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Month: July 2023

Nemo Dat Quod Non Habet

The process by which ownership goes from one party to the other is referred to as “Transfer of property as between seller and buyer” and is covered in Sections 16 through 19 of the Sale of Goods Act of 1979. Nemo dat quod non habet, literally meaning “no one can give what they do not have”, is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also . denies the purchaser any ownership title. The term “Transfer of Title” refers to a variety of circumstances in which a seller who lacks ownership or who has a faulty title grants good title to his buyer and so defeats the claim of the genuine owner or the holder of a superior title. This only occurs under unusual situations.

A transfer his property to B, further, A transfer the same property to C, following the rule of Nemo Dat Quod Non Habet, B will get the right from A , thus, currently , B has the rights and A has none, so A cannot transfer property to C. The current owner should be able to trace his rights back in time to prove his legitimate acquisition. In Nitin Gupta vs. State of Meghalaya and others, Supreme Court has set aside the release of the stolen vehicle to the buyer on the principle of Nemo dat quod non-habet.

Exceptions

The above stated general rule contained in section 27, as stated in the opening words of the section itself, is “subject to the provisions of this Act and of any other law for the time being in force.” Various exceptions to this rule have been mentioned in this Act and the Indian Contract Act and in those exceptional situations, the seller of the goods may not be having a good title to the goods, yet the buyer of the goods gets a good title to them. The exceptions are as follows:

  1. Sale under the implied authority of the owner, or transfer of title by estoppel (S. 27)
  2. Sale by a mercantile agent (proviso to S. 27)
  3. Sale by one of joint owners (S. 28)
  4. Sale by a person in possession under a voidable contract (S. 29)
  5. Sale by the seller in possession of goods, the property in which has passed to the buyer (S. 30(1))
  6. Sale by the buyer in possession of the goods before the property in them has passed to him (S. 30(2))
  7. Re-sale of the goods by an unpaid seller after he has exercised the right of lien or stoppage in transit (S. 54(3))
  8. Sale by finder of goods (S. 169, Indian Contract Act)
  9. Sale by a pawnee when the pawner makes a default in payment (S. 176, Indian Contract Act)
  1. Sale under the implied authority of the owner, or transfer of title by estoppel (S. 27)

Estoppel by representation happens when the true owner of the good gives the impression that the seller is the rightful owner of the goods, or at the very least has the authority to sell them, through his words or actions. Owner cannot later claim the item. In estoppel situations, the buyer receives a greater title than the seller. If the owner is present at the sale or helps with the transaction, the estoppel may be established in a number of ways: a)The owner is present during the sale; b) He assists the sale process. c) He allows the transfer of possession goods to another person; or d) He has participated or acted in inducing the buyer

2. Sale by a mercantile agent (proviso to S. 27)

For the application of this provision, the following conditions are to be satisfied.

    a)Seller is mercantile agent

    b) He got possession of goods or documents of title to the goods with the consent of the owner, and in his capacity as a mercantile agent

    c) While selling the goods he must have been acting the ordinary course of his business of a mercantile agent

    D) The buyer of the goods must have acted in good faith without having any notice that such mercantile agent did not have an authority to sell

    3. Sale by one of joint owners (S. 28)

    If one of many joint owners of goods has sole possession of them with the consent of the other joint owners, the property in the goods passes to anybody who purchases them in good faith from that joint owner without being informed of the fact that the seller lacks the right to sell. It should be noted that without this clause, the buyer would simply have received the co-owners’ titles and would have remained merely a co-owner with them. Therefore, the clause is an exception to the maxim that “no one can give what he has not got.” For example, the three brothers A, B, and C. They share ownership of a cow. B and C give A the task of taking care of the cow and depart with the cow. A gives D the cow. D buys honestly and for a fair price. D is given a respectable title.

      4. Sale by a person in possession under a voidable contract (S. 29)

      Sections 19 and 19-A of the Contract Act state that if a party’s assent was obtained through coercion, fraud, deception, or undue influence, that party has the right to dissolve the contract at their discretion. According to Section 29, if a person sells goods that they have obtained possession of as a result of a contract that is voidable under Sections 19 or 19-A of the Contract Act before the contract has been avoided by the party entitled to do so, the buyer of those goods will acquire a good title to them. However, it is important that such a buyer have done so in good faith and without knowledge of the seller’s title deficiency. Through false representation, A persuades B to sell and deliver a cow to him. Before B cancels the contract, A sells the cow to C. C buys the cow in good faith without being aware of the seller’s faulty title. C gains a respectable title.

      5. Sale by the seller in possession of goods, the property in which has passed to the buyer (S. 30(1))

      If a seller has sold the goods and the property in the goods has passed to the buyer, the seller cannot deal with such goods. The buyer may bring a conversion tort claim against him if he is still in possession of the goods and deals with them. However, according to Section 30 (1), if a seller who has sold the goods is still in possession of the goods or of the documents of title to them, the delivery or transfer of the goods or of the documents of title under any sale, pledge, or other disposition thereof by the seller or by a mercantile agent on his behalf will convey a good title to the buyer, provided the buyer has been acting in good faith and he is unaware of the prior sale.

      6. Sale by the buyer in possession of the goods before the property in them has passed to him (S. 30(2))

      a) The buyer must be in the possession of the goods.

      b) But the ownership is still with the seller

      c) The goods purchased by the second buyer must be done in a good faith.

      these conditions are to be fulfilled then

      7. Re-sale of the goods by an unpaid seller after he has exercised the right of lien or stoppage in transit (S. 54(3))

      Section 54 (2) states that a seller who has not been paid may resale the goods after giving notice to the buyer if he has used his right of lien or halt in transport and the buyer has not paid him. If such a notice is not provided, the seller will not be able to hold the buyer liable for any losses incurred should the products sell for less than the agreed-upon price or benefit from a higher price. However, the new buyer’s title is unaffected by the lack of such a notice. According to section 54 (3), when an unpaid seller has exercised his right of lien or stoppage in transit and resells the goods, the buyer acquires a good title
      thereto as against the original buyer, notwithstanding that no notice of the resale has been given to the original buyer.

      1. Sale by Finder of Goods-

      Indian Contract Act, Section 169 The Indian Contract’s section 71 states that the finder of the items is accountable in the same ways as the bailee. When the things are in his custody, he must take proper care of them and return them when the owner is located. However, in accordance with section 169 of the Indian Contract Act, the finder may sell the items if the owner cannot be located with reasonable diligence or if he refuses to pay the finder’s legal fees upon demand:

      a) When the thing is in danger of perishing or of losing the greater part of its value, or,
      b) When the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.
      When the finder of goods sells them under the circumstances stated above, the buyer of such goods gets a good title to them.

      9. Sale by a pawnee when the pawner makes a default in payment (S. 176, Indian Contract Act)

      If the loan guaranteed by the commodities is repaid to the pawnee, he is typically required to return the goods. He may keep those items until the obligation, interest on the debt, and other required costs he spent for custody or preservation of the pledged items are paid to him. According to section 176, the pawnee may sell the goods pledged after giving the pawnor sufficient notice of the sale or sue the pawnor for the debt if the pawnor defaults on making the payment. The buyer of such things obtains a fair title to them upon such a sale being made by the pawnee.

      1. Sale in Market Overt
        English law recognizes an exception to the norm that states that when commodities are sold in an open market in accordance with custom, the buyer receives a good title to the items so long as he purchases them in good faith and without knowledge of any flaws or lack of title on the seller’s part.10 Such a sale refers to a public sale made by a person who frequently deals in such things. In such a deal, the buyer’s title is safeguarded even if the seller could be held accountable for the tort of conversion.

      Heads of Income under Taxation

      As per Section 14 of the Income Tax Act, for the purpose of charging of tax and computation of total income, all incomes are classified under the following 5 Heads of Income:-

      1. Salaries
      2. House Property
      3. Profits and Gains of Business or Profession
      4. Capital Gains
      5. Other Sources

      1. Income from Salaries

      An Income can be taxed under head Salaries if there is a relationship of an employer and employee between the payer and the payee. If this relationship does not exist, then the income would not be deemed to be income from salary.

      If there is no element of employer-employee relationship, the income shall be not assessable under this head of income.

      Illustration: Mrs. Angelina works in SGP Company Ltd. Owned by her Uncle. Despite being a close relation, she is getting paid 50,000 as a monthly salary. Here, her monthly earnings are chargeable under income from the salary head since she has an employer-employee relationship with her Uncle.

      As per Section 15(a) of the Income Tax Act, any salary from the employer or former employer to the assessee (previous year) is taxable under this head regardless of the fact that it has been paid or not.

      According to the Indian taxation Law, an employer could be remunerated by the mean of the following terminologies,

      • Fees
      • Basic Wages
      • Advance salary
      • Allowances
      • Pension
      • Gratuity
      • retirement benefits and
      • Annual bonus as well.

      2. Income from House Property

      Sections 22 to 27 of the Act of 1961 elucidate the computation of the total income from the properties inclusive of land and building, which the concerned person owns. The revenue under this head is chargeable only when the property has let out or rent i.e. only the rental income is taxable.

      Section 22 of the Act provides that the annual value of property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner, other than such portions of such property as he may occupy for the purposes of any business or profession carried on by him the profits of which are chargeable to income-tax, shall be chargeable to income-tax under the head “income from house property.

      Hence, the chargeable cess could be levied on the gains from the building or the land appurtenant to the property comprises buildings rented for residential, businesses, professional, and entertainment purposes. In general, the income from the house property is calculated as, earning – expenditure = profit.

      3. Profits and Gains from Business or Profession

      Any income earned from any trade/commerce/manufacture/profession shall be chargeable under this head of income after deducting specified expenses.

      The computation procedures of this head are explicated under Sections 28 to 44D of the Income Tax Act, 1961. But, it is quintessential to comprehend the meaning of the terms ‘businesses and ‘profession’ pursuant to the Act. The term business  is defined as an activity performed for the purpose of earning a profit, while Section 2(36) defines the latter as an occupation. Notwithstanding, both are similar in all respects that they are driven in pursuit of income/ profit.

      Under this head, the following incomes are chargeable,

      • Benefit reaped from the business
      • Profit on the income by an organisation or as a result of being in a partnership,
      • Profit earned by the assessee
      • Cash received on export by the operation of the governmental scheme

      4. Income from Capital Gains

      Any profits or gains arising from the transfer of a capital asset effected in the financial year shall be chargeable to Income Tax under the head ‘Capital Gains’ and shall be deemed to be the income of the year in which the transfer took place unless such capital gain is exempt under  Section 54, 54B, 54D, 54EC, 54ED, 54F, 54G or 54GA.

      • LTCG- holding assets for more than 36 months and gaining profit by selling them.
      • STCG- holding assets for less than 36 months and deriving profit by selling the same.

      5. Income from Other Sources

      Any Income which is not chargeable to tax under the above mentioned 4 heads of income shall be chargeable under this head of income provided that income is not exempt from the computation of total income. Incomes, which are being left by the aforementioned clauses, can be charged under this head. Section 56 (2) of the Income Tax Act attributes the following types of income sources as ‘other income’,

      • Interest income from bank deposit
      • Dividend earnings
      • Gifts
      • Insurance policy
      • Income from the lottery, card games, gambling, and many more

      The total income of an individual plays a pivotal role in income tax computation. That is why it is significant to figure out the underlying structure of income tax. The aforementioned is the brief outline of the existing five heads of income under the Income Tax Act, 1961.

       Del Credere Agency/Agent

       A del credere agent only becomes liable to pay the principal after the buyer defaults on payment. If the principal (seller) is unable to collect for some other reason. A del credere agent is an agent who in consideration of an extra remuneration guarantees to his principal the performance of the contract by th other party. This commission is called del credere commission. He occupies the position of a guarantor as well as of an agent. A Del credere agent is appointed generally when the principal deals with person about whom he knows nothing.

      Example: A company hires a del credere agent to sell their products to retailers. The agent guarantees that the retailers will pay for the products on time, even if they sell them on credit to their customers. If a retailer fails to pay, the del credere agent is responsible for the payment. In return for this guarantee, the agent receives a higher commission for sales.

      Mr. X appoints Y to sell the goods in the market on the terms that Y has to undertake the guarantee of the credit, which is extended to the buyer, i.e., if the buyer makes any default in the payment of the money. The Y would be liable to the extent of that amount to Mr. X. Also, it was decided that Y would not be liable to Mr. X for any other issue apart from any default in making the payment.

      In the present case, there is the principal-agent relationship between Mr. X and Y as Mr. X appoints Y to sell the goods in the market on the condition that if any credit is extended to the buyer, then Y has to take responsibility for the same. If the buyer cannot repay the amount, then Y has to correct the default and pay the amount to Mr. X. Also, it was decided that Y would not be liable to Mr. X for any other issue apart from any default in making the payment. So, this is the case of the Del Credere Agency.

      Advantages of Del Credere Agency

      The different advantages related to the del credere agency are as follows:

      • From the seller’s perspective, the agent would be responsible for the seller up to the amount of the default amount if the buyer were to default in making a payment. Therefore, in the event of a buyer default payment, the seller will receive payment from the agent..
      • In the Del Credere agency, the agent is only responsible for the payment to the principal if the buyer fails to make the required payment; other problems that can develop between the buyer and seller are not covered by this responsibility. Therefore, the agent benefits from this.
      • In exchange for taking on the additional risk, the agent will receive additional compensation from the seller on top of the standard sum he would have received had he not taken on the additional risk. The del credere commission, which is the additional sales commission that makes up this additional payment, is often how it is received..

      Disadvantages of Del Credere Agency

      The disadvantages related to the del credere agency are as follows:

      • According to the seller, a Del Credere agency only makes the agent responsible for the payment to the principal if the buyer fails to make the required payment; any other problems between the buyer and seller are not covered by this responsibility. Therefore, the seller won’t be able to reclaim the money from the agent in the event that a dispute emerges between the buyer and seller.
      • Additionally, the seller must pay the agent an additional sum in addition to the standard fee, which he could have done if the agent hadn’t taken on the additional risk. Therefore, in situations where there hasn’t been a default, the seller is required to give the agent the additional commission

      Case Laws:

      In P. Krishna Bhatta v Mundila Ganpathi Bhatta AIR 1955 Mad 648, J. Ramaswami explained the concept as “where he said that in legal terms and phraseology, any person who acts for another cannot be called an agent. If such a thing happens, a servant rendering his services to his master; or a person tilling anothers field or a person working in somebody elses shop or factory would be considered as their agent.”

      In Syed Abdul Khader v Rami Reddy (1979) 2 SCC 601 the Supreme Court held that “the expression agency is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and a third party”.

      Important Points about Del Credere Agency

      The different important points related to the del credere agency are as follows:

      In a Del Credere agency, the agent is only held responsible for the principal’s payment if the buyer fails to do so. In the event that any other problems develop between the buyer and the vendor, the same is not liable. Conflicts between the buyer and the seller are among the matters for which the agent will not be held responsible.

      The seller must pay the agent extra for taking on the extra risk in the form of insurance services; hence, the agent will get both the regular commission for sales and the additional commission for providing the insurance services. This additional payment typically takes the form of the Del Credere commission, which is an additional sales commission.

      The nature of the Del Credere agency is such that it puts the agent in the agency in the situation wherein he has the responsibility in connection with the seller and the buyer and of product or service under consideration.

      Conclusion

      As a result, in the case of the Del Credere Agency, there is a principal-agent relationship between the seller and the agent under the transaction, wherein the agent, in addition to acting as a salesperson on the seller’s behalf, also fulfills the role of an insurance company by taking on an additional risk in the event that the buyer defaults on the payment of the purchase price. To the extent of that sum, the agent would be accountable to the seller.

      The agent, however, is not responsible for any other problems that can emerge between the buyer and the seller and only becomes responsible for the payment to the principal if the buyer misses a payment deadline. Conflicts between the buyer and the seller are among the matters for which the agent will not be held responsible. Additionally, the seller must pay the agent an additional fee known as the Del Credere commission in exchange for the agent taking on the additional risk in the form of insurance services.

      Zero FIR

      After the Nirbhaya Case, Justice Verma’s Committee was established, and it presented the idea of Zero FIR in criminal law. As is common knowledge, “FIR” refers to the First Information report that the person bringing the complaint points out to the police. The definition of “FIR” has not been mentioned in the Criminal Procedure.

      Depending on the crime in that area or any other place, a zero FIR is how a FIR is filed in any police station. The snitch has no restrictions on how many FIRs they can file. In a Zero FIR, the police officer is obligated to handle the complaint lodged by the Informer and is consequently transferred to another police station under the jurisdiction of which the incident occurred.

      A serial digit is not present in the zero FIR. It is instead assigned the value “0” (zero), thus the name. According to the location where the crime was committed, it is documented. The police station transfers it to the authority police station where the incident occurred after it has registered zero FIRs. It was enacted on the advice of the Justice Verma Committee, which was established in the wake of the terrible gang rape of Nirbhaya in Delhi in 2012..

      The objective of a Zero FIR

      • To avoid delay and any other kind of disruptions.
      • To make police bound to take the jurisdiction.
      • Timely jurisdiction is to be taken immediately after the registration of the FIR.
      • To make sure that the investigation is done properly.
      • To enable the case to proceed fast.

      Judiciary on Zero FIR

      There has been judiciary support for Zero FIR. Courts have understood the value of Zero FIR and have come down laboriously on the police personnel for their reluctance to register Zero FIR. 

      The Supreme Court of India in Union of India vs Ashok Kumar Sharma and Others in 2020 observed that “the Police Station where the FIR is filed does not need to have jurisdiction; it is driven over to the Police Station that has the authority of that matter.” 

      Hence, when details are given to a Police Officer, within the meaning of Section 154 of the CrPC, about the commission of an offense that is cognizable, the Police Officer must file an FIR and then make it over to the Inspector.”

      Validity and practicality of the Zero FIR?

      The practicality and validity of a Zero FIR are similar to that of regular FIR. After filing Zero FIR, the person can inspect if the case has been moved to the police station with the authority and request for inspection without further delay.

      To exemplify, in the case of god man Asaram Bapu, the family members of the 16-year-old filed a Zero FIR in Delhi against the blamed. At the same time, the place of sexual misuse of the nominal was Asaram’s Ashram in Jodhpur, Rajasthan. The registered Zero FIR in Delhi was transferred to Jodhpur for further investigation. Then the Jodhpur police took up the research and arrested the accused.

      Hence it becomes crucial to understand the effects police officer will have to face if they refuse to register FIR: –

      • Filing FIR by a police officer is compulsory, as discussed in section 154 of CrPC. As discussed above, officers who refuse to register FIR, especially when the case is related to certain offenses against women ( rape, sexual assault, and so on), can be penalized with detention for one year or with a fine, as discussed in Section 166A of the IPC.
      • Punishing Action will be brought against the police officers who do not report the FIR if the details he receives reveal an offense of cognizable nature, citing authority situations.

      Zero FIR is, therefore, a vital tool for claiming citizens’ rights and encouraging confidence within the general public about the efficacy of police in taking out inquiries in a quick manner without any specialized territorial hindrances. 

      How to register an FIR / Zero FIR?

      It is crucial to know whether the offense is cognizable or not before submitting a Zero FIR. A major offense, such as rape, theft, murder, or theft, is a cognizable violation. On the other hand, information is submitted to the court via a complaint for crimes that are not immediately identifiable, such as criminal breach of trust, unnatural offenses, and so forth.

      If the crime is non-cognizable, the matter is reported to the magistrate, whereas in a cognizable offense, FIR is registered. Even if the crime is non-cognizable, the police will still take and keep the information in ‘their journal. The steps upon which the FIR is registered are as follows:

      • The crime should be cognizable.
      • If a female gives the details as per sections 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376 B, 376E, or section 509 of IPC 1860, then a female officer must enlist the FIR. 
      • When the crime is beneath sections 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376 B, 376E, or section 509 of the IPC 1860 issued by a person who is disabled, then the agreement has to be made by the police for recording their statement in the presence of the interpreter.
      • The information must be in the form of a video.
      • A record of a person’s statement must be under the presence of a magistrate as per section 164 of sub-section 5A. 

      Who can register a Zero FIR?

      A Zero FIR can be registered by the victim or witness who knows the facts connecting to the happening.

      Is zero FIR mandatory to be registered by the police?

      FIRs are typically filed at the police station. However, there are some instances in which FIR was filed via email and by communicating the scene by phone. Due to digitalization, there are certain times when people file claims online on official sites.

      Similarly to FIR, the zero FIR confirms that the police file the FIR and sidesteps any other problem while stating. The benefit of filing zero FIR is that it bypasses any doubtful time consumption and allows the police to study quickly. The process of registering a zero FIR is somehow related to filing FIR. If the officer refuses to report a Zero FIR, the person filing the complaint can write to the higher officer. Yet, if it doesn’t work, they can pass the file to the magistrate via a lawyer.

      Section 154 of the Code of Criminal Procedure, 1973 says that whenever an informant comes to the police station and submits his complaint, the information is converted into writing by the police officer and therefore keeps the record registered in the book as per the direction of the State Government. The informant is also given a copy of the FIR which is free of cost. FIR is registered when the offence committed is cognizable in nature.

      Difference between FIR and ZERO FIR

      The only distinction between a FIR and a Zero FIR is that a FIR must be submitted as a complaint by the informant when the incident occurred in the area where the police station has the authority to conduct an investigation, whereas a Zero FIR may be submitted to any police station regardless of where the incident occurred.

      Conclusion

      The shortest way to make a complaint at the police station is with a Zero FIR. Even if the offense occurred outside of their purview, the cops must nevertheless file an. Because of how quickly technology is developing, some jurisdictions also permit online FIR, which allows a person to submit the FIR on the police station’s official website. The FIR condition, however, may be examined virtually.

      Subordinate (delegated) Legislation

      The term “Legislation” means “lawmaking power”. Legislation is of 2 kinds. (a) Supreme Legislation means legislation that is passed directly by the supreme/sovereign Legislature ; (b) Subordinate Legislation means legislation passed under the power/authority delegated to the Administrative Authority by the supreme legislature. Delegated Legislation is also called as “Subordinate Legislation” or “Administrative Legislation”. It means “conferring one’s power of law-making to another, or extension of power of law-making to the Executive by the Legislature

      Delegated or subordinate legislation refers to rules of law enacted under the authority of an Act of Parliament. Even though the lawmaking body has the authority to make laws, it can delegate such authority to other entities or individuals by a resolution. Subordinate legislation is legislation made by the authority or other than the supreme authority in the state in the exercise of the power delegated to it by Supreme authority. This is controlled by the supreme authority.

      There are five Kinds of Subordinate Legislation which are as follows –

      (1) Colonial Legislation –       Colonial Legislation is the outcome of colony or colonies.

      (2) Executive Legislation –       These powers are expressly delegated to the executive by the parliament.

      (3) Judicial Legislation –       The Superior courts especially Supreme Court and High Courts of the State have the power of Making rules for the regulation of their own procedure.

      (4) Municipal Legislation –       Municipal authorities are empowered and entrusted with the power of establishing special laws for the Districts under their Control.

      (5) Autonomous Legislation –         These are the bodies of Private Persons, they make rules for the regulation and functioning of their offices.

      Validity of Delegated Legislation

      Certain conditions are prerequisite for considering any delegated legislation as valid and enforceable. These are –

      1. The parent act must be valid. A parent act is the one which enables and imparts power to the delegated legislation.
      2. The clause regarding delegation of authority must be valid
      3. The statute such made must be in consonance with the delegation clause in terms of procedure, substance and form.
      4. The statue must not violate the norms and guidelines laid down in myriad judicial decisions.
      5. The statute must also not violate any fundamental right or provision of the constitution.

      Demerits of delegated legislation:

      1. This opposes the concept of seperation of power

      2. lack of relevant discussion before enacting it.

      3. It is not stable, its fluctutating.

      4. it can easily encroach the rules and regulation of legislation by making rules.

      5. Against democracy, law made by peoples representatives.

      6. suffers from a lack of publicity

      7. delegated legislation enables authorities other than Legislation to make and amend laws thus resulting in overlapping of functions.

      Constitutionality of delegated legislation:

      ● The extent to which delegation is permissible in India must be determined as a matter of construction from the express provisions of the Indian Constitution.

      ● There is no such thing as an inexhaustible right of delegation inherited in legislative power.

      ● The Supreme Court of India upheld the delegation of the power conferred to the executive body by the legislative body in the Raj Narain Singh v. Chairman, Patna Administration Committee Air (1954) case. This case empowered the local government to extend any provisions of the act (Bengal Municipality Act).

      ● Nothing in the Indian constitution expressly prohibits the legislature’s power to delegate. But there are two constitutional limitations on legislative delegation, which were laid down in the case named.

      Principles of Interpretation of subordinate legislation:

      1. Subordinate legislation only in relation to ancillary functions: Legislatures are empowered to delegte the authoprity to legislate of subordinate bodies and authorities. The legislature, cannot, however, delegate essential legislative functions which consists in determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct.
      2. Judicial Review: Delegated legislation is open to the scrutiny of courts and may declare invalid on the following grounds:(a). Violation of Constitution (b) Violation of enabling Act. Violation of enabling Act includes within it preview violation of mandatory procedure prescribed. But delegated legislation cannot be questioned for violating principles of natural justice in its making except when the statue itself provides for that requirements.
      3. Sub-Delegation: (Delegatus non potest delegare)it means de;legation cannot be made by a delegate.Delegate on whom power to make subordinate legislation is conferred cannot further delegate that power.


      Presumption under evidence law

      The various presumptions are further described in Section 4 of the Indian Evidence Act. Under this provision, the terms “presumptions of fact” and “presumptions of law” are used differently.

      “May presume” means that the Court may regard the fact as proved unless and until it is disproved, or may call for proof of it.

      “Shall presume” means that the Court shall regard such a fact as proved,unless and until it is disproved

      “Conclusive proof” implies that, when one fact is defined by this Act as conclusive proof of another, the Court shall, upon proof of the one fact, treat the other as proved and shall not permitevidence to be presented with the intent to refute it.

      “An inference that either confirms or disputes a questionable fact or statement is known as a presumption. According to Sir James Fitzjames Stephen, until and unless the truth and validity of such inference is disproved, courts and judges must infer a certain conclusion based on the evidence that has been offered to the court. A supposition derived from one fact may offer support in terms of another pertinent fact. To sum up, a presumption is an inference of fact that is based on other established or known facts. As a result, a guy may be assumed to be a thief if he is discovered in possession of goods immediately after a theft.

      Section 114 of the Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case.

      Kinds of Presumptions:

      The Indian legal system has adopted a third classification to avoid any ambiguity in deciding any case. The traditional approach of the Common Law system only classified presumption under two categories, namely presumption of law and presumption of facts.Specifically, mixed presumptions, which take into account both the law and the facts.

      Presumption of Facts: Inferences that are “naturally” and “reasonably” drawn based on observations and conditions in the “course of basic human conduct” are referred to as “presumptions of facts.” These are also referred to as “natural or material assumptions” or “presumptions.”

      Presumption of Law: According to the law itself, presumptions of law are those inferences and ideas that are established or assumed. Rebuttable presumptions of law and irrefutable presumptions of law are two more divisions that can be made.

      Mixed Presumptions (Presumption of Fact and Law Both): “When the court, in its inferences, uses a blend that is composed of different presumption classifications, i.e., Presumption of Facts and Presumption of Law, the presumption is considered to be a Mixed Presumption.” Only the English legal system, which expressly deals with the statute of real property, reflects the ideas of such presumptions. However, the ideas of presumptions are expressly stated in the Indian legal system, and the Indian Evidence Act deals with such principles.

      Difference between Presumption of fact and presumption of law

         Presumption of Fact    Presumption of Law
      Presumption of fact is based on logic, human experience and law of naturePresumption of law is based on provision of law.
      Presumption of fact is always rebuttable and goes away when explained or rebutted by established of positive proof.Presumption of law is conclusive unless rebutted as provided under rule giving rise to presumption.
      The position of presumption of fact is uncertain and transitory.The position of presumption of law is certain and uniform.
      The court can ignore presumption of law however strong it is.The court can’t ignore presumption of law.
      The presumptions of fact are derived on basis of law of nature, prevalent customs and human experience.Presumption of law are derived on established judicial norms and they have become part of legal rules.
      The Court can exercise its discretion while drawing presumption of fact i.e. presumption of fact is discretionary presumption.Presumption of law is mandatory i.e. court is bound to draw presumption of law.

      RETROSPECTIVE OPERATION OF STATUTES

      The term “retrospective” is not entirely clear. Literally, it refers to a situation that existed before the relevant Act, or looking backwards. A retroactive statute considers the past and grants a prior transaction different legal consequences than those that were applicable to it at the time it occurred or transpired.

      “A statute is to be deemed retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past.”

      In the case of State Bank’s Staff union (Madras Circle) v. Union of India, the significance of retrospective law was brought to light. It was highlighted that when referring to enactment, the term “retrospective” could relate to a variety of different things, such as changing an existing contract, opening a transaction that was previously closed, changing accumulated rights and remedies, or changing a procedure. A legislation that is retroactive revokes or otherwise affects vested rights that have been gained in accordance with existing laws, or it imposes new responsibilities or obligations on prior transactions or considerations, or it establishes new obligations or disabilities.

      GENERAL PRINCIPLES OF RETROSPECTIVE OPERATION OF STATUTES

      1. POWER TO MAKE RETROSPECTIVE LAWS: The Union Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to certain constitutional and judicially recognized restrictions can legislate prospectively as well as retrospectively. Competence to make a law for a past period on a subject depends upon present competence to legislate on that subject. By retrospective legislation, the Legislature may make a law which is operative for a limited period prior to the date of its coming into force and is not operative either oh that date or in future 3. The power to make retrospective legislation enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act.4 This power has also been often used for validating prior executive and legislative acts by retrospectively curing the defect which led to their invalidity and thus even making ineffective judgments of competent courts declaring the invalidity. It is not necessary that the invalidity must be cured by the same Legislature which had passed the earlier invalid Act. Thus if a state Legislature passes an Act subject which fails outside its competence and within the competence of Parliament and is for that reason held invalid, Parliament can by passing retrospective Act which incorporates the State Act cure the invalidity .
      2.  STATUTES DEALING WITH SUBSTANTIVE RIGHTS: It is a cardinal principle construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair Existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is “deemed to be prospective only ‘nova constitutio futurisformam imponere debet non praeteritis’ The rule against retrospective construction is not applicable to a statute merely “because a part of the requisites for its action is drawn from a time antecedent to its passing”.If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is, therefore, not retrospective merely be¬cause it applies also to those to whom pre-amended Act was applicable if the amended Act has operation from the date of its amendment and not an anterior date. 

      Legal position with regard to retrospective operation of a statute

      i) A statute that affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute that only affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning, and should strictly be confined to its clearly defined limits.

      (ii) While remedy-oriented, the law relating to right of action and right of appeal is substantive in nature, whereas the law dealing to forum and limitation is procedural in nature.

      (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

      (iv) Generally speaking, a procedural statute should not be implemented retroactively if the outcome would be to impose new duties on previously completed transactions or establish new obligations or impairments..

      (v) Unless specifically stated differently, either directly or by necessary implication, a statute that not only modifies the process but also creates new rights and obligations must be interpreted as prospective in application..

      CASE NOTE

      The Criminal Procedure Code (Madhya Pradesh Amendment) Act, 2007, is retroactive in how it operates; however, it will not have an impact on cases where the trial before the magistrate has progressed. A case’s trial is said to have advanced when any significant witness or witnesses have been questioned by the prosecution. Madhya Pradesh High Court, 30 March 2016; Dwarka Prasad vs. State of Madhya Pradesh

      CASE LAWS

      In Francis Bennion’s Statutory Interpretation, 2nd Edn, the statement of law is stated as follows :

      “The essential idea of legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex-post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is ‘contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law.”

      In Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 the SC observed as thus “The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.”

      Limitations on enacting retrospective laws

      Retrospective operation is typically only restricted to the degree that it has been made expressly clear to do so or when it has been given the requisite repercussions. However, there is no standard procedure for articulating the legislative intent in retrospect. As a result, the simple absence of a validating phrase would not impact the evident retrospective application of a statutory provision. A statute may be considered retrospective even in the absence of a provision if it is passed for the benefit of the entire community.

      In National Agricultural Coop.Mktg. Federation of India Ltd. Vs. Union of India The legislature’s authority to pass new laws or change existing ones retroactively was subject to restrictions. As a result, this power is not only subject to the question of competence but also to a number of judicially recognized limitations, such as the requirement that retrospective operation be expressly provided for or clearly implied, that it be reasonable and not excessive or harsh, and that it not be used to overturn a judicial decision without removing the statutory basis for it.