Semester III - Case Comments

Semester III - Case Comments

Property Law

1. A filed a case against certain immovable properties, which are in the possession of B. While the case is pending in the court of law, B transferred the property to C, who purchased it without the knowledge of pending suit. ‘A’ disputed C’s right. Decide.

 

1	Facts of the Case / Statement of Facts	A filed a case against certain immovable properties, which are in the possession of B. While the case is pending in the court of law, B transferred the property to C, who purchased it without the knowledge of pending suit. ‘A’ disputed C’s right.
2	Related Topic	This problem is related to doctrine of Lis pendence
3	Framing of Issues	1. Whether ‘B’ can transfer the property while the suit is pending? 2. Whether is the mistake committed by ‘C’ before purchasing the property?  3. Whether ‘C’ is having any remedy?
4	Answering the Issues	Answering to the first issue B can’t transfer the property while the suit is pending. Answering to the second issue if ‘C’ acted in good faith he can claim the damages from the B. Answering to the third issue ‘C’ can file a suit for damages.
5	Provision of Law	Pendency means pending. Lis pendence means pending litigation. According to this doctrine when the litigation is pending before a court with regard to the title of a property. Transfer includes sale, lease, mortgage, gift and exchange. In other word, the transfer of property is prohibited during the pendency of a suit. The suit pending must be related to the question regarding the title in an immovable property. E.g. suit for partition, suit on mortgage, a suit for pre- emption etc. Principle: The doctrine of lis pendence is based on ut lite pendent nihil innovetur. It means during the pendency of litigation, nothing new should be introduced. Object: The object of section52 is to protect the rights of the parties to the suit and to prevent multiplicity of unnecessary litigation in future. Applicability: Section 52 applies only when a suit or proceeding is pending before a court of competent jurisdiction. This section applies also to involuntary transfer made with permission of court. Therefore the transfer made with the permission of the court during the pendency of suit valid.

 

		Conditions: The suit or proceeding must be in pending. The suit must be pending before a competent court.  The suit must be related to the title of an immovable property. The suit must be related to the title either directly or indirectly. The suit or proceeding must no to be collusive The suit property must be transferred. The transfer must effect the rights of other party to the suit. Limitations: Section 52 does not apply to the following The suits which does not deal any question of title or right. The suits relating to debts or damages The suits relating to recovery of agricultural rents The suits relating to recovery of movables. The suits relating to revenue sales. The suits relating to pledge The suits relating to accounts The suits relating to collusive agreements
6	Relevant Case laws	Gurlen Das and Others v. Daram Das and Another 1998 the transfer during pendency of suit or an appeal arising out of that suit is liable to be declared void and invalid. Nata Padhan v. Banchha Beral AIR 1968 a dispute pending before the revenue authorities was held to be within the scope of Section 52. Abdul Aziz v. District, Rampur AIR 1994 execution of an order of the court was held to be part of proceedings. Venkata Rao Ananideo Joshi and Other v. Malatibai & Others AIR 2003 the transfer of property during an appeal was held to be a transfer during pendency of the suit. Rappel Angusthi v. Gopalan AIR 2003 the court held that the transferee is bound by the decision of the court if he had no actual or constructive notice of the suit or proceedings or not.
7	Ratio Decidendi	The reason for the decision is to protect the interest of the person who purchased the property in good faith.
8	Decision	‘B’ can’t transfer the property while the suit is pending. But ‘C’ can claim the damages from ‘B’
9	Conclusion	The doctrine provides when the litigation is pending before a court with regard to the title of a property.

2. A transferred a house to B with a condition that if B sold it, he must sell it C only, and nobody else. Here there is a chance to sell the house only to C, but not to anybody else. Decide.

 

1	Facts of the Case / Statement of Facts	A transferred a house to B with a condition that if B sold it, he must sell it C only, and nobody else. Here there is a chance to sell the house only to C, but not to anybody else
2	Related Topic	This problem is related to condition restraining alienation.
3	Framing of Issues	Whether the seller is having any right to put a restraint on alienation? What are the conditions made by the seller is valid? Whether the seller can put an absolute restraint on alienation?
4	Answering the Issues	Answering to the first issue seller may put a partial restraint on alienation. Answering to the second issue if the condition is partial it is valid. Answering to the third issue seller can’t put absolute restraint
5	Provision of Law	Condition restraining alienation means condition restricting transfer. The owner of a property has an absolute right to transfer Similarly the buyer must also be allowed to transfer at his will. The owner should not impose any condition restricting the subsequent transfer. According to Section 10 any condition restricting the buyer to alienate the property is void. Principle: Rule against inalieanability is based on the Principe that aright of transfer is incidental to, and inseparable form, the beneficial ownership of the property. Hence an absolute an absolute restraint on the power of transfer is not valid. This section incorporates rule of justice, equity and good conscience. Restraint may be 1) Absolute or 2) partial. Absolute restraint is void but partial restraint is valid. Absolute restraint: If a condition takes away the right to transfer substantially, it is called absolute restraint. A condition totally restraining alienation is void. Instances of absolute restraint Not to transfer to anybody in this world. Not to transfer for a period of 100 years. Not to transfer to anyone except to the transferor. Partial restraint: If a condition does not take away the right to transfer substantially, it is called partial restraint. A condition only partially restricting alienation is valid. Instances of absolute restraint Not to transfer to a particular class of persons e.g. doctors.

 

		Not to transfer for a period of 2 years. To transfer to any purpose except religious purpose. Exceptions: section 10i snot applicable to in the following cases. 1.  Lease: A condition in a lessee shall not subject or assign is valid.   2.  For the benefit of a married woman: A condition restraining the property during her lifetime of a coverture i.e. married woman is valid. However, this is not applicable to Hindus, Mohammedans or Buddhists. It applies only to Christian women.
6	Relevant Case laws	Rosher v. Rosher 1884 , the testator devised an absolute estate to his son with a provisio that if he sold during the life time of his wife, she should have an option of purchasing the estate at a price which was one-fifth of the market value. The court held as an absolute restraint and void.   Renand v. Tourangean 1867, a restriction for a period of 20 years was held to be an absolute restraint. Mata Prasad v. Nageher Sahal 1925 a condition restraining transferee from alienating during widow’s lifetime was held to be partial restraint and therefore valid. Mohammed Raza v. Abbas Bandi Bibi 1932 a condition restraining the transferee from transfreeing to a stranger, i.e. outside the family, was held to be partial restraint and therefore valid.
7	Ratio Decidendi	The owner of a property has an absolute right to transfer Similarly the buyer must also be allowed to transfer at his will.
8	Decision	It was held that the restraint is a absolute one and such condition is a void.
9	Conclusion	It was concluded that the owner should not impose any condition restricting the subsequent transfer. According to Section 10 any condition restricting the buyer to alienate the property is void.

3. Property is given to ‘X’ for life then ‘Y’ a bachelor for life and afterwards to all the children of ‘X’ when the last child attains majority. Is the transfer valid?

1	Facts of the Case / Statement of Facts	Property is given to ‘X’ for life then ‘Y’ a bachelor for life and afterwards to all the children of ‘X’ when the last child attains majority.
2	Related Topic	This problem is related to rule against perpetuity.
3	Framing of Issues	Whether the owner of the property can transfer the interest on the property to anybody? Is there any limitation to transfer of interest on property? Whether rule against perpetuity is a valid or not ?
4	Answering the Issues	Answering to the first issue owner can’t transfer the property to unlimited members. Answering to the second issue only interest should be made to living persons only. Answering to the third issue rule against perpetuity is valid.
5	Provision of Law	Rule against perpetuity: The rules of law affecting perpetuities are based upon considerations of public policy. Although the principle of private ownership requires that an owner of property is to have power to dispose as he thinks fit, either during life or on death, of his whole interest in the property he owns, public policy requires that the power should not be abused. Accordingly from early times, the law has discouraged dispositions of property, which either impose restrictions on future alienations of that property, or fetter to an unreasonable extent its future devolution or enjoyment.   The rule against perpetuity has been dealt with in the Section 142 of the Transfer of Property Act, 1882 (henceforth referred to as ―the Act‖). Sections 10 to 17 of the Transfer of Property Act have been enacted to encourage free alienation and circulation of property. The object of the rule against perpetuity as embodied in the Section 14 is to restrain the creation of future conditional interest in the property. It concerns rights of property only and does not concern the making of contracts which do not create the rights of property. It does not therefore apply to personal contracts which in effect do not create interest in any property. An ordinary contract for purchase entered into after the Transfer of Property does not by itself create any interest in land but the obligation can be enforced against a subsequent gratuitous transferee from the vendor of a transferee of value but with notice. From times immemorial, the owner of the

		property has a vested right in him to deal with it in accordance with his discretion.
6	Relevant Case laws	Duke of Norfolk's Case of 1682. That case concerned Henry, 22nd Earl of Arundel (later the Duke of Norfolk), who had tried to create a shifting executory limitation so that one of his titles would pass to his eldest son (who was mentally deficient) and then to his second son, and another title would pass to his second son, but then to his fourth son. The estate plan also included provisions for shifting the titles many generations later, if certain conditions should occur. When his second son, Henry, succeeded to one title, he did not want to pass the other to his younger brother, Charles. Charles sued to enforce his interest, and the court (in this instance the House of Lords) held that such a shifting condition could not exist indefinitely. Illustration: A common example of the rule in application would be as follows. T writes a will. T already has great- grandchildren, has met them, and likes them. T also has Blackacre. It is T's desire to leave Blackacre for her family to enjoy, and wants to ensure that her great-grandchildren, whom she knows, get to enjoy Blackacre as well without her great-grandchildren's older ancestors, such as T's children and grandchildren, selling Blackacre. After her great- grandchildren, T really has no interest in who enjoys Blackacre, as she does not know them. T goes to her lawyer and explains her desire. T's lawyer drafts a will with the following clause:“ Blackacre to my children for their lives, then to their children for their lives, then to their children their heirs and assigns. ” However, the Rule against Perpetuities would void the interest to T's great-grandchildren, and leave the will creating the successive life estates with a reversionary interest in T's estate.
7	Ratio Decidendi	The reason for the decision is the object of the rule against perpetuity as embodied in the Section 14 is to restrain the creation of future conditional interest in the property.
8	Decision	The transfer is void.
9	Conclusion	It was concluded that the rule against perpetuity concerns rights of property only and does not concern the making of contracts which do not create the rights of property. It does not therefore apply to personal contracts which in effect do not create interest in any property.

4. X mortgaged his properties to Y. Y, the mortgage imposed a condition that X has no right to redeem the properties for 50 years. Y disputed this later. Advice.

1	Facts of the Case / Statement of Facts	X mortgaged his properties to Y. Y, the mortgage imposed a condition that X has no right to redeem the properties for 50 years.
2	Related Topic	This problem is related to doctrine of clog on redemption.
3	Framing of Issues	Whether the mortgagor is having right to redeem his property from mortgagee? Whether the mortgagee can put a condition to redeem the property? Whether the condition made by mortgagee in this problem is a valid or not?
4	Answering the Issues	Answering to the first issue mortgagor is having a right to redeem hi property. Answering to the second issue mortgagee can’ put a condition on redemption of property. Answering to the third issue any condition which becomes clog o n redemption is void.
5	Provision of Law	Doctrine of Clog: Historically, a mortgagor (the borrower) and a mortgagee (the lender) executed a conveyance of legal title to the property in favour of the mortgagee as security for the loan. If the loan was repaid, then the mortgagee would return the property; if the loan was not repaid, then the mortgagee would keep the property in satisfaction of the debt. The equity of redemption was the right to petition the courts of equity to compel the mortgagee to transfer the property back to the mortgagor once the secured obligation had been performed. Today, most mortgages are granted by statutory charge rather than by a formal conveyance, although theoretically there is usually nothing to stop two parties executing a mortgage in the more traditional manner. Traditionally, the courts have been astute to ensure that the mortgagee did not introduce any artificial stipulations into the contractual arrangements to impede a mortgagor's ability to satisfy obligations and reclaim their property. Such impediments are "clogs" on the equity of redemption, and the courts of equity were particularly astute to strike down any provision which was, or in later cases, which might be, a clog.

 

		Where collateral is hypothecated in prime brokerage transactions, it is quite common for the broker to re- hypothecate the collateral, but concerns remained that because the re-hypothecation might, theoretically, mean that the lender might lose title to the collateral themselves, and thereby be unable to reconvey it to the primary customer, it was speculated that such re-hypothecation might be unlawful.   The tide has for some years now turned against striking down every clause in a mortgage document that might conceivably impede the right to redeem.[The equity of redemption is itself recognised as a separate species of property, and can be bought, sold or even itself mortgaged by the holder. Historically the equity of redemption would naturally expire upon the mortgagor breaching the terms of repayment. However, in modern times, extinguishing the equity of redemption (and leaving the mortgagee with absolute title to the property) ordinarily requires a court order in most jurisdictions. For both legal and practical reasons, the use of foreclosure as a remedy has fallen into disuse. Even where a mortgagee seeks an order for foreclosure from the courts, the courts will frequently order judicial sale of the property instead.
6	Relevant Case laws	B.K.K Dholi v. B.M.Darjeeni AIR 1980, a condition in the mortgage deed that the land is irredeemable for 95 years was held to be a clog on the right to redemption. Sunder Koer v. Shan Krishen 1906, a condition to enhance the rate of interest in case of default in payment was held to be a clog.
7	Ratio Decidendi	The reason for the decision is the mortgagor can redeem his property whenever he wants, if any condition is there on redemption it may relating to period or manner it is void.
8	Decision	It was held that the period of 50years on redemption is void.
9	Conclusion	The equity of redemption was the right to petition the courts of equity to compel the mortgagee to transfer the property back to the mortgagor once the secured obligation had been performed.

 

 

Labour Law-I

1. A trade union served a notice of strikes in one industry. The employer instigated some of the members of trade union not to participate in strike. The trade union preferred to initiate legal action against the employer. Advice.

 

1	Facts of the Case / Statement of Facts	A trade union served a notice of strikes in one industry. The employer instigated some of the members of trade union not to participate in strike. The trade union preferred to initiate legal action against the employer.
2	Related Topic	This problem is related to unfair labour practices on the part of employer.
3	Framing of Issues	Whether the trade union acted accordingly with the Industrial Disputes Act, 1947? Whether the employer can encourage the members not to participate strike? Whether the act of employer come under the unfair lablor practices.
4	Answering the Issues	Answering to the first issue the trade union has given a notice of strike and the trade union is justified. Answering to the second issue employer can’t supposed to instigate the members of trade unions not to participate in strike. Answering to the third issue yes the cat of employer can come under unfair labour practices.
5	Provision of Law	Unfair Labour Practices on the part of Employer: (1)  To interfere with, restrain from, or coerce, workmen in the exercise of their right to organize, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say.- (a)  threatening workmen with discharge or dismissal, if they join a trade union; (b)  threatening a lock-out or closure, if a trade union is organized; (c)  granting wage increase to workmen at crucial periods of trade union organization, with a view to undermining the efforts of the trade union at organization. (2) To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say, (a)  an employer taking an active interest in organizing a trade union of his workmen; and (b)  an employer showing partiality or granting favor to one of several trade unions attempting to organize his workmen

		or to its members, where such a trade union is not a recognized trade union. (3)  To establish employer sponsored trade unions of workmen. (4)  To encourage or discourage membership in any trade union by discriminating against any workman, that is to say, (a)  discharging or punishing a workman, because he urged other workmen to join or organize a trade union; (b)  discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act); (c)  changing seniority rating or workmen because of trade union activities; (d)  refusing to promote workmen of higher posts on account of their trade union activities; (e)  giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union;
6	Relevant Case laws	Raymond Ltd. and Anr. Vs. Tukaram Tanaji Mandhare and Anr. - Mar 9 2011 Issue before court is Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 3(5) and 28; Industrial Disputes Act, 1947; Bombay Industrial Relations Act, 1946 - Section 3(13) and 3(14) The company had contended that the complainants were employed through the contractors and that the issue regarding maintainability of the complaints would have to be decided by the court.   Illustration 1: A trade union served a notice of strikes in one industry. The employer instigated some of the members of trade union not to participate in strike. The trade union can initiate legal action against the employer.
7	Ratio Decidendi	The reason for the decision is to discourage the unfair labour practices on the part of employer.
8	Decision	It was held that trade union can initiate the proceedings against the employer.
9	Conclusion	It was concluded that Unfair labour practices it may be on the part of employee or on the part of employer it should be avoided otherwise the industry can’t function successfully.

2. A workman committed an offence in one industry. The employer lodged a police complaint. Basing on police findings, the workman was terminated from service without conducting any domestic enquiry. Decide.

 

1	Facts of the Case / Statement of Facts	A workman committed an offence in one industry. The employer lodged a police complaint. Basing on police findings, the workman was terminated from service without conducting any domestic enquiry
2	Related Topic	This problem is related to Domestic inquiry under Industial Disputes Act,1947.
3	Framing of Issues	If workman commits anything what will be the immediate step on the part of employer? Whether the employer is justified to remove him job based on the findings made by police? Whether workman can challenge the termination of his service?
4	Answering the Issues	Answering to the first issue employer should appoint a domestic enquiry. Answering to the second issue employer can’t remove him job based on the findings made by police. Answering to the third issue yes workman can challenge the termination of his service
5	Provision of Law	Domestic enquiry: For the smooth functioning of an industry, the defined codes of discipline, contracts of service by awards, agreements and standing orders must be adhered to. In the event of an employee not complying with these codes of conduct, he is liable to face disciplinary actions initiated by the Management according to the Standing Order. This procedure is called Domestic Enquiry and it is conducted in accordance with the standing order/agreements.   Domestic enquiry is not considered as a legal requirement under the Industrial Disputes Act, or other substantive laws such as the Factories act, Mines Act, etc. but has been provided under the standing orders to be framed in the Industrial Employment (Standing Order Act) 1946. As a result it is now well-established that such standing orders have the force of law and constitute statutory terms of employment.   Definition of Domestic Enquiry: Based on the above description of domestic enquiry, we understand that the term domestic enquiry is mainly used to refer to an enquiry into the charges of indiscipline and misconduct by an employee. In common parlance, domestic enquiry means departmental

 

		enquiry or domestic tribunal. In such enquiries, the matter is decided by administrative officers and not by courts of law. In cases of alleged indiscipline, it is common for disciplinary authorities in a department or in an industry to appoint an officer or officers to inquire into the allegations against an employee. These enquiries are commonly known as ‘Domestic Enquiries’.   PRINCIPLES OF DOMESTIC ENQUIRY 1.  Rule of Natural Justice must be observed. 2.  The delinquent is entitled to a just hearing. 3.  He can call for his own evidence. 4.  Cross-examine any witness called by the prosecution. 5.  Where rules are laid down, the procedure of such rules must be followed. 6.  Disclose to the employee concerned, the documents of records and offer him an opportunity to deal with it. 7.  Do not examine any witness in the absence of the employee. 8.  The enquiry officer is at liberty to disallow any evidence after recording the reasons in writing.
6	Relevant Case laws	Powari Tea Estate Vs. M.K. Barktaki (1965 II LLJ 102), held that the charge must not contain any expression which would give rise to reasonable apprehension in the mind of the workman against whom the enquiry is held that the management has already made up its mind as to his guilt. So, it must only state the misconduct alleged for which the enquiry has to take place.
7	Ratio Decidendi	The reason for the decision is to protect the interest of the workers, if they commit any offence they should appoint a domestic enquiry. If the offence is serious in nature then they should complaint to the police.
8	Decision	It was held that based on the findings made by the police workman can’t be removed from his job without conviction by the court.
9	Conclusion	It was concluded that domestic enquiry is mainly used to refer to an enquiry into the charges of indiscipline and misconduct by an employee. In common parlance, domestic enquiry means departmental enquiry or domestic tribunal

 

3. A trade union served a notice to go on strike. The employer objected. The union contended that the worker’s have fundamental right to go on strike. Decide.

 

1	Facts of the Case / Statement of Facts	A trade union served a notice to go on strike. The employer objected. The union contended that the worker’s have fundamental right to go on strike.
2	Related Topic	This problem is related to right to strike and illegal strike.
3	Framing of Issues	Whether the right to strike is a fundamental right? Whether the employer can object the strike? What amounts to illegal strike?
4	Answering the Issues	Answering to the first issue strike is not a fundamental right. Answering to the second issue employer can object strike on just grounds. Answering to the third issue strike without notice is a illegal strike.
5	Provision of Law	Introduction - But this right must be the weapon of last resort because if this right is misused, it will create a problem in the production and financial profit of the industry. But right to strike is not a fundamental right but a legal right and with this right statutory restriction is attached in the industrial dispute Act, 1947. Position in India In India unlike America right to strike is not expressly recognized by the law. The trade union Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union in furtherance of a trade dispute which otherwise breach of common economic law. Now days a right to strike is recognized only to limited extent permissible under the limits laid down by the law itself, as a legitimate weapon of Trade Unions. Provision of valid strike under the Industrial Dispute Act, 1947- Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment. Whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike. Section 22(1) of the Industrial Dispute Act, 1947 put certain prohibitions on the right to strike. It provides that no person employed in public utility service shall go on strike in breach of contract:

 

		(a)  Without giving to employer notice of strike with in six weeks before striking; or (b)  Within fourteen days of giving such notice; or (c)  Before the expiry of the date of strike specified in any such notice as aforesaid; or (d)  During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. Notice of strike Notice to strike within six weeks before striking is not necessary where there is already lockout in existence.
6	Relevant Case laws	M/S Burn & Co. Ltd. V, Their Workmen , it was laid down that mere participation in the strike would not justify suspension or dismissal of workmen. Where the strike was illegal the Supreme Court held that in case of illegal strike the only question of practical importance would be the quantum or kind of punishment. To decide the quantum of punishment a clear distinction has to be made between violent strikers and peaceful strikers. Punjab National Bank v. Their Employees , it was held that in the case of strike, the employer might bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. He may call upon employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment, proceed to hold proper inquires according to the standing order and pass proper orders against them subject to the relevant provisions of the Act. Rothas Industries v. Its Union , the Supreme Court held that the remedy for illegal strike has to be sought exclusively in section 26 of the Act. The award granting compensation to employer for loss of business though illegal strike is illegal because such compensation is not a dispute within the meaning of section 2(k) of the Act.
7	Ratio Decidendi	The reason for the decision is strike must be on fair grounds only.
8	Decision	It was held that strike is not a fundamental right.
9	Conclusion	It was concluded that the if strike becomes a right it becomes habit to the employees they will use this weapon whenever they want.

4. X, is a registered trade union. When there was a rift in the industry, the employer started negotiations; X was not invited to participate in the negotiations. When it was objected, the employer contended that X is not a recognized trade union. Decide.

 

1	Facts of the Case / Statement of Facts	X, is a registered trade union. When there was a rift in the industry, the employer started negotiations; X was not invited to participate in the negotiations. When it was objected, the employer contended that X is not a recognized trade union.
2	Related Topic	This problem is related to privileges and immunities of registered trade union.
3	Framing of Issues	Whether the registered trade union is enjoying any privileges? Whether the employer is bound to invite the trade union in participate in negotiation proceedings? Whether the contention of the employer is a justifiable ?
4	Answering the Issues	Answering to the first issue the registered trade union is enjoying more privileges than the unregistered trade union. Answering to the second issue employer invite the trade union in participate in negotiation proceedings if the trade union is registered. Answering to the the contention of the employer is justifiable.
5	Provision of Law	Rights and Priviledges of a registered Trade Union As per section 13, upon registration, a trade union becomes a legal entity and as a consequence, it gets perpetual succession and a corporate seal, it can acquire and hold movable and immovable property, contract through agents, and can sue and get sued. Under section 15 a registered trade union has a right to establish a general fund. Under section 16, a registered trade union has a right to establish a political fund. Subscription to this fund is not necessary for a member. Under section 24, trade unions have the right to amalgamate. Under section 28-F, the executive of a registered trade union has a right to negotiate with the employer the matters of employment or non-employment or the terms of employment or the condition of labor of all or any of the members of the trade union and the employer shall receive and send replies to letters and grant interviews to such body regarding such matters. Immunites available to a registered Trade Union Section 17 confers immunity from liability in the case of criminal conspiracy under section 120-B of IPC, committed by an office bearer or a member. However, this immunity is partial in the sense that it is available only with respect to the

 

		legal agreements created by the members for the furtherance of valid objects of a trade union as described in section 15 of the act. Section 18 confers immunity from civil proceedings in certain cases to a trade union or its office bears or members. In general, a person is liable in torts for inducing another person to breach his contract of employment or for interfering with the trade or business of another. Section 19 Enforceability of agreements - In India, an agreement in restraint of trade is void as per section 25 of Indian Contract Act.
6	Relevant Case laws	West India Steel Company Ltd. vs Azeez 1990 Kerala, a trade union leader obstructed work inside the factory for 5 hrs while protesting against the deputation of a workman to work another section. It was held that while in a factory, the worker must submit to the instructions given by his superiors. A trade union leader has no immunity against disobeying the orders. A trade union leader or any worker does not have any right by law to share managerial responsibilities. A trade union can espouse the cause of workers through legal ways but officials of a trade union cannot direct other workers individually or in general about how to do their work. They do not have the right to ask a worker to stop his work or otherwise obstruct the work of the establishment. An employer may deal with a person causing obstruction in work effectively. P Mukundan and others vs Mohan Kandy Pavithran 1992 Kerala, it was held that strike per se is not an actionable wrong. Further, it was held that the trade union, its officers, and its members are immune against legal proceedings linked with the strike of workmen by the provisions of section 18. Rohtas Industries Staff Union vs State of Bihar AIR 1963, it was held that employers do not have the right to claim damages against the employee participating in an illegal strike and thereby causing loss of production and business.
7	Ratio Decidendi	The reason for the decision is to only registered trade union only can have a right to participate in negotiation proceedings.
8	Decision	It was held that the contention of the employer is justifiable.
9	Conclusion	It was concluded that the registered trade unions enjoying the privileges to participate in negotiation proceedings.

Company Law

1. The board of Directors of ‘X’ Company appointed Y as the managing director and gave him all powers of management of the company affairs. Y had manipulated the accounts of the Company to show that the company was running on very sound lines and also distributed dividends. But after two years he stated that he manipulated the accounts.

How far he is responsible for this loss of the share holders?

 

1	Facts of the Case / Statement of Facts	The board of Directors of ‘X’ Company appointed Y as the managing director and gave him all powers of management of the company affairs. Y had manipulated the accounts of the Company to show that the company was running on very sound lines and also distributed dividends. But after two years he stated that he manipulated the accounts
2	Related Topic	This problem is related to the responsibility of directors of the company.
3	Framing of Issues	Whether the director is responsible to appoint a Managing director? Whether the Managing director is responsible for manipulation of accounts? What is the crime committed by the managing director?
4	Answering the Issues	Answering to the first issue directors can’t be made liable for the acts done by the managing director. Answering to the second issue managing director is responsible for manipulation of accounts. Answering to the third issue managing director committed an economic crime.
5	Provision of Law	Director’s Responsibility: Directors are agents of the Company in transactions they enter into on behalf of the Company, though they are not agents for individual shareholders or members. A director may be an employee, a servant or even a "worker" of the Company. He occupies the position of a trustee, though he is not a trustee in the strict sense in respect of the Company’s properties and funds. Civil Liability to the Company- director’s liability to the Company may arise where (1)  the directors are guilty of negligence, (2)  the directors committed breach of trust, (3) there has been misfeasance and (4) the director has acted ultra vires and the funds of the company have been applied for such an act.

 

		Misleading Prospectus- A director is liable to compensate a person who has subscribed shares on the faith of a prospectus, which contained untrue statement. The Director should compensate every such subscriber for any loss or damage he may have sustained by reason of such untrue statement in an action in tort and also under section 62 of the Act to pay compensate.
6	Relevant Case laws	R.K. Dalmia and others v. The Delhi Administration it was held that "A director will be personally liable on a company contract when he has accepted personal liability either expressly or impliedly. Directors are the agents or the trustees of a Company." J.K. Industries v. Chief Inspector of Factories that the directors being in control of the company’s affairs cannot get rid of their managerial responsibility by nominating a person as the occupier of the factory. The rule is, however, not inflexible. A director might be in breach of duty if he left to others the matters to which the Board as a whole had to take responsibility. Directors are responsible for the management of the company and cannot divest themselves of their responsibility by delegating the whole management to agent and abstaining from all enquiries. If the latter proves unfaithful, the liability is that of the directors as if they themselves had been unfaithful. Om Prakash Khaitan v. Shree Keshariya Investment Ltd that it would be proper to relieve directors of consequences of defaults and the breaches unless they are directly involved in the acts or omission complained of or have otherwise not acted honestly or reasonably or have financial involvement in the company.
7	Ratio Decidendi	The reason for the decision is to protect the interest of the shareholder and to punish the white collar crimes.
8	Decision	The Managing director should be punished and he should be compensate for the misleading of prospectus.
9	Conclusion	The Managing director is responsible to for the misleading of prospectus.

 2. Salomon was a boot and shoe manufacturer. He incorporated a company named Salomon & Co Ltd , The seven subscribers to the memorandum were Salomon, his wife, his daughter and four sons and they remained the only members of the company. The company went into liquidation within a year. The unsecured creditors contended that though incorporated under the Act, the company never had an independent existence, it was in fact Salomon under another name; he was the managing director, the other directors being his sons and under his control. It was held that Salomon & Co Ltd was a real company fulfilling all the legal requirements . It must be treated as a company, as an entity consisting of certain corporators , but a distinct and independent corporation. Decide .

 

1	Facts of the Case / Statement of Facts	Salomon was a boot and shoe manufacturer. He incorporated a company named Salomon & Co Ltd , The seven subscribers to the memorandum were Salomon, his wife, his daughter and four sons and they remained the only members of the company. The company went into liquidation within a year. The unsecured creditors contended that though incorporated under the Act, the company never had an independent existence, it was in fact Salomon under another name; he was the managing director, the other directors being his sons and under his control. It was held that Salomon & Co Ltd was a real company fulfilling all the legal requirements. It must be treated as a company, as an entity consisting of certain corporations, but a distinct and independent corporation.
2	Related Topic	This problem is related to corporate personality.
3	Framing of Issues	Whether the Solomon and Salomon & Co Ltd is one and the same or not? Whether the Solomon should pay the creditors or to debentures? Whether the company can be existence even after the liquidation?
4	Answering the Issues	Answering to the first issue the Solomon and Salomon & Co Ltd not one and the same. Answering to the second issue Solomon should pay the money to debenture holders. Answering to the third issue company be a forever even after the death of the members of the company
5	Provision of Law	Corporate Personality is the creation of law. Legal personality of corporation is recognized both in English and Indian law. A corporation is an artificial person enjoying in law capacity to have rights and duties and holding property. A corporation is distinguished by reference to different kinds of things which the law selects for personification. The

 

		individuals forming the corpus of corporation are called its members. The juristic personality of corporations pre-supposes the existence of three conditions : (1)  There must be a group or body of human beings associated for a certain purpose. (2)  There must be organs through which the corporation functions, and (3)  The corporation is attributed will by legal fiction. A corporation is distinct from its individual members.
6	Relevant Case laws	Saloman v. Saloman & Co [1897] AC 22. In this case Salomon was a boot and shoe manufacturer. He incorporated a company named Salomon & Co Ltd , for the purpose of taking over and carrying on his business. The seven subscribers to the memorandum were Salomon, his wife, his daughter and four sons and they remained the only members of the company. The company went into liquidation within a year. The unsecured creditors contended that though incorporated under the Act, the company never had an independent existence, it was in fact Salomon under another name; he was the managing director, the other directors being his sons and under his control. It was held that Salomon & Co Ltd was a real company fulfilling all the legal requirements . It must be treated as a company, as an entity consisting of certain corporators , but a distinct and independent corporation. Thus it was decided in this case that a corporate body has its own existence or personality separate and distinct from its members and therefore, a shareholder cannot be held liable for the acts of the company even though he holds virtually the entire share capital. The case has also recognized the principle of limited liability of a company. Gopalpur Tea Co. Ltd. v. Penhok Tea Co, Ltd. (1982) 52 Comp. Out. 238,, the court while applying the doctrine of company's perpetual succession observed that though the whole undertaking of a company was taken over under an Act which purported to extinguish all rights of action against the company, neither the company was thereby extinguished nor any body's claim against it.
7	Ratio Decidendi	The reason for the decision is company is existed even after the death of the members.
8	Decision	The Solomon should pay the money to debenture holders.
9	Conclusion	It was concluded that the important feature of the company is corporate personality it will be existed forever.

3. Owing to the trade depression, a company has suspended its trade temporarily with a bonafide intention to continue the same when there is improvement in the conditions. A petition was filed before the tribunal for winding up of the company as a just and equitable measure. Decide whether tribunal can order for the winding up of the company. Give reasons and principles.

 

1	Facts of the Case / Statement of Facts	Owing to the trade depression, a company has suspended its trade temporarily with a bonafide intention to continue the same when there is improvement in the conditions. A petition was filed before the tribunal for winding up of the company as a just and equitable measure.
2	Related Topic	This problem is related to the winding of the company by the tribunal.
3	Framing of Issues	Whether the company can suspend the trade temporarily? Whether the tribunal can give an order of winding up of company? Under these circumstances the tribunal can order for winding up of a company?
4	Answering the Issues	Answering to the first issue company can suspend the trade in good faith. Answering to the second issue tribunal can give an order for winding up. Answering to the third issue in this case tribunal can give an order for winding up of a company
5	Provision of Law	Winding up or liquidation of a company represents the last stage in its life. It means a proceeding by which a company is dissolved. The assets of the company are disposed of, the debts are paid off out of the realized assets (or from contributions from its members), and the surplus, if any, is then distributed among the members in proportion to their holdings in the company. The two terms ‘winding up’ and ‘liquidation’ are used interchangeably. According to Prof. Gower, winding up of a company is a process whereby its life is ended and its property administered for the benefit of its creditors and members. An administrator, called liquidator, is appointed and he takes control of the company collects its assets, pays its debts and finally distributes any surplus among the members in accordance with their rights.   Winding up by the Court 9Sec.433-483) Winding up of a company under the order of a Court is also known as compulsory winding up. Grounds for compulsory Winding up (Section 433) : A company may be wound up by the Court in the following cases:

 

		1.  Special resolution of the company 2.  Default in delivering the statutory report to the Registrar or in holding statutory meeting 3.  Failure to commence, or suspension of, business 4.  Reduction in membership 5.  Inability to pay its debts
6	Relevant Case laws	Pirie v. Stewart. (1904) 6 F. 847. A shipping company lost its only ship, the remaining asset being a paltry sum of £363. A majority in number and value of shareholders petitioned for its compulsory winding up but a minority shareholder opposed this and desired to carry on the business as charterer. Held, it was ‘just and equitable’ that the company should be wound up. German Date Coffee Co., Re (1882) 20 Ch. D. 169. In this case, the objects clause of the German Date Coffee Co. stated that it was formed for the working of a German patent which would be granted for making a partial substitute for coffee from dates and for the acquisition of inventions incidental thereto and also other inventions for similar purposes. The German patent was never granted but the company did acquire and work a Swedish patent and carried on business at Hamburg where a substitute coffee was made from dates, but not under the protection of a patent. Held, on a petition by 2 shareholders, that the main object could not be achieved and, therefore, it was ‘just and equitable’ that the company should be wound up. Yenidje Tobacco Co. Ltd., Re (1916) 2 Ch. 426. A and B were the only shareholders and directors of a company with equal rights of management and voting power. After a time they became bitterly hostile to each other and disagreed about the appointment of important servants of the company. All communications between them were made through the secretary as they were not on speaking terms with each other. The company made large profits in spite of the disagreement. Held, there was a complete deadlock in the management and the company was ordered to be wound up.
7	Ratio Decidendi	The reason for the decision is here the company suspended the trade only for temporary purpose with a good faith.
8	Decision	The tribunal can’t give an order in this case
9	Conclusion	It was concluded that if the company failure to commence, or suspension of, business and they don’t have any intention to run the business in future.

4. A company issued a bond under its common seal signed by two directors. The Articles of Association provided that the directors might borrow on bond such sums as they should be authorized by an ordinary resolution of the share holders. No such resolution was passed. Is the company liable on bond ? Give reasons and elucidate the principles involved in this case.

1	Facts of the Case / Statement of Facts	A company issued a bond under its common seal signed by two directors. The Articles of Association provided that the directors might borrow on bond such sums as they should be authorized by an ordinary resolution of the share holders. No such resolution was passed.
2	Related Topic	This problem is related to doctrine of indoor management.
3	Framing of Issues	Whether the company should bound by its articles or not? Whether the Directors should follow the Articles of the company? Whether the failure of such resolution is barring to get the money from company ?
4	Answering the Issues	Answering to the first issue
5	Provision of Law	Doctrine of Indoor Management: Memorandum of Association and articles of association are two most important documents needed for the incorporation of a company. The memorandum of a company is the constitution of that company. It sets out the (a) object clause, (b) name clause, (c) registered office clause, (d) liability clause and (e) capital clause; whereas the articles of association enumerate the internal rules of the company under which it will be governed. Undoubtedly, both memorandum of association and the articles of association are public documents in the sense that any person under section 610 of Indian company act, 1956 may inspect any document which will include the memorandum and articles of the company kept by the registrar of companies in accordance with the rules made under the destruction of records act, 1917 being documents filed and registered in pursuance of the act.   As a consequence, the knowledge about the contents of the memorandum and articles of a company is not necessarily restricted to the members of the company alone. Once these documents are registered with the registrar of companies, these become public documents and are accessible by any members of the public by paying the requisite fees. Therefore, notice about the contents of memorandum and articles is said to be within the knowledge of both members and non-members of the company. Such notice is a deemed notice in case of a members and a constructive notice in case of non-members.

		The doctrine of indoor management is an exception to the rule of constructive notice. It imposes an important limitation on the doctrine of constructive notice. According to this doctrine "persons dealing with the company are entitled to presume that internal requirements prescribed in memorandum and articles have been properly observed".
6	Relevant Case laws	Royal British Bank v. Turquand. (1856) 6 E&B 327The doctrine of indoor management is also known as the TURQUAND rule after Royal British Bank v. Turquand. In this case, the directors of a company had issued a bond to Turquand. They had the power under the articles to issue such bond provided they were authorized by a resolution passed by the shareholders at a general meeting of the company. But no such resolution was passed by the company. It was held that Turquand could recover the amount of the bond from the company on the ground that he was entitled to assume that the resolution was passed. Illustration :In another case where the plaintiff sued the defendant company on a loan of Rs.1,50,000, it was held that where the act done by a person, acting on behalf of the company, is within the scope of his apparent or ostensible authority, it binds the company no matter whether the plaintiff has read the document or not. In this case among other things the defendant company raised the plea that the transaction was not binding as no resolution sanctioning the loan was passed by the Board of directors. The court after referring to turquand's case and other Indian cases, held that the passing of such a resolution is a mere matter of indoor or internal management and its absence under such circumstances, cannot be used to defeat the just claim of a bona fide creditor.
7	Ratio Decidendi	The reason for the decision is each and every person who contacted with the bank they were presumed that everything happens according to articles.
8	Decision	It was held that the company is liable to pay the money to the creditors.
9	Conclusion	It was concluded that as a consequence, the knowledge about the contents of the memorandum and articles of a company is not necessarily restricted to the members of the company alone.

 

Public International Law

1. “A” person who commits crime in India and he fled to U.S.A. As the request made by the Indian government U.S.A government handed over him to India, the Indian government made another charges against A after he extradited other than the grounds for the extradited. “A” wants to challenge? Advice.

1	Facts of the Case / Statement of Facts	“A” person who commits crime in India and he fled to U.S.A. As the request made by the Indian government U.S.A government handed over him to India, the Indian government made another charges against A after he extradited other than the grounds for the extradited. “A” wants to challenge
2	Related Topic	This problem is related to extradition.
3	Framing of Issues	Whether the A should be extradited by U.S.A? On what grounds he can be extradited? If the offender is political offender what is the consequence?
4	Answering the Issues	Answering to the first issue if there is any agreement between Indian and U.S.A then “A” should be extradited. Answering to the second issue if the person can’t be a political offender. Answering to the third issue If the offender is political offender he can’t be extradited.
5	Provision of Law	Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. Extradition treaties or agreements The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders. No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with several nations, including the People's Republic of China, Namibia, the United Arab Emirates, North Korea, and Bahrain Bars to extradition By enacting laws or concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Common bars to extradition include: Failure to fulfill dual criminality - generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties.

 

		Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Once the asylum state extradites an individual to the requesting state under the terms of an extradition treaty, that person can be prosecuted only for crimes specified in the extradition request. This doctrine allows a nation to require the requesting nation to limit prosecution to declared offenses. US courts have been divided on allowing standing to assert the doctrine when the other nation has not explicitly or implicitly protested certain charges.
6	Relevant Case laws	United States v. Rauscher, 119 U.S. 407 (U.S. 1886)] A person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. Re Meunter Case (1894) the accused namely Meunter caused an explosion ina France and fled to England. France requested England extradite the accused. The accused contended that he was a political offender and he should not be extradited. The Queen’s Bench held that the accused was not a political offender because there was no political dissatisfaction in France.
7	Ratio Decidendi	The reason for the decision is the doctrine of specialty was recognized by international law so it extradition procedure should be made accordingly.
8	Decision	It was held that the Indian government can’t made other charges other than the person extradited.
9	Conclusion	It was concluded that Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses.

 

2. Due to nuclear testing carried out by State X, people and environment of Y nearby border village of Y suffered severe damage- Y sued X- Decide.

1	Facts of the Case / Statement of Facts	Due to nuclear testing carried out by State X, people and environment of Y nearby border village of Y suffered severe damage- Y sued X
2	Related Topic	This problem is related to state responsibility for violation of international law.
3	Framing of Issues	Whether the State X can carry the nuclear test ? Whether the State X violated any international law? What is the responsibility of the State X towards the state Y?
4	Answering the Issues	Answering to the first issue X can’t carry the nuclear test. Answering to the second issue X is violated the international law. Answering to the third issue State X should pay the damages to the State Y.
5	Provision of Law	State Responsibility: According to the articles of the International Law Commission, “full reparation for the injury caused by the internationally wrongful act shall take the form of restitution,” which means the re-establishment of the situation which existed before the wrongful act was committed.126 The application of this generally recognized principle raises major problems for health and environmental damages. Such damages are not easy to evaluate, and in some situations re-establishment of the situation is not possible. The extinction of a species of wild flora or fauna which had no commercial value provides an example. Nuclear activities can also, so the establishment of the causal link with the activity can be very difficult if not impossible. The Convention on Supplementary Compensation for Nuclear Damage adopted in Vienna on September 12, 1997, uses the term “reinstatement” instead of the usual word “reparation” of environmental damage.127 This might be explained by the intention to avoid confusion The Convention mainly concerns national procedures. Still, it can quote the definition given: ‘Measures of reinstatement’ means any reasonable measures which have been approved by the competent authorities of the State where the measures were taken, and which aim to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of these components The law of the State where the damage is suffered shall determine who is entitled to take such measures.128 Although the Convention applies to nuclear damage for which an operator of a nuclear installation used for peaceful purposes situated in the territory of a Contracting Party is liable, the installation state shall ensure the availability of a shall be distributed “without

 

		discrimination on the basis of nationality, domicile or residence.”130 The national law of the Contracting Parties should conform to the provisions of the Convention providing for strict liability and requiring the indemnification of any person other than the operator liable for nuclear damage. It flows from the rules of international law that if a contracting party fails to event such provisions; its international responsibility can be invoked. According to Article 46 of the articles of the International Law Commission, “[w]here several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act.”132 This principle, which expresses customary international law, could have been invoked by each State whose territory was affected by the consequences of the 1986 Chernobyl accident. It is characteristic that, owing to the difficulty of establishing the causal link between the explosion and the damage to human health, to flora and fauna and to other natural resources on the one hand and the time which could elapse between the accident and the consequences which it produced on the other hand, the reaction of the international community was the exceptionally
6	Relevant Case laws	Corfu Channel case 1949 the international court of justice held that Albania was responsible to pay compensation for the explosions that took place. Therefore the States are responsible for the breach of rules of international law. Such responsibility may derive from a treaty or customary law.
7	Ratio Decidendi	The reason for the decision is to curtail the illegal activities carried by the Sates .
8	Decision	It was held that State X is responsible to the damage made by the State Y.
9	Conclusion	It was concluded that the nations who violated the international law is responsible.

3.  “X” person who commits crime in India and he fled to England and takes the shelter under asylum. He pleaded that he committed apolitical offence he can’t be extradited. Decide.

 

1	Facts of the Case / Statement of Facts	“X” person who commits crime in India and he fled to England and takes the shelter under asylum. He pleaded that he committed apolitical offence he can’t be extradited.
2	Related Topic	This problem is related to Asylum.
3	Framing of Issues	Whether the A can get shelter under Asylum? Whether the England should bind to give the asylum? What is the basis to recognize the political offender?
4	Answering the Issues	Answering to the first issue A will get the shelter. Answering to the second issue generally as per the international law each and every country should give asylum. Answering to the third issue if the person commits a political crime which is relating to overthrow the government.
5	Provision of Law	Right of asylum (or political asylum, from the Greek :It is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries (as in medieval times). This right has its roots in a longstanding Western tradition—although it was already recognized by the Egyptians, the Greeks and the Hebrews—Descartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War, etc.; each state offered protection to foreign persecuted persons. Political asylum is similar, but not identical, to modern refugee law, which deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered on a case-to-case basis. There is overlap between the two because each refugee may demand political asylum on an individual basis Remains of one of four medieval stone boundary markers for the sanctuary of Saint John of Beverley in the East Riding of Yorkshire.   India’s status as a preferred refugee haven is confirmed by the steady flow of refugees from many of its sub-continental neighbours as also from elsewhere. India continues to receive them despite its own over-a-billion population with at least six hundred million living in poverty with limited access to basic amenities. However, the Indian legal framework has no uniform law to deal with its huge refugee population, and has not made any progress towards evolving one either; until then, it chooses to treat incoming refugees based on their national origin and political considerations, questioning the uniformity of rights and privileges granted to refugee communities.

		Indeed, the National Human Rights Commission (NHRC) has submitted numerous reports1 urging the promulgation of a national law, or at least, making changes or amendments to the outdated Foreigners Act (1946), which is the current law consulted by authorities with regard to refugees and asylum seekers. The primary and most significant lacuna in this law is that it does not contain the term ‘refugee’; consequently under Indian Law, the term ‘foreigner’ is used to cover aliens temporarily or permanently residing in the country. This places refugees, along with immigrants, and tourists in this broad category,2 depriving them of privileges available under the Geneva Convention. According to these sources, new asylum seekers for 2007 numbered about 17,900, in contrast to the mere 600 recorded departures from the country. India mostly plays host to refugees from its neighbouring countries who are either forced to leave their countries of origin due to internal or external conflict, political persecution or human rights infringements.
6	Relevant Case laws	Re Meunter Case (1894) the accused namely Meunter caused an explosion in a France and fled to England. France requested England extradite the accused. The accused contended that he was a political offender and he should not be extradited. The Queen’s Bench held that the accused was not a political offender because there was no political dissatisfaction in France.
7	Ratio Decidendi	The reason for the decision is political offender should be protected as per the asylum law.
8	Decision	“X “ can be protected under Asylum.
9	Conclusion	It was concluded that Political asylum is similar, but not identical, to modern refugee law, which deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered on a case-to-case basis.

4. The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S. Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer. Which country is having jurisdiction to try this matter?

1	Facts of the Case / Statement of Facts	The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S. Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer.
2	Related Topic	This problem is related to State jurisdiction.
3	Framing of Issues	Whether the France government is having jurisdiction to try this matter? Whether Turkey government is having jurisdiction to try the matter? Whether the Turkey government made any international law violation?
4	Answering the Issues	Answering to the first issue as per general rule France government is having jurisdiction. Answering to the second issue Turkey can try this matter. Answering to the third issue no turkey govt. didn’t made any violation
5	Provision of Law	State jurisdiction is one of the most important and ongoing topics of contemporary international law. The significance of this issue and its direct effect in the international relations has increased international interest in state jurisdiction. Moreover, this increment of interest has created a new and modern understanding of each principle of state jurisdiction reflecting universal character rather than national peculiarity.   Historically, it is clear that the existence of state jurisdiction in its basic utilization represented by territoriality was concurrent with the emergence of international law in its classic concept. Furthermore, since it was necessary for the neonate international law to earn its credibility and support in states, it had to prove its effectiveness as the regime looking after international relations and emphasize its ability to provide stability and safety. Therefore, it was the main and most significant policy beyond the establishment of classic international law to provide the states with the elements that were necessary for their existences and securities. Moreover, in order to reach this goal classic international law recognized and granted two principles for all states that were members of international society as the most significant and fundamental principles of international law. These two principles are the principal of sovereignty and  the  principle of  equality.1

 

		According to the principle of sovereignty, within its territory the state has the legal capacity to enact and enforce any law that is necessary for its existence and safety and prosecute who violates these laws.2 The principle of equality obligates the state during its practice of such rights to respect the sovereignty of other state and to guarantee the equal rights to do the same. All these goals will be reached by giving clear idea about the territoriality and its two modern concepts, the subjective territoriality and the objective territoriality. Also, part one will focus on the immunities that can be used to waive the application of territoriality. After completing the analysis and emphasizing the universal affect in its interpretation and application, this thesis will review the second principle.
6	Relevant Case laws	S.S. Lotus Case PCIJ(1927)The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S. Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer, in a region just north of Mytilene. As a result of the accident, eight Turkish nationals aboard the Boz-Kourt drowned when the vessel was torn apart by the Lotus. On 7 September 1927 the case was presented before the Permanent Court of International Justice, the judicial branch of the League of Nations, the predecessor of the United Nations.The issue at stake was Turkey's jurisdiction to try Monsieur Demons, the French officer on watch duty at the time of the collision. Since the collision occurred on the high seas, France claimed that only the state whose flag the vessel flew had exclusive jurisdiction over the matter. France proffered case law, through which it attempted to show at least state practice in support of its position. However, those cases both involved ships that flew the flag of the flag state and were thus easily distinguishable. The Court, therefore, rejected France's position stating that there was no rule to that effect in international law.
7	Ratio Decidendi	The reason for the decision is in these cases both involved ships that flew the flag of the flag state and were thus easily distinguishable. The Court, therefore, rejected France's position stating that there was no rule to that effect in international law.
8	Decision	Turkey government didn’t made any violation of international law.
9	Conclusion	It was concluded that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition.

Interpretation of Statutes

1. The petitioner, the Editor of the English daily newspaper sent a show cause notice by Patna Legislative Assembly why he should not be punished for publication of impugned matter. Petitioner contended that it is a violation of Article19(1)(a0 of the constitution. Decide

 

1	Facts of the Case / Statement of Facts	The petitioner, the Editor of the English daily newspaper sent a show cause notice by Patna Legislative Assembly why he should not be punished for publication of impugned matter. Petitioner contended that it is a violation of Article19 (1)(a) of the constitution.
2	Related Topic	This problem is related to harmonious construction of statutes.
3	Framing of Issues	Whether the petitioner contention is valid or not? Whether the assembly is having any right to punish the petitioner? Whether Article 194(3) of the constitution is a supplement to 19(1) (a)?
4	Answering the Issues	Answering to the first issue the petitioner contention is not a valid one. Answering to the second issue the assembly can punish the persons who breached the privileges of the legislature. Answering to the third issue Art.19(1)(a) is a constructed to the Art.194(3) of the constiturion.
5	Provision of Law	Harmonious Construction: When two statutes are complementary to each other. one statute cannot be allowed to overrule the other. Instead one statute should be interpreted in such a way to compromise with the statute. This is called Harmonious construction of Statutes.
6	Relevant Case laws	Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha And Others 1959 AIR 395,The petitioner, the Editor of the English daily newspaper Searchlight of Patna, was called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges of the Assembly why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a speech delivered in the Assembly by a member thereof, portions of which were directed to be expunged by the Speaker. It was contended on behalf of the Petitioner that the said notice and the proposed action by the Committee were in violation of his fundamental right to freedom of speech and expression under Art. 19(1)(a) and of the protection of his personal liberty under Art. 21 of the Constitution, and that, as an editor of a newspaper, he was entitled to all the benefits of the freedom of the Press. The respondents relied on Art. 194(3) Of the Constitution and

 

		claimed that the proceedings in the House as those in the British House of Commons were not usually meant to be published, and in no circumstances was it permissible to publish the parts of a speech which were directed to be expunged and, therefore, formed no part of the official report and such publication was in clear breach of the privileges of the Assembly. State Bombay .F.N Balsara 1951 Bombay Prohibition Act (XXV of 1949) Constitutional validity -Applicability of Act to foreign liquors--To medicinal and toilet preparations containing alcohol -Validity of ss. 2(24) (a), 12, 13, 23, 24, 39, 40(1) (b), 46, 52, 53, 139 (c)--Law of Province prohibiting possession and sale of foreign liquor within Province-- Whether encroaches on power of Dominion to make laws as to "import and export"--Doctrine of original package-- Applicability to India--Construction of Lists--Restriction on fundamental right "to acquire, hold and dispose of property" and to "equal protection of the laws" --Government of India Act, 1935, s. 297 (4), Seventh Sched., List I entry 19 --List II entry 31--Constitution of India, Arts. 14, 19(1), 19 (2) There is nothing unreasonable in a law relating to prohibition discriminating between Indian citizens against whom it is primarily to be enforced and foreigners who have no intention of permanently residing in India. A provision enabling a certain class of persons holding permits to offer drink to persons holding similar permits is also not unreasonable. Notifications No. 10484/45C and 2843/49 (a) are not therefore invalid.
7	Ratio Decidendi	The reason for the decision is both provisions were contradicting in each other.
8	Decision	It was decided that he should be punished for the breach of privilesge.
9	Conclusion	It was concluded that when two statutes are complementary to each other. One statute cannot be allowed to overrule the other. Instead one statute should be interpreted in such a way to compromise with the statute. This is called Harmonious construction of Statutes.

2. Mr. Ravi, book seller who is arrested for the selling of obscene books, he pleaded that I am not aware of the book whether it’s obscene or not. Decide?

1	Facts of the Case / Statement of Facts	Mr. Ravi, book seller who is arrested for the selling of obscene books, he pleaded that I am not aware of the book whether it’s obscene or not.
2	Related Topic	This problem is related to grammatical interpretation.
3	Framing of Issues	Whether the Mr. Ravi needs to know about the contents of the books? Whether the ignorance of law is not an excuse? Whether he committed any crime or not?
4	Answering the Issues	Answering to the first issue Mr. Ravi need not know the contents of the book but he must aware about the obscene or not. Answering to the second issue ignorance of law is not an excuse. Answering to the third issue he committed a crime under section 292 of I.P.C.
5	Provision of Law	Grammatical interpretation :The statutory expressions sometimes interpreted from the grammar point of view. The provisions of the legislation are understood by grammatical sense. According to Maxwell the phrases and sentences used in the Statutes are to be construed grammatically giving the words their ordinary and natural meaning. The primary rule of interpretation is that the words used must be given their plain grammatical meaning. He explained that the phrases and sentences are to be construed according to the rules of grammar.   According to Salmond the duty of the judicature is to discover and to act upon the true intention of the legislature, the mens or sentantia legis.   Strict construction of Penal statutes: Statutory expressions sometimes interpreted strictly and stringently. This is also known as narrow construction. Generally penal Statutes are to be strictly construed. This type of construction treats Statutory and contractual words with highly restrictive readings. When the provisions of the Act are of an expropriator character it should be strictly construed and its scope should not be extended beyond what is clearly and expressly indicated by its terms. If the words of a penal Statute are clear, effect must be given to them irrespective of the consequences.

 

		When it is said that all penal Statutes are to be construed strictly it only means that the Court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. In other words, the rule of strict construction requires that the language of a Statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the Statute.   Mens rea: Guilty intention is called mens rea. According to the principle of actus non facit reum, nisi mens sit rea an act itself does not constitute guilt unless done with a guilty intent. In other words without guilty intention a physical act cannot be treated as an offence. Even though the Indian Penal Code is silent on the use of the word mens rea, it cannot be said that the principle of mens rea has no application to the crimes mentioned in the Code. The Code used the words like intention, knowledge, or belief in the definition of certain crimes.
6	Relevant Case laws	Ranjit D Udeshi v. State of MAharastra AIR 1965 SC 881, the appeallanta was convicted of the offence of selling an ‘obscene book’- ‘Lady Chatterley’s lover’. In appeal, one of the contentions raised was that the prosecution had to prove that the person who sells or keeps for sale any obscene object knows that it is obscene before he can be adjudged guilty. It was held: “The first sub-section 292 I.P.C, does not make knowledge of obscenity in ingredient of section of 292 I.P.C, does not make the knowledge of existence of obscenity. We can only interpret the law as we find it and if any exception is to be made it is for Parliament to enact a law.” Kedar Nath v. State of West Bengal AIR 1953 SC 404 the appellant committed an offence which was punishable with imprisonment or fine or both. Later the fine was enhanced to a larger extent. The Supreme Court held that this enhanced punishment could not be imposed in view of the Constitutional protection under Article 20(1).
7	Ratio Decidendi	The reason for the decision is statute should be read according to grammar.
8	Decision	Mr. Ravi should be punished under Section 292 of I.P.C.
9	Conclusion	When the provision is clear it should be interpreted according to the grammar.

3. X a prostitute solicited the customers through the windows and balconies, soliciting customers through the streets is an offence. She was prosecuted under street offenders act Can the solicity through windows and balconies be treated as offence? Decide?

 

1	Facts of the Case / Statement of Facts	X a prostitute solicited the customers through the windows and balconies, soliciting customers through the streets is an offence. She was prosecuted under street offenders act.
2	Related Topic	This problem is related to Mischief rule.
3	Framing of Issues	Whether the solicited the customers through the windows and balconies is come under street offenders Act? What is the main intention of the law makers? Whether X should be prosecuted?
4	Answering the Issues	Answering to the first issue solicited the customers through the windows and balconies is come under street offenders Act. Answering to the second issue to suppress the prostitution. Answering to the third issue X should be prosecuted under the Street Offenders Act.
5	Provision of Law	The Mischief Rule is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the "mischief" that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court. The Mischief Rule is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law. Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature. Traditional use of the mischief rule In the century in which it was created, and for some time thereafter, the mischief rule was used in a legislative environment very different than the one which has prevailed in the past two centuries. As Elmer Driedger notes,“ sixteenth-century common law judges…looked upon statutes as a gloss upon the common law, even as an intrusion into their domain. Hence, statutes were viewed

 

		from the point of view of their effect upon the common law, as adding to it, subtracting from it or patching it up…. Advantages It deals in satisfactory way of interpreting Acts It usually avoids unjust or absurd results in sentencing Disadvantages It is seen to be out of dated It ignores common law and parliamentary supremacy It gives too much power to the unelected judiciary which is undemocratic Can make the law uncertain
6	Relevant Case laws	Smith v Hughes (1960) 2 All E.R. 859, where under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street." The Judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes. Bengal Immunity Co. Ltd. v. State of Bihar (1955) 2 SCR 603 the Supreme Court pointed out that the purpose and significance of an enactment is to be found after exploring the shortcomings or the defects which are sought to be removed by means of it by Parliament which does not legislate in vain or without some reason or need for it. Mahijibhai v. Manibhai AIR 1965 SC 1477 the Supreme Court observed that in order to arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act. Similarly in K.S.
7	Ratio Decidendi	The reason for the decision is to suppress the prostitution.
8	Decision	X should be prosecuted under the Street Offenders Act.
9	Conclusion	It was concluded that The Mischief Rule is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention.

4. X a trader of betel leaves sought exemption of sales tax to betel leaves as they are vegetables. Can he succeed to treat betel leaves as vegetables? Decide.

1	Facts of the Case / Statement of Facts	X a trader of betel leaves sought exemption of sales tax to betel leaves as they are vegetables.
2	Related Topic	This problem is related grammatical interpretation.
3	Framing of Issues	Whether the betel leaves can be exempted under tax? Whether the betel leaves can be considered as vegetables? Whether we need to refer any dictionary to know the meaning of a statute.
4	Answering the Issues	Answering to the first issue betel leaves can’t be exempted. Answering to the second issue betel can’t be considered as vegetable. Answering to the third issue no need to refer dictionary.
5	Provision of Law	The statutory expressions sometimes interpreted from the grammar point of view. The provisions of the legislation are understood by grammatical sense. According to Maxwell the phrases and sentences used in the Statutes are to be construed grammatically giving the words their ordinary and natural meaning. The primary rule of interpretation is that the words used must be given their plain grammatical meaning. He explained that the phrases and sentences are to be construed according to the rules of grammar. According to Salmond the duty of the judicature is to discover and to act upon the true intention of the legislature, the mens or sentantia legis. The essence of the law lies in its spirit, not in its letter for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the Courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sentential legis. Grammatical interpretation means interpretation that is based exclusively on the words themselves. It uses words in phrases and sentences to construct meaningful combinations. It is also called as historical-grammatical method. The historical-grammatical method is the primary method of interpretation for scholars in the major branches of Christianity such as Protestant, Roman Catholic, and Eastern Orthodox. The following ‘Eight Rules’ are the heart or center of all grammatical interpretation: 1. Define the terms or words being considered and then adhere to the defined meanings;

 

		2.  Do not add meaning to established words and terms. What was the common usage in the culture and time period when the passage was written; 3.  Avoid using words or phrases out of context. Context must define terms and how words are used; 4.  Do not separate interpretation and historical investigation; 5.  Be certain that words as interpreted agree with the overall premise; 6.  Use the known and commonly accepted meanings of words, not obscure meanings for which there are no precedent; 7.  Even though many documents may be used there must be a general unity among them; 8.  Base conclusions on what is already known and established or can be reasonably implied from all known facts.
6	Relevant Case laws	Motipur Zamindary Co. v. State of Bihar AIR 1962 SC660, the question was whether sugar-cane fell within the term ‘green vegetables’ in Entry 6 of the Schedule and was therefore exempt from assessment to sales tax under the Bihar Sales Tax Act,1947. It was held: “The word ‘vegetable’ in taxing statutes is to be understood as in common parlance, that is, denoting the class of vegetables which are grown in a kitchen garden or in a farm and used for the table. If that is the meaning of the word, sugarcane cannot fall within the entry.”
7	Ratio Decidendi	The reason for the decision is betel leaves can’ be considered as a vegetable because vegetable should be grown in a kitchen garden.
8	Decision	It was held that betel leaves can’t be considered as a vegetables.
9	Conclusion	It was concluded that the main intention of the legislature is exempt the taxes for vegetables not for commercial crops.