from the Civil Court. The powers, concept, and duties of mutawalli are of considerable significance under the subject of waqf. Such powers can only be used if there exists a transparent vacancy for the post of the mutawalli, or just in case of a dispute on the competence or eligibility of existing mutawalli.

REFERENCES

  • Anchal Chhallani, Wakf Board Land Scam, The Company Ninja.
  • Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control
  • Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control and Registration, LEGALBITES
  • M Kazim vs A Asghar Ali AIR 1932 11 Patna 238.
  • Kani Ammal vs. Tamil Nadu Wakf Board [1983 AP 188]
  • Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis,  Our Legal World
  • Madhubala Solanki, concept of Wakf in muslim law,
  • Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed AIR 1982 Kant 309, 1982 (2) KarLJ 176
  • Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis – Our Legal World.
  • Hitaishee , Concept And Essentials of A Valid WAKF, legalserviceindia , Law of Waqf.
  • V. Hariharan,Actions that can be taken for/against a Waqf property in India, lawtimesjournal.

[1] Anchal Chhallani, Wakf Board Land Scam, The Company Ninja. https://thecompany.ninja/wakf-board-land-scam/

[2] Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control and …. https://www.legalbites.in/muslim-law-notes-wakf-concept/

[3] Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control and Registration, LEGALBITES, https://www.legalbites.in/muslim-law-notes-wakf-concept/

[4] M Kazim vs A Asghar Ali AIR 1932 11 Patna 238.

[5] Kani Ammal vs. Tamil Nadu Wakf Board [1983 AP 188]

[6] Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis,  Our Legal World,  https://www.ourlegalworld.com/waqf-under-muslim-law-analysis/

[7] Madhubala Solanki,LAWCTOPUS, concept of wakf in muslim law, https://www.lawctopus.com/academike/concept-waqf-muslim-law/

[8] Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed AIR 1982 Kant 309, 1982 (2) KarLJ 176.

[9] Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis – Our Legal World. https://www.ourlegalworld.com/waqf-under-muslim-law-analysis/

[10] Hitaishee , Concept And Essentials of A Valid WAKF, legalserviceindia , Law of Waqf. http://legalserviceindia.com/legal/article-2057-law-of-waqf.html

[11] V Hariharan, Actions that can be taken for/against a Waqf property in India, lawtimesjournal,  http://lawtimesjournal.in/actions-that-can-be-taken-for-against-a-waqf-property-in-india/#_ftn1            

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