RIGHT OF PERSON ARRESTED TO BE INFORMED OF THE GROUNDS OF ARREST

According to Section 50 of Code of Criminal Procedure, 1973, When a person is arrested without warrant, he should be IMMEDIATELY informed of the particulars of the offence and the grounds of his arrest. And where the offence is a bailable one, he should be informed of his Right to be Released on Bail.

This provision confers a valuable right and non-compliance with it amounts to disregard of the procedure established by law.

The allegation that the grounds of arrest or its particulars were not given would be enough to enable him to file a writ petition of Habeas Corpus. Provided that the person making such allegations should prove his allegations.

Making known his grounds of arrest is a constitutional requirement and failure to comply with this requirement renders the arrest illegal.

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THE SPECIFIC RELIEF ACT, 1963

The Specific Relief Act, 1963

CHAPTER I PRELIMINARY
CHAPTER I RECOVERING POSSESSION OF PROPERTY
CHAPTER II SPECIFIC PERFORMANCE OF CONTRACTS
CHAPTER III RECTIFICATION OF INSTRUMENTS
CHAPTER IV RESCISSION OF CONTRACTS
CHAPTER V CANCELLATION OF INSTRUMENTS
CHAPTER VI DECLARATORY DECREES
CHAPTER VII INJUNCTIONS GENERALLY
CHAPTER VIII PERPETUAL INJUNCTIONS

PART I
PRELIMINARY

1.Short title, extent and commencement.
1. Short title, extent and commencement.- (1) This Act may be called the Specific Relief Act,
1963.(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date 1* as the Central
Government may, by notification in the Official Gazette, appoint.

2.Definitions.
2. Definitions.- In this Act, unless the context otherwise requires,-
(a) "obligation" includes every duty enforceable by law;
(b) "settlement" means an instrument (other than a will or codicil as defined by the Indian
Succession Act, 1925.(39 of 1925)) whereby the destination or devolution of successive
interests in movable or immovable property is disposed of or is agreed to be disposed of;
(c) "trust" has the same meaning as in section 3 of the
Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within
the meaning of Chapter IX of that Act;
(d) "trustee" includes every person holding property in trust;
(e) all other words and expressions used herein but not defined, and defined in the Indian
Contract Act, 1872.(9 of 1872), have the meanings respectively assigned to them in that Act.

3.Savings.
3. Savings.- Except as otherwise provided herein, nothing in this
Act shall be deemed-
(a) to deprive any person of any right to relief, other than specific performance, which he
may have under any contract; or
---------------------------------------------------------------------
1 1st March, 1964; vide Notification No. S.O. 189, dated 13-1-1964, Gazette of India, Pt. II,
Sec. 3 (ii), p. 214.The Act shall come into force in the State of Sikkim on 1.9.1984.vide
Notifn. No. S.O.648 (E), dt. 24.8.84, Gaz. of India, Exty.
Pt. II, Sec. 3 (ii).
616.(b) to affect the operation of the Indian Registration Act,
1908 (16 of 1908), on documents.

4.Specific relief to be granted only for enforcing individual civilrights and not for enforcing
penal laws.
4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing
penal laws.-Specific relief can be granted only for the purpose of enforcing individual civil
rights and not for the mere purpose of enforcing a penal law.

CHAPTER I
RECOVERING POSSESSION OF PROPERTY

5.Recovery of specific immovable property.
5. Recovery of specific immovable property.-A person entitled to the possession of specific
immovable property may recover it in the manner provided by the Code of Civil Procedure,
1908 (5 of 1908).

6.Suit by person dispossessed of immovable property.
6. Suit by person dispossessed of immovable property.-(1) If any person is dispossessed
without his consent of immovable property otherwise than in due course of law, he or any
person claiming through him may, by suit, recover possession thereof, notwithstanding any
other title that may be set up in such suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this
section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.

7.Recovery of specific movable property.
7. Recovery of specific movable property.- A person entitled to the possession of specific
movable property may recover it in the manner provided by the Code of Civil Procedure,
1908 (5 of 1908).
Explanation 1.-A trustee may sue under this section for the possession of movable property
to the beneficial interest in which the person for whom he is trustee is entitled.
.Explanation 2.-A special or temporary right to the present possession of movable
property is sufficient to support a suit under this section.

8.Liability of person in possession, not as owner, to deliver to personsentitled to immediate
possession.
8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate
possession.- Any person having the possession or control of a particular article of movable
property, of which he is not the owner, may be compelled specifically to deliver it to the
person entitled to its immediate possession, in any of the following cases:-
(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of
the thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the
plaintiff.
Explanation.-Unless and until the contrary is proved, the court shall, in respect of any article
of movable property claimed under clause (b) or clause (c) of this section, presume-
(a) that compensation in money would not afford the plaintiff adequate relief for the loss of
the thing claimed, or, as the case may be;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.

CHAPTER II
SPECIFIC PERFORMANCE OF CONTRACTS

9.Defences respecting suits for relief based on contract.
9. Defences respecting suits for relief based on contract.-Except as otherwise provided
herein, where any relief is claimed under this
Chapter in respect of a contract, the person against whom the relief is claimed may plead by
way of defence any ground which is available to him under any law relating to contracts.

CONTRACTS WHICH CAN BE SPECIFICALLY ENFORCED

10.Cases in which specific performance of contract enforceable.
10. Cases in which specific performance of contract enforceable.-
Except as otherwise provided in this Chapter, the specific performance of any contract may,
in the discretion of the court, be enforced-
(a) when there exists no standard for ascertaining the actual damage caused by the nonperformance
of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its nonperformance
would not afford adequate relief.
Explanation.-Unless and until the contrary is proved, the court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately
relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the
following cases:-
(a) where the property is not an ordinary article of commerce, or is of special value or
interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

11.Cases in which specific performance of contracts connected with trusts enforceable.
11. Cases in which specific performance of contracts connected with trusts enforceable.-(1)
Except as otherwise provided in this Act, specific performance of a contract may, in the
discretion of the court, be enforced when the act agreed to be done is in the performance
wholly or partly of a trust.
(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be
specifically enforced.

12.Specific performance of part of contract.
12. Specific performance of part of contract.- (1) Except as otherwise hereinafter provided in
this section, the court shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part
which must be left unperformed bears only a small proportion to the whole in value and
admits of compensation in money, the court may, at the suit of either party, direct the
specific performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part
which must be left unperformed either-
(a) forms a considerable part of the whole, though admiting of compensation in money; or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but the court may, at the
suit of the other party, direct the party in default to perform specifically so much of his part of
the contract as he can perform, if the other party-
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole
of the contract reduced by the consideration for the part which must be left unperformed and
in a case falling under clause
(b), 1*[pays or has paid] the consideration for the whole of the contract without any
abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the
contract and all right to compensation, either for the deficiency or for the loss or damage
sustained by him through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically
performed, stands on a separate and independent footing from another part of the same
contract which cannot or ought not to be specifically performed, the court may direct specific
performance of the former part.
Explanation.-For the purposes of this section, a party to a contract shall be deemed to be
unable to perform the whole of his part of it if a portion of its subject-matter existing at the
date of the contract has ceased to exist at the time of its performance.

13.Rights of purchaser or lessee against person with no title or imperfect title.
13. Rights of purchaser or lessee against person with no title or imperfect title.
 (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect
title, the purchaser or lessee (subject to the other provisions of this
Chapter), has the following rights, namely:-
(a) if the vendor or lessor has subsequently to the contract acquired any interest in the
property, the purchaser or lessee may compel him to make good the contract out of such
interest;
(b) where the concurrence of other persons is necessary for validating the title, and they are
bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel
him to procure such concurrence, and when a conveyance by other persons is necessary to
validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;
(c) where the vendor professes to sell unencumbered property, but the property is
mortgaged for an amount not exceeding the purchase money and the vendor has in fact only
a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a
valid discharge, and, where necessary, also a conveyance from the mortgagee;
(d) where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to a
return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for
such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property
which is the subject-matter of the contract.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the
sale or hire of movable property.

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

14.Contracts not specifically enforceable.
14. Contracts not specifically enforceable.-(1) The following contracts cannot be specifically
enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate
relief;
(b) a contract which runs into such minute or numerous details or which is so dependent on
the personal qualifications or volition of the parties, or otherwise from its nature is such, that
the court cannot enforce specific performance of its material terms;
(c) a contract which is in its nature determinable;
(d) a contract the performance of which involves the performance of a continuous duty which
the court cannot supervise.
(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or
future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract
shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause
(c) or clause (d) of sub-section (1), the court may enforce specific performance in the
following cases:-
(a) where the suit is for the enforcement of a contract,-
(i) to execute a mortgage or furnish any other security for security for securing the
repayment of any loan which the borrower is not willing to repay at once:
Provided that where only a part of the loan has been advanced the lender is willing to
advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,-
(i) the execution of a formal deed of partnership, the parties having commenced to carry on
the business of the partnership; or
(ii) the purchase of a share of a partner in a firm,
(c) where the suit is for the enforcement of a contract for the construction of any building or
the execution of any other work on land:
Provided that the following conditions are fulfilled, namely:-
(i) the building or other work is described in the contract in terms sufficiently precise to
enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is
of such a nature that compensation in money for non-performance of the contract is not an
adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any
part of the land on which the building is to be constructed or other work is to be executed.

PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY
ENFORCED

15.Who may obtain specific performance.
15. Who may obtain specific performance.- Except as otherwise provided by this Chapter,
the specific performance of a contract may be obtained by-
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his interest shall not
be assigned, his representative in interest of his principal shall not be entitled to specific
performance of the contract, unless such party has already performed his part of the
contract, or the performance thereof by his representative in interest, or his principal, has
been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights
between members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power,
the remainderman;
(e) a reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner
is entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated
with another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract
for the purposes of the company, and such contract is warranted by the terms of the
incorporation, the company:
Provided that the company has accepted the contract and has communicated such
acceptance to the other party to the contract.

16.Personal bars to relief.
16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour
of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract
that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at
variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing
to perform the essential terms of the contract which are to be performed by him, other than
terms the performance of which has been prevented or waived by the defendant.
Explanation.-For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in court any money except when so directed by
the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the
contract according to its true construction.

17.Contract to sell or let property by one who has no title, notspecifically enforceable.
17. Contract to sell or let property by one who has no title, not specifically enforceable.- (1) A
contract to sell or let any immovable property cannot be specifically enforced in favour of a
vendor or lessor-
(a) who, knowing himself not to have any title to the property, has contracted to sell or let the
property;
(b) who, though he entered into the contract believing that he had a good title to the
property, cannot at the time fixed by the parties or by the court for the completion of the sale
or letting, give the purchaser or lessee a title free from reasonable doubt.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the
sale or hire of movable property.

18.Non-enforcement except with variation.
18. Non-enforcement except with variation.- Where a plaintiff seeks specific performance of
a contract in writing, to which the defendant sets up a variation, the plaintiff
cannot obtain the performance sought, except with the variation so set up, in the
following cases, namely:-
(a) where by fraud, mistake of fact or mis-representation, the written contract of which
performance is sought is in its terms or effect different from what the parties agreed to, or
does not contain all the terms agreed to between the parties on the basis of which the
defendant entered into the contract;
(b) where the object of the parties was to produce a certain legal result which the contract as
framed is not calculated to produce;
(c) where the parties have, subsequently to the execution of the contract, varied its terms.

19.Relief against parties and persons claiming under them by subsequent title.
19. Relief against parties and persons claiming under them by subsequent title.- Except as
otherwise provided by this Chapter, specific performance of a contract may be enforced
against-
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract,
except a transferee for value who has paid his money in good faith and without notice of the
original contract;
(c) any person claiming under a title which, though prior to the contract and known to the
plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated
with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract
for the purpose of the company and such contract is warranted by the terms of the
incorporation, the company:
Provided that the company has accepted the contract and communicated such acceptance
to the other party to the contract.

DISCRETION AND POWERS OF COURT

20.Discretion as to decreeing specific performance.
20. Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific
performance is discretionary, and the court is not bound to grant such relief merely because
it is lawful to do so; but the discretion of the court is not arbitary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree
specific performance  (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such
that the contract, though not voidable, gives the plaintiff an unfair advantage over the
defendant; or
(b) where the performance of the contract would involve some hardship on the defendant
which he did not foresee, whereas its non-performance would involve no such hardship on
the plaintiff;
(c) where the defendant entered into the contract under circumstances which though not
rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is
onerous to the defendant or improvident in its nature, shall not be deemed to constitute an
unfair advantage within the meaning of clause (a) or hardship within the meaning of clause
(b).
Explanation 2.-The question whether the performance of a contract would involve hardship
on the defendant within the meaning of clause (b) shall, except in cases where the hardship
has resulted from any act of the plaintiff subsequent to the contract, be determined with
reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case
where the plaintiff has done substantial acts or suffered losses in consequence of a contract
capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the
ground that the contract is not enforceable at the instance of the other party.

21.Power to award compensation in certain cases.
21. Power to award compensation in certain cases.-(1) In a suit for specific performance of a
contract, the plaintiff may also claim compensation for its breach, either in addition to, or in
substitution of, such performance.
(2) If, in any such suit, the court decides that specific performance ought not to be
granted, but that there is a contract between the parties which has been broken by the
defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him
such compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought to be granted, but
that is not sufficient to satisfy the justice of the case, and that some compensation for breach
of the contract should also be made to the plaintiff, it shall award him such compensation
accordingly.
(4) In determining the amount of any compensation awarded under this section, the court
shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of
1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed
such compensation in his plaint:
Provided that where the plaintiff has not claimed any such compensation in the plaint, the
court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as
may be just, for including a claim for such compensation.
Explanation.-The circumstance that the contract has become incapable of specific
performance does not preclude the court from exercising the jurisdiction conferred by this
section.

22.Power to grant relief for possession, partition, refund of earnest money, etc.
22. Power to grant relief for possession, partition, refund of earnest money, etc.-(1)
Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5
of 1908), any person suing for the specific performance of a contract for the transfer of
immovable property may, in an appropriate case, ask for-
(a) possession, or partition and separate possession, of the property, in addition to such
performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or
deposit paid or
1*[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1)
shall be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall,
at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without
prejudice to its powers to award compensation under section 21.23.Liquidation of damages
not a bar to specific performance.

23. Liquidation of damages not a bar to specific performance.-(1)
A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum
be named in it as the amount to be paid in case of its breach and the party in default is
willing to pay the same, if the court, having regard to the terms of the contract and other
attending circumstances, is satisfied that the sum was named only for the purpose of
securing performance of the contract and not for the purpose of giving to the party in default
an option of paying money in lieu of specific performance.
(2) When enforcing specific performance under this section, the court shall not also decree
payment of the sum so named in the contract.

24.Bar of suit for compensation for breach after dismissal of suit for specific performance.
24. Bar of suit for compensation for breach after dismissal of suit for specific performance.-
The dismissal of a suit for specific performance of a contract or part thereof shall bar the
plaintiffs right to sue for compensation for the breach of such contract or part, as the case
may be, but shall not bar his right to sue for any other relief to which he may be entitled, by
reason of such breach.

ENFORCEMENT OF AWARDS AND DIRECTIONS TO EXECUTE SETTLEMENTS

25.Application of preceding sections to certain awards and testamentary directions to
execute settlements.
25. Application of preceding sections to certain awards and testamentary directions to
execute settlements.-The provisions of this
Chapter as to contracts shall apply to awards to which the Arbitration
Act, 1940 (10 of 1940), does not apply and to directions in a will or codicil to execute a
particular settlement.

CHAPTER III
RECTIFICATION OF INSTRUMENTS

26.When instrument may be rectified.
26. When instrument may be rectified.-(1) When, through fraud or a mutual mistake of the
parties, a contract or other instrument in writing (not being the articles
628.of association of a company to which the Companies Act, 1956 (1 of
1956), applies) does not express their real intention, then-
(a) either party or his representative in interest may institute a suit to have the instrument
rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue,
claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause
(b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under subsection
(1), the court finds that the instrument, through fraud or mistake, does not express
the real intention of the parties, the court may, in its discretion, direct rectification of the
instrument so as to express that intention, so far as this can be done without prejudice to
rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has
so prayed in his pleading and the court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this
section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall,
at any stage of the proceeding, allow him to amend the pleading on such terms as may be
just for including such claim.

CHAPTER IV
RESCISSION OF CONTRACTS
27.When rescission may be adjudged or refused.
27. When rescission may be adjudged or refused.-(1) Any person interested in a contract
may sue to have it rescinded, and such rescission may be adjudged by the court in any of
the following cases, namely:-
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face and the defendant is
more to blame than the plaintiff.
629.(2) Notwithstanding anything contained in sub-section (1), the court may refuse to
rescind the contract-
(a) where the plaintiff has expressly or impliedly ratified the contract; or
(b) where, owing to the change of circumstances which has taken place since the making of
the contract (not being due to any act of the defendant himself), the parties cannot be
substantially restored to the position in which they stood when the contract was made; or
(c) where third parties have, during the subsistence of the contract, acquired rights in good
faith without notice and for value; or
(d) where only a part of the contract is sought to be rescinded and such part is not severable
from the rest of the contract.
Explanation.-In this section "contract", in relation to the territories to which the Transfer of
Property Act, 1882 (4 of 1882), does not extend, means a contract in writing.

28.Rescission in certain circumstances of contracts for the sale or leaseof immovable
property, the specific performance of which has been decreed.
28. Rescission in certain circumstances of contracts for the sale or lease of immovable
property, the specific performance of which has been decreed.- (1) Where in any suit a
decree for specific performance of a contract for the sale or lease of immovable property has
been made and the purchaser or lessee does not, within the period allowed by the decree or
such further period as the court may allow, pay the purchase money or other sum which the
court has ordered him to pay, the vendor or lessor may apply in the same suit in which the
decree is made, to have the contract rescinded and on such application the court may, by
order, rescind the contract either so far as egards the party in default or altogether, as the
justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the court(
a) shall direct the purchaser or the lessee, if he has obtained possession of the property
under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have
accrued in respect of the property from the date on which possession was so obtained by
the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the
justice of the case so requires, the refund of any sum paid by the vendee or
lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to
pay under the decree within the period referred to in sub-section (1), the court may, on
application made in the same suit, award the purchaser or lessee such further relief as he
may be entitled to, including in appropriate cases all or any of the following reliefs, namely:-
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie
at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the court.

29.Alternative prayer for rescission in suit for specific performance.
29. Alternative prayer for rescission in suit for specific performance.- A plaintiff instituting a
suit for the specific performance of a contract in writing may pray in the alternative that, if the
contract cannot be specifically enforced, it may be rescinded and delivered up to be
cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be
rescinded and delivered up accordingly.
30.
Court may require parties rescinding to do equity.
30. Court may require parties rescinding to do equity.- On adjudging the rescission of a
contract, the court may require the party to whom such relief is granted to restore, so far as
may be, any benefit which he may have received from the other party and to make any
compensation to him which justice may require.

CHAPTER V
CANCELLATION OF INSTRUMENTS
31.When cancellation may be ordered.
31. When cancellation may be ordered.-(1) Any person against whom a written instrument is
void or voidable, and who has reasonable apprehension that such instrument, if left
outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and
the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
631.(2) If the instrument has been registered under the Indian
Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the
officer in whose office the instrument has been so registered; and such officer shall note on
the copy of the instrument contained in his books the fact of its cancellation.

32.What instruments may be partially cancelled.
32. What instruments may be partially cancelled.- Where an instrument is evidence of
different rights or different obligations, the court may, in a proper case, cancel it in part and
allow it to stand for the residue.

33.Power to require benefit to be restored or compensation to be madewhen instrument is
cancelled or is succesfully resisted as being voidor voidable.
33. Power to require benefit to be restored or compensation to be made when instrument is
cancelled or is succesfully resisted as being void or voidable.-(1) On adjudging the
cancellation of an instrument, the court may require the party to whom such relief is granted,
to restore, so far as may be any benefit which he may have received from the other party
and to make any compensation to him which justice may require.
(2) Where a defendant successfully resists any suit on the ground-
(a) that the instrument sought to be enforced against him in the suit is voidable, the court
may if the defendant has received any benefit under the instrument from the other party,
require him to restore, so far as may be, such benefit to that party or to make compensation
for it;
(b) that the agreement sought to be enforced against him in the suit is void by reason of his
not having been competent to contract under section 11 of the Indian
Contract Act, 1872 (9 of 1872), the court may, if the defendant has received any benefit
under the agreement from the other party, require him to restore, so far as may be, such
benefit to that party, to the extent to which he or his estate has benefited thereby.

CHAPTER VI
DECLARATORY DECREES

34.Discretion of court as to declaration of status or right.
34. Discretion of court as to declaration of status or right.-Any person entitled to any legal
character, or to any right as to any property, may institute a suit against any person denying,
or interested to deny, his title to such character or right, and the court may in its discretion
make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for
any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to
seek further relief than a mere declaration of title, omits to do so.
Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title
of some one who is not in existence, and for whom, if in existence, he would be a trustee.

35.Effect of declaration.
35. Effect of declaration.-A declaration made under this Chapter is binding only on the
parties to the suit, persons claiming through them respectively, and, where any of the parties
are trustees, on the persons for whom, if in existence at the date of the declaration, such
parties would be trustees.

CHAPTER VII
INJUNCTIONS GENERALLY

36.Preventive relief how granted.
36. Preventive relief how granted.-Preventive relief is granted at the discretion of the court by
injunction, temporary or perpetual.

37.Temporary and perpetual injunctions.
37. Temporary and perpetual injunctions.- (1) Temporary injunctions are such as are to
continue until a specified time, or until the further order of the court, and they may be granted
at any stage of a suit, and are regulated by the Code of Civil Procedure,
1908 (5 of 1908).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon
the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a
right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

CHAPTER VIII
PERPETUAL INJUNCTIONS

38.Perpetual injunction when granted.
38. Perpetual injunction when granted.-(1) Subject to the other provisions contained in or
referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent
the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules
and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of,
property, the court may grant a perpetual injunction in the following cases, namely:-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39.Mandatory injunctions.
39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to
compel the performance of certain acts which the court is capable of enforcing, the court
may in its discretion grant an injunction to prevent the breach complained of, and also to
compel performance of the requisite acts.

40.
Damages in lieu of, or in addition to, injunction.
40. Damages in lieu of, or in addition to, injunction.-(1) The plaintiff in a suit for perpetual
injunction under section 38, or mandatory injunction under section 39, may claim damages
either in addition to, or in substitution for, such injunction and the court may, if it thinks fit,
award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has claimed
such relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the court shall, at
any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be
just for including such claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the
plaintiff shall bar his right to sue for damages for such breach.

41.Injunction when refused.
41. Injunction when refused.-An injunction cannot be granted-
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of
the suit in which the
634.injunction is sought, unless such restraint is necessary to prevent a multiplicity of
proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not
subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically
enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will
be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the court;
(j) when the plaintiff has no personal interest in the matter.

42.Injunction to perform negative agreement.
42. Injunction to perform negative agreement.- Notwithstanding anything contained in clause
(e) of section 41, where a contract comprises an affirmative agreement to do a certain act,
coupled with a negative agreement, express or implied, not to do a certain act, the
circumstance that the court is unable to compel specific performance of the affirmative
agreement shall not preclude it from granting an injunction to perform the negative
agreement:
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.
43.[Repealed.]
43. [Amendment of Act 10 of 1940.] Rep. by Act 56 of 1974, s. 2.and Sch. I.
44.[Repealed.]
44. [Repeal] Rep. by s. 2 and Sch. I, ibid.

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PART III OF INDIAN CONSTITUTION

SOME OF THE ARTICLES OF PART III OF THE CONSTITUTION OF INDIA

FUNDAMENTAL RIGHTS

Part III Fundamental Rights 

Article 12 Definition

In this Part, unless the context otherwise required, "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
***
Article 14  Right to equality
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 16 Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Article 17 Abolition of Untouchability
"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law.
***
Article 19 Freedom of speech and expression

(1) All citizens shall have the right -
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Schedule Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, -
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
***
Article 21 Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 22 Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply -
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless -
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

{...}
Article 32 Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

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Transfer of property by persons having distinct interests

SECTION 46 OF TRANSFER OF PROPERTY ACT




Suppose more than one person have distinct shares in an immovable property and such property is transferred,
1)  if the transferors have interests of equal value in the property, then all of them are entitled to equal share in the consideration
2) if the transferors have interests of unequal value in the property, then the consideration is to be proportionately divided between them, based on the value of their  interests.

Subjected to the provision that there is no contract to the contrary.


Example: Suppose A owns certain immovable property X
               B and C owns 1/4th share each in certain property Y
               B and C together exchange 1/4th share of their total shares in property Y with 1/8th share of A in                  property X.
               Then,
                As share in Y= 1/4 * (Bs share in Y+Cs share in Y)
                                     = 1/16th value in Y + 1/16th value in Y
                         
                                     =1/8 th share in Y
                 B+C share in X = 1/8 * X
                  B and C are entitled to equal consideration since they have interests of equal value in property Y
                  Therefore each of them are entitled to half of 1/8th share of A in property X
                 i.e Bs share is 1/2 * 1/8 of X = 1/16th of X
                Similarly, Cs is entitled to 1/16th of X

   
Suppose in the above example if B and C have unequal interests in property Y, lets say that B have 1/4th share and C have 1/2 share in Y
         Then on exchange of 1/8th X by A with 1/4th  share Y by B+C,
         A is entitled to (1/16 + 1/8) of Y i.e 3/16th share of property Y

         B is entitled to 1/24th share in X and C is entitled to 1/12th share in X
         i.e they are proportionately entitled to share in the total consideration to their respective interests.

                 

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Analysis of Section 89 CPC 1908and its Scheme

Analysis of Section 89 CPC 1908and its Scheme

 By the Code of Civil Procedure (Amendment) Act 1999, section 89 had been introduced 
in the Code of Civil Procedure, 1908 and it became effective from 01-07-2002. Section 89 of the 
CPC reads as under:
“89. Settlement of disputes outside the Court.-
(1)Where it appears to the court that
there exist elements of a settlement which may be acceptable to the parties, the courtshall
formulate the terms of settlement and give them to the parties for their observations and
after receiving the observations of the parties, the court may reformulate the terms of a
possible settlement and refer the same for –
a) arbitration;
b) conciliation;
c) judicial settlement including settlement through Lok Adalat; or
d) mediation

(2) Where a dispute has been referred-
(a) for arbitration or conciliation, the provisions of the Arbitration and
Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance
with the provisions of sub-section (1) of section 20 of the Legal Services
Authorities Act, 1987 and all other provisions of that Act shall apply in respect of
the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or
person and such institution or person shall be deemed to be a Lok Adalat and all
the provisions of the Legal Services Authorities Act, 1987 shall apply as if the
dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and
shall follow such procedure as may be prescribed.”

The objective of Section 89 is to ensure that the court makes an endeavor to facilitate
out-of-court settlements through one of the ADR processes before the trial commences.

 The related provisions which were incorporated by the same amendment Act are those 
contained in Rules 1A, 1B and 1C of Order X, CPC, which are extracted hereunder:

“1A. Direction of the Court to opt for any one mode of alternative dispute 
resolution.—
After recording the admissions and denials, the courtshall direct the parties
to suit to opt either mode of the settlement outside the court as specified in sub-section
(1) of section 89. On the option of the parties, the court shall fix the date of appearance
before such forum or authority as may be opted by the parties.”
“1B. Appearance before the conciliatory forum or authority.–
where a suit is referred
under rule 1A, the parties shall appear before such forum or authority for conciliation of
the suit.”
“1C. Appearance before the Court consequent to the failure of efforts of 
conciliation.-
Where a suit is referred under rule 1A and the forum or authority to whom
the matter has been referred is satisfied that it would not be proper in the interest of
justice to proceed with the matter further, then it shall refer the matter again to the court
and direct the parties to appear before the court on the date fixed by it.”

 With the introduction of these provisions, a mandatory duty has been cast on the civil
courts to endeavour for settlement of disputes by relegating the parties to an ADR process.
Five ADR methods are referred to in section 89. They are:
(a) Arbitration,
 (b) Conciliation,
 (c) Judicial settlement,
 (d) Settlement through Lok Adalat, and
 (e) Mediation.

 Arbitration as well as Conciliation are governed by the Arbitration and Conciliation Act,
1996 (“AC” Act, for short) which superseded the previous Arbitration Act of 1940. The
arbitration unlike conciliation is an adjudicatory process. Once a civil dispute is referred to
arbitration, the case will go outside the stream of the court permanently and will not come back
to the court. However, in contrast, a dispute referred to conciliation which is a non-adjudicatory
process, does not go out of the domain of the court-process permanently. If there is no amicable
settlement, the matter reverts back to the court which has to proceed with the trial after framing
issues. The reference to arbitration or conciliation is only possible if there is consent of the
parties. In the absence of consent, the court cannot on its own refer the parties to arbitration or
conciliation.
This legal position is no longer in doubt in view of the recent judgment of Supreme 
Court in Afcons Infrastructure Ltd. Vs. Cherian Varkey Consturction Co. (P) Ltd.
In the case of arbitration, if there is no pre-existing arbitration agreement, the parties to suit can agree for
arbitration by filing a joint memo or application and the court can then refer the matter to
arbitration and such arbitration will be governed by the provisions of the AC Act. The award of
the arbitrators is binding on the parties and is enforceable as if it is a decree of the court, in view
of what has been said in section 36 of the AC Act. If any settlement is reached in the arbitration
proceedings, then the award passed by the arbitrator on the basis of such agreed terms will have
the same status and effect as any other arbitral award, vide section 30 of the AC Act.

When the matter is settled through conciliation, the settlement agreement shall have the
same status and effect as if it is an arbitral award (vide Section 74 of AC Act) and therefore it is
enforceable as a decree of the court by virtue of section 36 of the AC Act. Similarly, when a
settlement takes place before the Lok Adalat, the award of the Lok Adalat is deemed to be a
decree of a civil court under section 21 of the Legal Services Authorities Act, 1987 (for short,
“LSA Act”) and executable as such.

Coming to mediation, there is practically no difference between conciliation and
mediation and quite often they are used as inter-changeable terms. Mediation is aimed at
conciliation and conciliation has the elements of mediation.

Judicial settlement means a compromise entered by the parties with the assistance of the
court adjudicating the matter or another judge to whom the court had referred the dispute. In
Black’s Law Dictionary, “judicial settlement” is defined as “the settlement of a civil case with
the help of a Judge who is not assigned to adjudicate the dispute”.

Referring to the inter-relation between section 89 and Order X Rule 1 A, the Supreme
Court pointed out that there is no inconsistency. Section 89 confers the jurisdiction on the court
to refer a dispute to an ADR process, whereas Rules 1A to1C of Order X lay down the manner in
which the jurisdiction is to be exercised by the court. The scheme is that the court explains the
choices available regarding ADR process to the parties, permits them to opt for a process by
consensus, and if there is no consensus, proceeds to choose the process

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Legal Practitioners Bill 2010

Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010.

A Bill for the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry out the activities of legal practitioners; to make provisions for the establishment of an ombudsman for complaints against the professionals  and for a scheme to consider and determine complaints against the legal practitioners; to make provision in respect of providing legal services free of charge and for connected purposes.

Be it enacted by the Parliament in the 60 year of the Republic of India, as follows: -

CHAPTER I

PRELIMINARY

1. Short title, extent and commencement.—This Act may be called The Legal Practitioners (Regulation and Maintenance of Standards in Profession Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010.

(2)     It extends to the whole of India, except the State of Jammu and Kashmir.

(3)     It shall come into force on such date as the Central Government may, by notification, appoint; and different dates may be appointed for different provisions of this Act and for different States, and any reference to commencement in any provision of this Act in relation to any State shall be construed as a reference to the commencement of that provision in that State.

2. Definitions.—In this Act, unless the context otherwise requires, –

(a) “Board” means Legal Services Board constituted under this Act.

(b) “Clients” means the clients of the Legal Professionals who engaged such Legal Professionals by executing a vakalatnama / letter of authority, by whatever name it may be known.

(c) “Consumer of Legal Profession” includes the clients of legal professionals and anyone who might have recourse to legal services  because of a legal issue and those who are using or are may be contemplating using services provided by the legal professionals in relation to the legal services arising out of a legal issue.        

(d) “Legal Professionals” means the Advocates as defined in the Advocates Act, 1961 and includes the qualified lawyers engaged in legal practice confined to their chamber, engaged in drafting and conveyancing, practitioner of income tax and sale tax and those appearing before the relevant authorities, giving advise to the clients for a fee, gain or reward in the areas of customs, immigrations, trademark and patent services and all other professional services where legal issues are involved;

(e) “Ombudsman” means the Ombudsman appointed under this Act for redressing the grievances of the clients and consumers of Legal Professionals.

(f) “Professional Principles” include –

          (i) that the Legal Professionals should act with independence and integrity;

          (ii) that the Legal Professionals should maintain proper standards of work;

          (iii) that the Legal Professionals should act in the best interest of their clients;

          (iv) that the Legal Professionals who are authorise to appear before a court or tribunal, by virtue of being such authorisation should comply with their duty to the court / tribunal to act with independence in the interest of justice;

          (v) that the affairs of clients should be kept confidential. 

 (g) “Prescribed” means prescribed by rules made under this Act.

          (2)     Any reference in this Act to any other enactment or any provision thereof shall, in relation to an area in which such enactment or provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.

CHAPTER II

THE REGULATORY OBJECTIVES

3.The Regulatory objectives. – (1) In this Act a reference to “the regulatory objectives” is a reference to the objectives of—

(a)protecting and promoting the public interest;

(b)supporting the constitutional principle of the rule of law;

(c)improving access to justice;

(d)protecting and promoting the interests of the clients of the legal practitioners;

(e)promoting healthy competition amongst the legal practitioners for improving the quality of service;

(f)encouraging an independent, strong, diverse and effective legal profession with ethical obligations and with a strong sense of duty towards the courts and tribunals where they appear;

 (g)creating legal awareness amongst the general public and to make the consumers of the legal profession well informed of their legal rights and duties;

(h)promoting and maintaining adherence to the professional principles.

 CHAPTER III

LEGAL SERVICES BOARD

PART – 1

4. Constitution of Legal Services Board. – (1) The Central Government shall constitute a body to be called the Legal Services Board to exercise the powers and perform the functions conferred on, or assigned to it under this Act.

(2)     The Legal Services Board shall consist of –

(a)  a Chairman appointed by the President of India in consultation with the Chief Justice of India and the Chairman of the Bar Council of India.

(b)     a Member-Secretary appointed by the Central Government in consultation with the Chief Justice of India and the Chairman of the Bar Council of India possessing such experience and qualifications, as may be prescribed by the Central Government, to exercise such powers and perform such duties under the Chairman of the Legal Services Board.

(c)     such number of other members, possessing such experience and qualifications, as may be prescribed by the Central Government, to be nominated by the Government in consultation with the Chief Justice of India and Chairman of the Bar Council of India.  Out of these five members shall be the Chairmen of the State Bar Councils, representing the Northern, Southern, Western, Eastern and North-Eastern regions of the country.

(3)     The Chairman of the Legal Services Board shall not, during the appointment carry on any activity relating to practice of law for or in expectation of any fee, gain or reward.

(4)     While appointing members of the Legal Services Board, other than from the category of Chairman of the State Bar Councils, regard shall be had such members have experience or knowledge of in the field of –

          (a)     a legal professional; or

          (b)     imparting of legal education; or

          (c)     consumer affairs; or

          (d)     having been a Judge of the High Court; or

          (e)     experienced in competition law; or

          (f)     had been the member of a grievance redressal body at the National level or State level; or

(5)     The terms of office and other conditions relating thereto, of Chairman, Member-Secretary and other members shall be such as may be prescribed by the Central Government in consultation with the Chief Justice of India and the Chairman of the Bar Council of India. 

(6)     The Legal Services Board may appoint such number of other employees as may be prescribed by the Central Government, in consultation with the Chief Justice of India and the Chairman of the Bar Council of India, for the efficient discharge of its function under this Act.

(7)     The officers and other employees of the Legal Services Board shall be entitled to such salary and allowances and shall be subject to such other conditions of service as may be prescribed by the Central Government in consultation with the Chief Justice of India and Chairman of the Bar Council of India.

(8)     The administrative expenses of the Legal Services Board including the salaries, allowances and pensions payable to the Chairman, Member-Secretary, Officers and other employees of the Legal Services Board shall be defrayed out of the Consolidated Fund of India.

(9)     All orders and decisions of the Legal Services Board shall be authenticated by the Member-Secretary, members or other officers of the Legal Services Board duly authorized by the Chairman of the Board.

(10)   No act or proceeding of the Central Authority shall be invalid merely on the ground of the existence of any vacancy in, or any defect in the constitution, of the Legal Services Board.

5. Arrangements for Assistance. – (1) The Board may make arrangements with such persons as it considers appropriate for assistance to be provided to it. 

(2)     Arrangements may include the paying of fees of such persons.

6. Committees. – (1) The Board may establish committees.

(2) Any committee so established may establish sub-committees.

(3) Only members of the Board may be members of a committee or subcommittee.

7. Proceedings. – (1) The Board may regulate its own procedure, and the procedure of its committees and sub-committees.

(2) The quorum of a committee or sub-committee must not be less than 3.

(3) The Board shall publish any rules of procedure made under this Section.

8. Quorum for the Meetings of the Board. – (1) Quorum for the meetings of the Board shall be 3.

(2) The Member-Secretary is entitled to participate in the meetings with a right to vote.           

(3) In case of a division the Chairman of the Board may exercise his casting vote.

9. Delegation of Function. – (1) The Board may authorise –

          (a)     the Chairman, the Member-Secretary or any other Member of the Board;

          (b)     a Committee or sub-committee of the Board; or

          (c)     a member of staff appointed by the Board, to exercise on behalf of the Board, such of its functions, in such circumstances as it may determine.

10. Accounts. – (1) The Board must – 

          (a)     keep proper accounts and proper records in relation to the accounts; and

          (b)     prepare in respect of each financial year a statement of accounts including the income and expenditure account and a balance sheet in such forum and in such manner as may be prescribed by the Central Government in consultation with the Comptroller and Auditor General.

(2)     The accounts of the Board shall be audited by the Comptroller and Auditor General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Board concerned to the Comptroller and Auditor General of India. 

11. Levy of Contribution from the Members of Legal Profession. – (1) The State Bar Councils Bar Council of India and the Legal Services Board as the case may be, shall levy an amount not exceeding Rs.25/- from the Legal Professionals by insisting an affixing adhesive stamps on the vakalatnama / letter of authorisation filed by the Legal Professionals in the Courts /Tribunals or the institutions / officers where they represent their client in the capacity of a legal professional.

(2)     The Board shall from time to time by notification fix the rate of such contributions.

12. Board’s Power for Issuing Schemes & Guidelines to Promote the Regulatory Objectives. – (1) In discharging its functions for promoting the regulatory objectives, the Board may issue guidelines or schemes.

(2)     The guidelines and regulations shall be made in a way –

          (a)     which is compatible with the regulatory objectives; and

          (b)     which the Board considers most appropriate for the purpose of meeting those objectives; and

          (c)     The Board must have regard to the principles under which the legal professional activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

          (d)     any other principle appearing to it to represent the best legal professional practice.

13. Standards of Regulation, Education and Training. – (1) Notwithstanding anything contained in the Advocates Act, 1961 the Board  must assist in the maintenance and development of standards in relation to –

          (a)     the regulation approved by the Bar Council of India in relation to the activities of the advocates; and

          (b)     the education and training of the legal professionals.

14. Supplementary Powers. – (1) The Board may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions.

15. Annual Report. – (1) The Board shall prepare an Annual Report dealing with the discharge of Board’s functions, the extent to which the Board has met the regulatory objectives and such other matters as the Central Government may from time to time direct.

(2)     A copy of the Annual Report shall be laid before both houses of Parliament.

PART – II

CONSUMER PANEL

16. Consumer Panel. – (1) The Board shall establish and maintain a panel of persons to be known as “the Consumer Panel” to represent the interests of consumers and the clients of the legal professionals.

(2)     The consumer panel shall consist of such consumers or persons representing the interest of consumers as the Board may appoint with the approval of the Central Government.  The Board may appoint one of the members of the consumer panel to be the Chairman of the panel.  The consumer panel shall have a fair degree of representation of both the consumers / clients of the legal professionals and those who are using or may be contemplating using the services of the legal professionals as consumers / clients.

(3)     The consumer panel shall not include –

          (a)     a member of the Board or its staff;

          (b)     an Ombudsman for legal complaints or of the staff of such Ombudsman;

          (c)     a member of the government body or of the staff of State Bar Council / Bar Council of India; or

          (d)     legal professionals.

(4)     The term of office and mode of removal of the Chairman and members of the consumer panel shall be similar to those of Chairman, Member-Secretary and Member of the Board.

17. Procedure of the Consumer Panel. – (1) The consumer panel may make such arrangements for regulating its own procedure, as it thinks fit for relating its procedure.

(2)     The consumer panel may establish committees or sub-committees.

(3)     If the services of any other person is availed of by the consumer panel or its committee, the Board may pay to that person such remuneration and expenses as the Board may determine.

18. Representations made by the Consumer Panel. – (1) Representations made by the consumer panel shall be considered by the Board.

(2)     If the Board disagrees with the views expressed, or proposal made, in the representations, it must give the consumer panel a notice to that effect stating its reasons for such disagreeing.

(3)     The consumer panel may publish such information as it thinks fit about any representations made by it to the Board.

(4)     The Board must publish any notice it gives under sub-section (2) in respect of those representations.

19. Advice and Research Functions of the Consumer Panel. – (1) The consumer panel may, at the request of the Board –

          (a) carry out research for the Board;

          (b) give advice to the Board;

          (c) publish such information as it thinks fit about the advice it gives and about the results of research carried out by it.

(2)     The Board shall consider any advices given and results of any research carried out under this section.

(3) All expenditures in relation to the consumer panel shall be borne by the Board.

PART III

OMBUDSMAN

20. Ombudsman. – (1) The Board may appoint a Chief-Ombudsman at its office and Ombudsmen for each States for dealing with the complaints against the legal professionals at the State level.

(2)     The State Governments shall provide the requisite staff and infrastructural facilities for running the office of the Ombudsman in each States.

21. Qualification and Selection of Ombudsman. – (1) No persons shall be appointed as Chief Ombudsman unless he has held the post of a Judge of the High Court.

(2) The Ombudsman for the State shall have held the post of a District Judge.

(3) The Ombudsman shall be selected by in consultation with the Chief Justice of the State High Court and the Chairman of the State Bar Council.

(4)     The Ombudsman shall hold office for a term of five years and shall not be eligible for re-appointment.

(5)     The Ombudsman may resign his office at any time by writing under his hand and address to the Chairman of the Board.

(6)     The Ombudsman may be removed from his office in accordance of the provisions relating to the removal of the Chairman, Member-Secretary and members of the Board.

22. Procedure Before the Ombudsman. – (1) On receipt of a complaint relating to a legal professional, the Ombudsman shall issue notice to the legal professional concerned and also to the complainant and shall fix a date for inquiry into the complaint.

(2)     The Ombudsman shall examine the documents and the witnesses, if any, on both sides and shall prepare his findings after hearing both sides.

(3)     The report of the Ombudsman shall be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the Board.

(4)     The report of the Ombudsman shall contain his own findings about the allegations against the Legal Professional and the proposals for taking necessary action.

(5)     The report of the Ombudsman shall be published in the manner prescribed by the Rules.

(6)     The Disciplinary Committee of the Bar Council of the State shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council reasons thereof shall be recorded in writing and such reasons shall be published in the manner prescribed by Rules with sufficient justification. 

(7)     The reasons for rejection of the recommendation of Ombudsman shall be explained in detail which it is so published.

23. Status of Ombudsman. – (1)     The Ombudsman and the employees of his, shall be deemed to be public servants within the meaning of Section 21 of Indian Penal Code (45 of 1860).

PART IV

STATUS OF THE BOARD

24. Status.—(1) The Board is not to be regarded –

          (a) as a subordinate to any Government Department or as the agent of the Government; or

          (b) as enjoying ay status, immunity or privilege as provided by any other law.

(2)     The Board shall be entitled to hold and purchase movable and immovable properties for its efficient functioning and shall have a body incorporate having a perpetual succession with a common seal.

25. Disqualification. – (1) The President of India or the Central Government as the case may be may remove, Chairman or Member-Secretary or members from office who –

          (a)     has been adjudged as insolvent; or

          (b)     has been convicted of an office which, in the opinion of the President of India or the Central Government as the case may be, involved in moral turpitude; or

          (c)     has become physically or mentally incapable of acting as such Chairman, Member-Secretary or members; or

          (d)     has acquired such financial or other interest as is likely to affect prejudicially his functions as Chairman or Member-Secretary or members; or

          (e)     has or so abused his position as to render his continuance in office prejudicial to the public interest;

          Provided that the Chairman, Member-Secretary or members shall not be removed from his office on the grounds specified in clauses (d) and (e), except on inquiry held in accordance with the procedure prescribed.

26. Procedure for Inquiry. – (1) Whenever the President of India or the Central Government is of the opinion that an allegation under clauses (d) or (e) of Section 19 is required to be inquired, they may hold an inquiry conducted by sitting judge of the High Court.

(2)     A copy of the inquiry report along with a copy of the allegations and a list of documents and witnesses shall be delivered or cause to be delivered to the Chairman, Member-Secretary or member against whom such inquiry was conducted and shall require him to submit within such time as may be allowed, a written reply or statement of his defence. 

(3)     If the allegations are admitted by the Chairman, Member-Secretary or members, the President or Central Government as the case ay be, record reasons and remove such person.

(4)     Where the charges have been denied by the Chairman, Member-Secretary or member, the President of India or the Central Government as the case may be, appoint a sitting or retried judge of the Supreme Court of India to inquire into the truth of the allegation.  A Presenting Officer may be appointed to present the case on behalf of the President of Indian or as the case may be, Central Government before the judge so appointed.

(5)     The Inquiring Judge shall give opportunity to the Presenting Officer to present the case and to examine witnesses and to present evidence, if any.  Thereafter the Chairman, Member-Secretary or member shall be given opportunity to present his defence. 

(6)     The Inquiring Judge shall have power to call witnesses and record their statements or receive evidence on affidavits or call for production of documents or other relevant records, which may be necessary for the inquiry.

(7)     Inquiring Judge may submit his report within a period of six months or within such time as may be extended by the President of India, as the case may be, by the Central Government.

(8)     If the President of India or, as the case may be, Central Government is satisfied that the charges are proved on the basis of the report submitted by the Inquiry Judge, the delinquent Chairman, Member-Secretary or member, as the case may be, shall be removed.

CHAPTER IV

LEGAL AID TO THE FINANCIALLY WEAKER CONSUMERS.

PART – I

27. Free Legal Services to the Financially Weaker Consumers / Clients. – (1) Every Legal Practitioner shall be duty bound to give free legal services to the financially weaker consumers/clients who fall just above the income levels prescribed under Section 12(h) of the Legal Services Authorities Act, 1987.

28. The Duty of Legal Professionals to provide honest and true legal advice to the consumers/clients. – (1)  Every legal professional shall provide full information regarding the legal position to consumer / client relating his case.  The services of the legal professional shall be in such a manner as to give an opportunity to the consumer / client to make informed choices about the quality, access and value of the legal services he requires.

PART –II

RELATIONSHIP BETWEEN THE LEGAL SERVICES BOARD WITH THE BAR COUNCILS.

29. Legal Services Board and the Bar Councils. – (1) The Legal Services Board shall have full authority to deal with the regulatory objectives in this Act and the Bar Council of India and State Bar Councils shall continue to exercise the functions assigned to them by Advocates Act, 1961.

(2)     The directions of the Legal Services Board relating to the regulatory objectives of this act shall be the guiding principles in so far as functioning, performance and professional principles to be followed by all legal professionals.

(3)     In discharging its regulatory functions assigned by the Advocate Act, 1961, the Bar Council of India and the State Bar Councils shall comply with the requirements of the regulatory objectives in this act.

(4)     The Bar Council of India and State Bar council, shall, so far as is reasonably practicable, act in a way –

          (a)     which is compatible with the regulatory objectives, and

          (b)     which the Bar Councils consider most appropriate for the purpose of meeting those objectives. 

30. Directions. – (1)     This section applies if the Board is satisfied –

          (a)     that an act or omission of the Bar Councils has and, or is likely to have an adverse impact on one or more of the regulatory objectives, and

          (b)     that the Bar Council has failed to comply with any requirement imposed on it by or under this Act or any other enactment; and

          (c)     that the Bar Council –

          (i)      has failed to ensure that the exercise of its regulatory functions is not prejudiced  by any of its other functions, or

          (ii)    has failed to ensure that decisions relating to the exercise of its regulatory functions are, so far as reasonably practicable, taken independently from decisions relating to the exercise of its representative functions.  

(2)     If, in all the circumstances of the case, the Board is satisfied that it is appropriate to do so, it may direct the Bar Council to take—

(a)     in a case within subsection (1)(a), such steps as the Board considers will counter the adverse impact, mitigate its effect or prevent its occurrence or recurrence;

(b) in a case within subsection (1) (b) or (c), such steps as the Board considers will remedy the failure, mitigate its effect or prevent its recurrence.

(3)     In a case within subsection (1)(a), before giving a direction under subsection (2) the Board must in particular consider the impact of giving the direction on the  other regulatory objectives.

(4)     A direction under subsection (2)—

(a)     may only require the Bar Council to take steps which it has power to take;

(b)     may require a Bar Council to take steps with a view to the modification of any part of its regulatory arrangements.

(5)     The Board may not exercise its powers under this section so as to give a direction requiring a Bar Council to take steps in respect of a specific disciplinary case or other specific regulatory proceedings (as opposed to all, or a specified class of, such cases or proceedings).

 (6)    For the purposes of this section a direction to take steps includes a direction which requires a Bar Council to refrain from taking a particular course of action.

(7) The power to give a direction under this section is subject to any provision made by or under any other enactment.

(8) The Board may take such steps as it regards as appropriate to monitor the extent to which a direction under this section is being, or has been, complied with.

(9) Where the Board revokes a direction under this section, it must—

(a)     give the Bar Council to which the direction was given notice of the revocation, and

(b) publish that notice.

31. Enforcement of Directions. – (1) If the Bar council failed to comply with a direction given under section 30, the Board may make an application to the High Court under this section.

(2) On an application under sub-section (1) of this Section, if the High Court decides that the Bar Council has failed to comply with the direction in question, it may order the Bar Council to take such steps as the High Court directs for securing that the direction is complied with.

32. Public Censure. – (1) If the Board is satisfied—

(a) that an act or omission of the Bar Council has had, or is likely to have, an adverse impact on one or more of the regulatory objectives, and

(b) that it is appropriate to act under this section in all the circumstances of the case.

(2) The Board may publish a statement censuring the Bar Council for the act or omission.

(3) Before publishing a statement of censure the Board shall give notice to the Bar Council that it intends to publish such a statement and setting out the terms of the proposed statement indicating the acts or omissions of the Bar Council. 

(4) The notice under Section (3) shall specify that the Bar Council has 30 days time before the expiry of which the representations with respect to the proposed statement of censure may be made.  (5) Before publishing the statement the Board must consider any representations which are duly made.

(6) The above procedure shall be followed in the case of any variations proposed to be made in the statement of censure.

33. Intervention Directions. – (1) The Board has power to issue directions by way of interventions in relation to any of the functions of the Bar Councils. If the circumstances mentioned in sub-section (1) of Section 32 appear in relation to such functions.

(2)     If the Bar Council does not obey such directions of interventional nature, the Board may approach the High court for orders for implementation of such directions by the Bar Council.

34. Revocation of Directions. – (1)  The Board may revoke at any time the directions or intervention directions issued to the Bar Council.

CHAPTER V

THE BOARD’S POWER TO REGULATE THE LEGAL PROFESSIONALS OTHER THAN THOSE COVERED BY THE ADVOCATES ACT, 1961

35. Board Powers to Function as Regulator. – (1) Until competent regulatory bodies are established by the Central Government or State Government as the case may be, the Legal Services Board shall function as the regulator for the regulatory objectives under this act for legal professionals other than those covered by the Advocates Act, 1961 as enumerated in Schedule I.

(2)     The Central Government or the State Government as the case may be appoint or designate regulatory with powers of granting licence to such legal professionals.

(3)     The Central Government may by notification add or delete any profession in Schedule-I.

36. The Board may encourage multi-disciplinary services for the Legal Professionals. – (1)  In order to make the services of the legal professionals  to be more holistic and effective, the Legal Services Board shall encourage the legal professionals to join hands with other disciplines and professions to give comprehensive services to the clients or consumers.

CHAPTER VI

MISCELLANEOUS

37.  Act to have overriding effect. – (1)  The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force in any instrument having effect by virtue of any law other than this Act.

38. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:

          Provided that no such order shall be made after the expiry of a period of two years from the date on which this Act receives the assent of the President.

(2)     Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

39. Power of Central Government to make rules. – (1) The Central Government in consultation with the Chief Justice of India may, by notification, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -

          (a)     the experience and qualifications of the Member-Secretary of the Board;

          (b)     the condition of service and the salary of the Chairman, Member-Secretary and members of the Board and the Ombudsman;

          (c)     the number of officers and other employees of the Legal Services Board and the Chief Ombudsman and other Ombudsman in the States;

          (d)     any other matter which is to be, or may be prescribed.

40. Laying of rules and regulations. – (1) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of 30 days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, or both Houses agree in making any modification in the rule, or both House agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

SCHEDULE – I

(See Section 35)

1.                 Qualified lawyers who are not practicing advocates, doing legal services in their Chambers.

2.                 Qualified lawyers engaged in drafting and conveyancing.

3.                 Income-Tax Practitioners.

4.                 Sales-Tax Practitioners.

5.                 Practitioners in Revenue Courts.

6.                 Customs clearance agents.

7.                 Customs and Immigration Law Practitioners. 

8.                 Trademark attorneys / lawyers.

9.                 Patent attorneys / lawyers.

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