India Laws-Bare Act India

Secret contraventions

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[ Note: Subs. by Act 25 of 1983, s.9 (w.e.f. 22-6-1983) ] (1) Whoever does any act in contravention of any of the provisions of section 3,4,10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means or conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.

(2) Whoever does any act in contravention of any of the provisions of section 5,6,7 or 11 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not less than five years but which may extend to ten years and also with fine.

(3 ) Whoever on any search being made under section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine.

Punishment for certain offences

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Prohibition as to carrying of notified arms in or through public places in disturbed areas, etc.

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(1) Where the Central Government is satisfied that there is extensive disturbance in any area and that for the prevention of offences involving the sue of arms in such area and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do -

It may, by notification in the Official Gazette,-

(a) Specify the limits of such area;

(b) Direct that during the period specified in the notification (which period commencing from a date not earlier than the second day after the date of publication of the notification in the Official Gazette), no person shall carry or otherwise have in his possession any arms of such description as may be specified in the notification (the arms so specified being hereafter in this section referred to as notified arms) through or in any public place in such area;

(c) Authorise any such officer subordinate to the Central Government or a State Government as may be specified in the notification,-

(i) To search at any time during the period specified in the notification any person in or passing through, or any premises in or forming part of, of any animal or vessel or vehicle or other conveyance of whatever nature, in or passing through, or any receptacle or other container of whatever nature in, any public place in such area if such officer has reason to believe that any notified arms are secreted by such person or in such premises or on such animal or in such person or in such premises or on such animal or in such vessel, vehicle or other conveyance or in such receptacle or other container;

(ii) To seize at any time during the period specified in the notification any notified arms being carried by or otherwise in the possession of any person, through a search under such-clause (I), and detain the same during the period specified in the notification.

(2) The period specified in a notification issued under sub-section (1) in respect of any area shall not, in the first instance, exceed ninety days, but the Central Government may amend such notification to extend such period from time to time by any period not exceeding ninety days at any one time if, in the opinion of that Government, there continues to be in such area such disturbance of public peace and tranquility as is referred to in sub-section (1) or imminent danger thereof and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do.

(3) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974), relating to searches and seizures shall, so far as may be, apply to any search or seizure made under sub-section (1).

(4) For the purposes of this section,-

(a) "Arms" includes ammunition;

(b) "Public place" means any place intended for use by, or accessible to, the public or any section of the public ; and

(c) Where the period specified in a notification, as originally issued under sub-section (1), is extended under sub-section (2), then, in relation to such notification, reference in sub-section (I) to "the period specified in the notification" shall be construed as reference to the period as so extended.]

Prohibition as to possession of notified arms in disturbed areas, etc.

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[ Note: Ss. 24A and 24B Ins. by Act 25 of 1983, s. 7 (w.e.f 22-6-1983) ] (1) Where the Central Government is satisfied that there is extensive disturbance of public peace and tranquility or imminent danger of such disturbance in any area and that for the prevention of offences involving the use or arms in such area, it is necessary or expedient so to do, it may by notification in the Official Gazette-

(a) Specify the limits of such area;

(b) Direct that before the commencement for the period specified in the notification (which period shall be a period commencing from a date not earlier than the fourth day after the date of publication of the notification in the Official Gazette), every person having in his possession in such area any arms of such description as may be specified in the notification (the arms so specified being hereafter in this section referred to as notified arms), shall deposit the same before such commencement in accordance with the provision of section 21 and for this purpose the possession by such person of any notified arms, shall, notwithstanding anything contained in any other provision of this Act (except section 41) or in any other law for the time being in force, as from the date of publication such notification in the Official Gazette be deemed to have ceased to be lawful;

(c) Declare that as from the commencement of, and until the expiry of, the period specified in the notification, it shall not be lawful for any person to have in his possession in such area any notified arms;

(d) Authorise any such office subordinate to the Central Government or a State Government may be specified in the notification.-

(i) To search at any time during the period specified in the notification any person in, or passing through, or any premises in, or any animal or vessel or vehicle or other conveyance of whatever nature in or passing through, or any receptacle or other container of whatever nature in or passing through in, such area if such officer has been to believe that any notified arms are secreted by such person or in such premises or on such animal or in such vessel, vehicle or other conveyance or in such receptacle or other container;

(ii) To seize at any time during the period specified in the notification any notified arms in the possession of any person in such area or discovered through a search under sub-clause (I), and detain the same during the period specified in the notification.

(2) The period specified in a notification issued under sub-section (1) in respect of any area shall not, in the first instance, exceed ninety days, but in the Central Government may amend such notification to extend such period from time to time by any period not exceeding ninety days at any one time if, in the opinion of that Government, there continues to be in such area such disturbance of public peace and tranquility as if referred to in sub-section (1) or imminent danger thereof and that for the prevention of offences involving the sue of arms in such area it is necessary or expedient so to do.

(3) The provision of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures shall, so far as may be, apply to any search or seizure made under sub-section.-(1).

(4) For the purposes of this section,-

(a) "Arms" includes ammunition;

(b) Where the period specified in a notification, as originally issued under sub-section (1), is extended under sub-section (2), then, in relation to such notification, reference in sub-section (1) to "the period of specified in the notification" shall be construed as references to the period as so extended.

Seizure and detention under orders of the Central Government-

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The Central Government may at any time order the seizure of any arms or ammunition in the possession of any person, notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, any may detain the same for such period as it thinks necessary for the public peace and safety.

Search of vessels, vehicles for arms, etc.

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Any magistrate, any police officer or any other officer specially empowered in this behalf by the Central Government, may for the purpose of ascertaining whether any contravention of this Act or the rules made there under is being or is likely to be committed, stop and search any vessel, vehicle or other means of conveyance and seize any arms or ammunition that may be found therein along with such vessel, vehicle or other means of conveyance.

Search and seizure by magistrate

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(1) Whenever any magistrate has reason to believe -

(a) That any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, or

(b) That such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety, the magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in sate custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession.

(2) Every search under this section shall be conducted by or in the presence of a magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government.

Deposit of arms, etc., on possession ceasing to be lawful

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(1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed force of the Union, in a unit armory.

Explanation –In this sub-section "unitarmoury" includes and armory in a ship or establishment of the Indian Navy.

(2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled-

(a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or

(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal :

Provided that nothing in this sub-section be deemed to authorise the return or disposal of anything of which confiscation has been directed under section 32.

(3) All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate :

Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing covered by the licence during the period of suspension.

(4) Before making an order sub-section (3) the district magistrate shall by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited.

(5) After considering the cause, if any, shown by the depositor or as the case may be, his legal representative, district magistrate shall pass such order as he thinks fit.

(6) The Government may any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.

Arrest of persons conveying arms, etc., under suspicious circumstances

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Where any person found carrying or conveying any arms or ammunition whether covered by a licence or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are or is being carried by him with intent to use them, or that the same may be used, for any unlawful purpose any magistrate, any police officer or any other public officer or any other public servant or any person employed or working, upon a railway, aircraft, vessel, vehicle or any other means of conveyance, may arrest him without warrant and seize from him such arms or ammunition.

Power to demand production of licence, etc

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(1) Any police officer or any other officer specially empowered in this behalf by the Central Government may demand the production of his licence from any person who is carrying any arms or ammunition.

(2) If the person upon whom a demand is made refuses for fails to produce the licence or to show that he is entitled by virtue of this Act or any other law for the time being in force to carry such arms or ammunition without a licence, the officer concerned may require him to give his name and address and if such officer considers it necessary, seize from t hat person the arms or ammunition which he is carrying.

(3) If that person refuses to give his name and address or if the officer concerned suspects that person of giving a false name or address or of intending to abscond, such officer may arrest him without warrant.

Appeals

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(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:

Provided that no appeal shall lie against any order made by, or under the direction of the Government.

(1) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefore:

Provided that an appeal may be admitted after the expiry of the period prescribed therefore if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.

(3) The period prescribed for an appeal shall be computer in accordance with the provision of the Indian Limitation Act, 1908 (9 of 1908), with respect to the computation of periods of limitation there under .

(4) Every appeal under this section shall be made by a petition in writing ahs shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.

(5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed :

Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.

(6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.

(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.

COMMENTS

When an order for revocation or suspension of the arms licence is ‘issued’, the limitation period for filing an appeal well-in-time is "thirty days from the date of ‘service’ of such an order" [Chhatrapal v. The Collector, Fatephur & Anr; AIR 1989 All. 73f (75)].

Variation, suspension and revocation of licences

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Fees, etc., for licence

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The fees on payment of which, the condition subject to which and the form in which a licence shall be granted or renewed shall be such as may be prescribed:

Provided that different fee, different conditions and different forms may be prescribed for different types of licences:

Provided further that a licence may contain in addition to prescribed conditions such other conditions as may be considered necessary by the licensing authority in any particular case.

Duration and renewal of licence

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(1) A licence under section3 shall, unless revoked earlier, continue in force for a period of three years from the dare on which it is granted:

Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so desires or if the licensing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period.

(2) A licence under any other provision of Chapter II shall, unless revoked earlier, continue in force for such period from the dare on which it is granted as the licensing authority may in each case determine.

(3) Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of section 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof.

Refusal of licences

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(1) Notwithstanding anything in section 13, licensing authority shall refuse to grant -

(a) a licence under section 3, section 4, or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition:

(b) A licence in any other case under Chapter II,-

(i) where such licence is required by a person whom then licensing authority has reason to believe-

(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act, or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

COMMENTS
(i) The Law mandates a refusal to grant licence even if the applicant has duly followed the procedure, where the licensing authority has reason (s) to believe that he is, for any reason, unfit for the licence under the Act. Unfit is used in the context of hardened criminals or those involved in horrendous crimes [Kapildeo Singh v. Distt. Magistrate, Almora & Ors, AIR1987 Pat. 122(125)]

(ii) Under this provision, ‘public peace’ and ‘public safety’ do not imply a stray or an ordinary disturbance of law & order. The licence can be cancelled, suspended or refused on its renewal on the grounds of disturbance or breach of law & order of such a ‘magnitude’ which cannot be ignored as just a stray or an ordinary one. It also depends on the apprehended or actual repercussions [Ganesh Chandra Bhatt v. Distt. Magistrate, Almora & Ors. AIR 1993 All.291].

(iii) As regards the Arms Act, 1959, organic interpretation of its provisions facilitates proper consideration of the right to self defence, present social conditions & correct interpretation of the Constitution so as not to render the statutes/ provisions unconstitutional. In this context, the licence for non-prohibited arm shall be ordinarily allowed with an exception in case of hardened criminals or those involved in horrendous crimes, while the licence for prohibited arms shall not be ordinarily allowed [Ganesh Chandra Bhatt v. Distt. Magistrate, Almora & Ors., 1993 All 291].

(iv) Merely on the ground (s) of implication in petty crime (s) or on the basis of a false F.I.R., the arms licence shall/ cannot be cancelled’/ suspended, for it may be a senile ploy’ to deprive the licence holder of his licensed weapon and disarm him so as to endanger his life. Hence, in such examination of all relevant facts in an essential pre-requisite before cancellation/ suspension of any licence [Ganesh Chandra Bhatt v. Distt. Magistrate, Almora & Ors. AIR 1993 All.291].

Grant of licences

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Power to restrict or prohibit transport of arms

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(1) The Central Government may, by notification if the Official Gazette, -

(a) Direct that no person shall transport over India or any part thereof arms or ammunition of such classes and descriptions as may be specified in the notification unless he holds in this behalf a licence issued a accordance with provisions of this Act, and rules made there under; or

(b) Prohibit such transport altogether.

(2) Arms or ammunition trans-shipped at a seaport or an airport in India are transported within the meaning of this section.

Power to prohibit import or export of arms, etc

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The Central Government may, by notification in the Official Gazette prohibit the bringing into, or the taking out of, India, arms or ammunition of such classes and descriptions as may be specified in the notification.

Licence for import and export of arms , etc.

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(1) No person shall bring into, or take out of India by sea, land or air any arms or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:

Provided that –

(a) a person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having , in his possession any arms or ammunition, may without a licence in this behalf bring into, or take out of, India such arms or ammunition in reasonable quantities for his own private use;

(b) a person being a bona fide tourist belonging to any such country as the Central Government may, by notification in the Official Gazette, specify, who is not prohibited by the laws of that country from having in his possession any arms or ammunition, may, without a licence under this section but in accordance with such conditions as may be prescribed, bring with him into India arms and ammunition in reasonable quantities for use by him for purposes only of sport and for no other purpose.

Explanation-For purpose of clause (b) of this proviso, word "tourist" means a person who not being a citizen of India visits India for a period not exceeding six months with no other object than recreation, sight-seeing, or participation in a representative capacity in meetings convened by the Central Government or in international conferences, associations or other bodies.

(2) Notwithstanding anything contained in the proviso to subsection (1) where the collector of customs or any other officer empowered by the Central Government in this behalf has any doubt as to the applicability of clause (a) or clause (b) of that proviso to any person who claims that such clause is applicable to him or as to the reasonableness of the quantities of arms or ammunition in the possession of any person referred to in such clause, or as to the use to which such arms or ammunition in the possession of such person until he receives the orders of the Central Government in relation thereto.

(3) Arms and ammunition taken from one part of India to another by sea or air or across any intervening territory not forming a part of India, are taken out of, and brought into, India within the meaning of this section.

Prohibition of acquisition or possession by, or of sale or transfer to young persons and certain other persons of fire arms, etc

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(1) Notwithstanding anything in the foregoing provisions of this Act -

(a) No person,-

(i) Who has not completed the age of [twenty-one years], or

(ii) Who has been sentenced on conviction of any offence involving violence or moral turpitude to imprisonment for [ [ Note: Subs. by Act 25 of 1983, s. 5 (w.e.f. 22-6-1983) ] any terms] at any time during a period of five years after the expiration of the sentence, or

(iii) Who has been ordered to execute under Chapter VIII of the [ [ Note: Subs. by Act 25 of 1983, s. 5 (w.e.f. 22-6-1983) ] Code of Criminal Procedure, 1973 (2of 1974)] a bond for keeping the peace or for good behavior, at any time during the term of the bond.

Shall acquire, have in his possession or carry any firearm or ammunition;

(b) No person shall sell or transfer any firearm or ammunition to , or convert, repair, test or prove any firearm or ammunition for, any other person whom he knows, or has reason to believe—

(i) To be prohibited under clause (a) from acquiring, having in his possession or carrying any firearm or ammunition, or

(ii) To be of unsound mind at the time of such sale or transfer, or such conversion, repair, test of proof.

(2) Notwithstanding anything in sub-clause (I) of clause (a) of sub-section (1), a person who has attained the prescribed age – limit may use under prescribed condition such firearms as may be prescribed in the course of his training in the use of such firearms:

Provided that different age –limits may be prescribed in relation to different types of firearms.

Prohibition of sale or transfer of firearms not bearing identification marks

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(1) No person, shall obliterate, remove, alter or forge any name, number or other identification mark stamped or otherwise shown on a firearm.

(2) No person shall sell or transfer any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon in a manner approved by the Central Government.

(3) Whenever any person has in his possession any firearms without such name, number or other identification mark on which such name, number or other identification mark has been obliterated, removed, altered or forged, it shall be presumed unless the contrary is proved, that he has obliterated, removed, altered or forged that name, number or other identification mark ;

Provided that in relation to a person who has in his possession at the commencement of this Act any firearms without such name, number or other identification mark stamped or otherwise shown thereon, the provisions of this sub-section shall not take effect until after the expiration of one year from such commencement.

Prohibition of acquisition or possession, or of manufacture or sale, or prohibited arms or prohibited ammunition

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No person shall –

(a) acquire, have in his possession or carry; or

(b) [ [ Note: Subs. by Act 42 of 1988, s. 4 (w.e.f. 27-5-1988) ] use, manufacture,] sell, transfer, convert, repair, test or prove ; or

(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair test for proof,

any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.

Licence for the shortening of guns or conversion of imitation firearms into firearms

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No person shall shorten the barrel of a firearm or convert an imitation firearm into a firearm unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.

Explanation – In this section, the expression ‘imitation firearms" means anything which has the appearance of being a firearm, whether it is capable of discharging any shot, bullet or other missile or not.

Licence for manufacture, sale, etc., of arms and ammunition

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(1) [ Note: Section 5 renumbered as sub-section (1) thereof and in sub-section (1) as so renumbered the proviso omitted by Act 25 of 1983, s. 4 (w.e.f. 22-6-1983) ] No person shall -

(a) [ [ Note : Subs by Act 42 of 1988, s. 3 (w.e.f. 27-5-1988) ] use, manufacture,] sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion repair, test or proof,

any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.

[ Note: Section 5 renumbered as sub-section (1) thereof and in sub-section (1) as so renumbered the proviso omitted by Act 25 of 1983, s. 4 (w.e.f. 22-6-1983) ]

(2) [ Note: Subs by Act 25 of 1983, s. 4 (w.e.f. 22-6-1983) ] Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition :

Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless –

(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and

(b) a period of not less than forty-five days has expired after the giving of such information.]

Comments

Article 21 of the Indian Constitution does not cover the right of an individual to acquire and possess fire-arms, though the fundamental right of protection of life and personal liberty comes well within its ambit. On the contrary, unlike in U.S.A. [S.C. of U.S.A. in Presser v. Illinois (1884-85), it is not a matter of right here but rather a privilege, subject to the provisions of this Act. However, due to ever-growing mafia-clout and gangsters resulting in an open and insane use of deadly weapons, the fundamental right to possess / bear arms provided by the ‘Second Amendment to the American Constitution’ has come under sharp and bitter-criticism. The bite of the mafia has proved to be worse than the ‘bark’ of the law-makers espousing such provisions for dealing with the security and law and order of the State.

Licence for acquisition and possession of arms of specified description in certain cases

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If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.

Comments

Lead in the ‘raw shape/form’ i.e. when used for industrial or manufacturing purposes, is excluded from the ambit of this provision. But if it takes the shape / form of a finished product like bullet or even empty cartridges, it comes under the definition of ‘ammunition’. However, lead in the form of a finished product like pencil is also excluded for such purposes.

Licence for acquisition and possession of firearms and ammunition

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[ Note: S. 3 renumbered as sub section (1) thereof by Act 25 of 1983, s. 3 (w.e.f. 22-6-1983) ] (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under :

Provided that a person may, without himself holding a licence carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.

(2) [ Note: Ins. by s. 3., ibid., (w.e.f. 22-6-1983) ] Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession to carry, at any time, more than three firearms:

Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such, commencement the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section(1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.

(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.

(4) The provisions of sub-section (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section(2) as they apply in relation to the deposit of any arms or ammunition under sub-section (1) of that section.]

Comments

The power & jurisdiction of the licensing authority to initiate ‘cancellation of licence’ proceedings, has been vested with the A.D.M. (Lakhan Singh v. Commissioner, Jhansi Div., Jhansi & Ors.; AIR 1984 All. 122 (123)]

Definition and interpretation

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Short title, extent and commencement

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(1) This Act may be called the Arms Act, 1959.

(2). It extends to the whole of India.

(3). It shall come into force on such date [ Note: 1st October, 1962, vide Notification No. G.S.R. 992, dated 13-7-1962, see Gazette of India, Pt. II, sec. 3(i) p. 1092. ] as the Central Government may, by notification in the Official Gazette, appoint.

Armed Forces (Special Powers) Act, 1958

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Armed Forces (Special Powers) Act, 1958

[Act No. 28 of 1958]

[11th September, 1958]

STATEMENT Of OBJECTS AND REASONS

An Ordinance entitled the Armed Forces ( Assam and Manipur) Special Powers Ordinance, 1958, was promulgated by the President on the 22nd May, 1958. Section 3 of the Ordinance empowers the Governor of Assam and the Chief Commissioner of Manipur to declare the whole or any part of Assam or the Union Territory of Manipur, as the case may be, to be a disturbed area. On such a declaration being made in the Official Gazette, any Commissioned Officer, Warrant Officer, non-commissioned officer or any other person of equivalent rank in the armed forces may exercise, in the disturbed area, the powers conferred by Sections 4 and 5 of the Ordinance. The Bill seeks to replace the Ordinance.- See Gaz. of India, 11-8-1958, Pt. II-S. 2, Ext. p. 714 (No. 26).

An Act to enable certain special powers to be conferred upon members of the armed forces in disturbed areas in the State of 1[ Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura].

BE it enacted by Parliament in the Ninth Year of the Republic of India as follows:-

1. Subs. for the words “Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura and the Union territory of Arunachal Pradesh” by the State of Arunachal Pradesh Act (69 of 1986), S. 43 (20-2-1987).

2. Definitions

In this Act, unless the context otherwise requires,-

(a) "armed forces" means the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating.

(b) "disturbed area" means an area which is for the time being declared-by notification under 3. to be a disturbed area;

(c) all other words and expressions used herein but not defined, and defined in the Air Force Act, 1950-, or the Army Act, 1950-, shall have the meanings respectively assigned to them in those Acts.

3. Power to declare areas to be disturbed areas.
1[3. Power to declare areas to be disturbed areas.

If, in relation to any State or Union Territory lo which this Act extends, the Governor of that State or the Administrator of that Union Territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area].

1. Subs. by Act 7 of 1972 sec. 4 (w.e.f. 5-4-1972)

4. Special powers of the armed forces.

Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to, be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

5. Arrested persons to be made over to the police.

Any person arrested and taken into custody under this Act shall be made over to the, officer in charge of the nearest police station with the least possible delay, together with a report. of the circumstances occasioning the arrest.

6. Protection to persons acting under Act.

No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act

7. Repeal and Saving
[Repealed by Amending and Repealing Act 1960 (58 of 1960) First Schedule Sec. 2 ( 26-12-1960)]

a

Admiralty Offences (Colonial) Act, 1849

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Admiralty Offences (Colonial) Act, 1849

12 of 1849

1st August, 1849

An Act to provide for the Prosecution and Trial in Her Majesty's Colonies of Offences committed within the Jurisdiction of the Admiralty. [Preamble.- Repealed by 54 and 55 Vict, C. 67.]

2. Repealed.

[Repealed by 54 and 55, Vict., c. 67.]

3. Provision, etc., where death in the colony, or at sea, etc., follows from injuries inflicted on the sea, etc.

1[* * *] Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea or in any haven, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of man slaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in such colony, in the same manner and in all respects as if such offence had been wholly committed in that colony: and if any person in any colony shall be charged with any such offence as afore said in respect of the death of any person who, having been feloniously stricken, poisoned or otherwise hurt, shall have died of such stroke, poisoning, or hurt, up on the sea, or in any haven, river, creek or place where the admiral or admirals have power, authority or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.

1. Introductory words were repealed by 54 and 55 Vict., c. 67.

4. Omitted.

[Omitted as being inapplicable to India.]

5. Interpretation of "colony".

1[* * *] For the purposes of this Act the word "colony" shall mean any island, plantation, colony, dominion, fort or factory of Her Majesty, except any island within the United Kingdom and the Islands of Man, Guernsey, Jersey, Alderney and Sark, and the lands adjacent thereto respectively 2[* * *].

1. Introductory words were repealed by 54 and 55 Vict., c. 67.

2. And includes British India; see 23 and 24 Vict., c. 88, S. I, page 22a, supra.

6. Repealed.

[Repealed by 41 and 42 Vict., c. 79.]

The Anand Marriage Act, 1909

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The Anand Marriage Act, 1909

THE ANAND MARRIAGE ACT, 1909

[Act No. 7 of 1909]

[22nd October 1909]

An Act to remove doubts as to the validity of the marriage ceremony common among the Sikhs called Anand.

Whereas it is expedient to remove any doubts as to the validity of the marriage ceremony common among the Sikhs called Anand;

It is hereby enacted as follows:

2. Validity of Anand Marriage.

All marriages, which may be or may have been duly solemnized according to the Sikh Marriage ceremony called Anand shall be and shall be deemed to have been with effect from the date of the solemnization of each respectively, good and valid in law.

3. Exemption of certain marriages from Act.

Nothing in this Act shall apply to-

(a) Any marriage between persons not professing the Sikh religion, or

(b) Any marriage, which has been judicially declared to be null and void.

4. Saving of marriages solemnized according to other ceremonies.

Nothing in this Act shall affect the validity of any marriage duly solemnized according to any other marriage ceremony customary among the Sikhs.

5. Non-validation of marriages within prohibited degrees.

Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity, which would, according to the customary law of the Sikhs, render a marriage between them illegal.

The Aircraft (Amendment) Act, 2000

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1. Short title and commencement.

(1) This Act may be called the Aircraft (Amendment) Act, 2000

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint

2. Amendment of section 11A of Act 22 of 1934.

In section 11A of the Aircraft Act, 1934, for the words "with fine which may extend to one thousand rupees", the words "with fine which may extend to ten lakh rupees" shall be substituted.

The Agriculturists Loans Act, 1884

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The Agriculturists Loans Act, 1884

[Act No. 12 of 1884] 1

[24th July, 1884.]

1. It has been amended in -- C.P.and Berar by C.P.& Berar Acts 34 of 1947 and 54 of 1949; Coorg by Coorg Act 3 of 1936; Madras by Madras Act 16 of 1935; Orissa by Orissa Act 6 of 1937; and U.P by U.P.Acts 12 of 1922, 12 of 1934 and 12 of 1948.

An Act to amend and provide for the extension of the Northern India Takkavi Act, 1879.

WHEREAS it is expedient to amend the Northern India Takkavi Act, 1879, and provide for its extension to [other [Part A States or Part C States] ]; It is hereby enacted as follows.-- (Preamble.)

1. Subs. by the A.O.1948, for "any part of British India ".

2. Subs. by the A.O.1950, for provinces of India ".

2. Local extent .

(1) This section and section 3 extend to the whole of India except Part B States.

(2) The rest of this Act extends in the first instance only to 1[ Bombay, Uttar Pradesh , Punjab, the Central , Provinces , Assam , Delhi and Ajmer-Merwara.]

(3) But any State Government may, from time to time, by notification in the Official Gazette, extend the rest of this Act to the whole or any part of the territories under its administration.

1. Subs. by the A.O.1948, for original words.

3. Repeal of Act X of 1879, and sections 4 and 5 of Act XV of 1880.

Rep. by the Repealing Act, 1938 (1 of 1938), s.2 and Sch.

4. Power for State Government to make rules.

(1) State Government 1[or, in a State for which there is a Board of Revenue or Financial Commissioner, such Board or Financial Commissioner, Subject to the control of the State Government] may, from time to time, 2make rules as to loans to be made to owners and occupiers of arable land, for the relief of distress, the purchase of seed or cattle, or any other purpose not specified in the Land Improvement Loans Act, 1883, but connected with agricultural objects.

(2) All such rules shall be published in the Official Gazette.

1. Ins. by the Act 4 of 1914, s.2 and Sch.Pt.I.

2. The words "subject to the control of the G.G.in C." rep.ibid.

5. Recovery of loans.

Every loan made in accordance with such rules, all interest (If any) chargeable thereon, and costs (if any) incurred in making or recovering the same, shall, when they become due, be recoverable from the person to whom the loan and made, or from any person who has become surety for the repayment thereof, as if they were arrears of land-revenue or costs incurred in recovering the same due by the person to whom the loan was made or by his surety.

6. Liability of joint-borrowers as among themselves.

When a loan is made under this Act, to the members of a village community or to any other persons such terms that all of them are jointly and severally bound to the Government for the payment of the whole amount payable in respect thereof, and a statement showing the portion of that amount which as among themselves each is bound to contribute is entered upon the order granting the loan and is signed , marked, or sealed by each of them or his agent duly authorized in this behalf and by the officer making the order, that statement shall be conclusive evidence of the portion of that amount which as among themselves each of those persons is bound to contribute.

The Agriculturists Loans Act, 1884

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The Acting Judges Act, 1867

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An Act to authorize the making of acting appointments to certain Judicial Offices 1

WHEREAS the Governor General of India in Council or the Local Government, as the case may be, is empowered by divers enactments to appoint the Judges of certain Courts 2And whereas it has been doubted whether he or it is empowered to appoint persons to act temporarily as such Judges, and it is expedient to remove such doubts; It is hereby enacted as follows:—

1. This Act has been declared, by notification under s.3 (a) of the Scheduled Districts Act, 1874 (14 of 1874), to be in force in the following Scheduled Districts, namely:

The Districts of Hazáribágh, Lohárdaga (now the Ranchi Districts, see Calcutta Gazette, 1899, Pt.I, p.44), and Mánbhum, and Pargana Dhálbhum and the Kolhán in the District of Singbhum—see Gazette of India, 1881, Pt.I, p.504.

This Act has been extended to the new Provinces and Merged States by the Merged States (Laws) Act, 1949 (59 of 1949) and to the States of Manipur, Tripura and Vindhya Pradesh by the Part C States (Laws) Act, 1950 (30 of 1950), s.2.}

2.The words "in the Provinces" were omitted by the A.O.1950.

2. Certain enactments to be construed as if they contained a clause like section 1 of this act.

Every such Act and Regulation shall be construed as if it contained a special clause to the purport or effect of the first section of this Act.

The Absorbed Areas (Laws) Act, 1954

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The Absorbed Areas (Laws) Act, 1954

NO.20 OF 1954

[ 30th April, 1954]

An Act to extend certain laws to the areas which, prior to the commencement of the Constitution, were administered as excluded or partially excluded areas and which, on such commencement ,were absorbed in certain States.

BE it enacted by Parliament as follows:-

2. Definitions.

In this Act, unless the context otherwise requires,-

(a) " Absorbing State" in relation to an absorbed area means a State specified in the heading of the Schedule in which that absorbed area is specified;

(b) "Absorbed area" means an area specified in column 2 of the Schedule.

3. Extension of Laws.

The Acts specified in column I of each of the Schedules and all rules, notifications, orders, schemes, forms and byelaw made thereunder, as in force in the absorbing State specified in the heading of that Schedule, are hereby extended to, and shall be in force in the absorbed areas specified in column 2 of that Schedule.

SCHEDULE I. BIHAR

THE SCHEDULES

(See sections 2 and 3)

SCHEDULE I

BIHAR

Name of the Act

The absorbed areas

1

2

The Requisitioned Land (Apportionment of Compensation) Act, 1949 (L1of 1949).

1. Hazaribagh and Manbhum Districts.

2. Sadar Sub-Division of the Palamau District.

3. Dhalbhum Sub-Division of the Singhbhum District

4. Godda and Deoghar Sub-Divisions of the Santal Parganas District.

SCHEDULE II. BOMBAY

SCHEDULE II

BOMBAY

Name of the Act

The absorbed areas

1

2

1. The Indian Extradition Act, 1903 (XV of 1903).

1. Shahda, Nandurbar and Taloda Taluka of the West Khandesh District.

2. The Whipping Act, 1909 (IV of 1909).

2. The Dohad Taluka and the Jhalod Mahal of the Panch Mahal District.

3. The Police (Incitement of Disaffection) Act, 1922 (XXII of 1922).

4. The Cotton Transport Act, 1923 (III of 1923).

5. The Port Haj Committees Act, 1932 (XX of 1932).

6. The Seaward Artillery Practice Act, 1949 (VIII of 1949).

SCHEDULE III. ORISSA

SCHEDULE III

ORISSA

Name of the Act

The absorbed areas

1

2

1. The Metal Tokens Act, 1889 (I of 1889).

Angul.

2. The white Phosphorus Matches Prohibition Act, 1913 (V of 1913).

3. The Indian Emigration Act, 1922 (VII of 1922).

4. The Coal Grading Board Act, 1925 (XXXI of 1925).

5. The Coal mines Provident Fund and Bonus Schemes Act, 1948 (XLVI of 1948).

SCHEDULE IV. UTTAR PRADESH

SCHEDULE IV

UTTAR PRADESH

Name of the Act

The absorbed areas

1

2

1.The Indian Power Alcohol Act, 1948 (XXII of 1948).

Jaunsar Bawar Parganas in Dehra Dun District and the areas of south of Kaimpur range in the Mirzapur District.

2.The Employees' State Insurance Act, 1948 (XXXIV of 1948).

SCHEDULE V. WEST BENGAL

SCHEDULE V

WEST BENGAL

Name of the Act

The absorbed areas

1

2

1.The Requisitioned Land (Apportionment of Compensation) Act, 1949 (LI of 1949).

Darjeeling District

2.The West Bengal Raw Jute Futures Act, 1948 (West Bengal Act No.XXV of 1948).

Authoritative Texts (Central Laws) Act, 1973

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Authoritative Texts (Central Laws) Act, 1973

[Act No. 50 of 1973]

STATEMENT OF OBJECTS AND REASONS

Authorized translations of the various Central laws in State official languages would be extremely useful to the general public and also for official purpose; of the States, which have adopted languages other than Hindi and English as official languages of their States. Therefore when the Official Language (Legislative) Commission was first constituted w 1961, it was also entrusted with the function of arranging for translation of Central Acts, Ordinances and Regular Ions into various official languages of the States. According to the existing arrangements, the translations in a State official language is prepared by or under the auspices of the Government of the State concerned and finalised by the official Language (Legislative) Commission in consultation with the translating authority. In the absence of any legal provision for their authentication and publication, such translations can have no legal status and their utility would be limited. It is, therefore, necessary to make provision for the publication of authorized translations of Central Acts, Ordinances as also of orders, rules, regulations and bye-laws issued under the Constitution or under any Central Act, in State official languages. Hence this Bill.-S.O.R.-Gaz. of Ind., 22-11-1972, Pt. II, S. 2, Ext., P. 1153.

Act 18 of 1988. - Under Section 2 of the Authorized Translations (Central Laws) Act 1973, a translation in any language, other than Hindi, specified in the Eighth Schedule to the Constitution and published under the authority of the President of any Central Act or of any Ordinance promulgated by the President or of any order, rule. Regulation or bye-law issued under the Constitution or under any Central Act shall be deemed to be the authorized translation thereof in such language.

2. Section 5(1) of the Official Languages Act. 1963 provides for authoritative texts in Hindi of Central Act, etc. At present, there is no provision in the Authorized Translations (Central Laws) Act, 1973 for providing authoritative texts of Central Act, etc., in the languages, other than Hindi, specified in the Eighth Schedule to the Constitution. As. 'much, these cannot be quoted in Courts of law. There has also been a general demand for authoritative texts of Central Acts, etc., in the languages, other than Hindi, specified in the Eighth Schedule to the Constitution. The proposed amendment is being brought forward lo fulfill this demand. This will enable the authoritative texts of Central Acts, etc., in the languages, other than Hindi, specified in the Eighth Schedule to the Constitution to be quoted in the Courts of law and facilitate the use of these languages in Courts of law iodated in Stales where such languages are the official languages.-S.O.R.-Gaz. of Ind., 31-8-1987, Pt. II. S. 2, Ext. P. 58 (No. 45).

An Act to provide for [authoritative texts] of Central laws in certain languages.

Be it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows:-

2. Authoritative texts of Central laws in certain languages.

A translation in any language(other than Hindi) specified in the Eighth Schedule to the Constitution, published under the authority of the President in the Official Gazette,-

(a) of any Central Act or of any Ordinance promulgated by the President, or

(b) of any order, rule, regulation or bye-law issued under the Constitution or under any Central Act, shall be deemed lo be the 1[authoritative texts] thereof in such language

1. Substituted for the words "authorized translations" by the Authorized Translations (central Laws) Amendment Act (18 of 1988), S. 4 ( 31-3-1988 ).

3. Power to make rules.

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes this Act.

(2) Every rule made under this section shall be lad, as soon as may be after it is made. before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the-session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made. the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the algidity of anything previously under that rule.

Assam State Legislature (Delegation Of Powers) Act, 1981

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Assam State Legislature (Delegation Of Powers) Act, 1981

38 of 1980

11th July, 1980

An Act to confer on the President the power of the Legislature of the State of Assam to make laws Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows :-

2. Definition

In this Act, "Proclamation" means the Proclamation issued on the 12th day of December, 1979, under Article 356 of the Constitution-, by the President, and published with the notification of the Government of India in the Ministry of Home Affairs, No. G.S.R. 688 (E) of the said date.

3. Conferment on the President of the power of the State Legislature to make laws
(1) The power of the Legislature of the State of Assam to make laws, which has been declared by the Proclamation to be exercisable by or under the authority of Parliament, is hereby conferred on the President.

(2) In the exercise of the said power, the President may, from time to time, whether Parliament is or is not in session, enact, as a President's Act, a Bill containing such provisions as he considers necessary :

Provided that before, enacting any such Act, the President shall, whenever he considers it, practicable to do so, consult a Committee constituted for the purpose, consisting of thirty members of the House of the People nominated by the Speaker and fifteen members of the Council of States nominated by the Chairman.

(3) Every Act enacted by the President under sub-section (2) shall, as soon as may be after enactment, be laid before each House of Parliament.

(4) Either House of Parliament may, by resolution passed within thirty days from the date on which the Act has been laid before it under sub-section (3), which period may be comprised in one session or in two successive sessions, directs any modifications to be made in the Act and if the modifications are agreed to by the other House of Parliament during the session in which the Act has been so laid before it or the session succeeding, such modifications shall be given effect to by the President by enacting an amending Act under sub-section (2):

Provided that nothing in this sub-section shall affect the validity of the Act or of any action taken there under before it is so amended.

Assam State Legislature (Delegation Of Powers) Act, 1980

2009-06-07T11:07:00.000-07:00

Assam State Legislature (Delegation Of Powers) Act, 1980

38 of 1980

11th July, 1980

An Act to confer on the President the power of the Legislature of the State of Assam to make laws Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows :-

2. Definition

In this Act, "Proclamation" means the Proclamation issued on the 12th day of December, 1979, under Article 356 of the Constitution-, by the President, and published with the notification of the Government of India in the Ministry of Home Affairs, No. G.S.R. 688 (E) of the said date.

3. Conferment on the President of the power of the State Legislature to make laws
(1) The power of the Legislature of the State of Assam to make laws, which has been declared by the Proclamation to be exercisable by or under the authority of Parliament, is hereby conferred on the President.

(2) In the exercise of the said power, the President may, from time to time, whether Parliament is or is not in session, enact, as a President's Act, a Bill containing such provisions as he considers necessary :

Provided that before, enacting any such Act, the President shall, whenever he considers it, practicable to do so, consult a Committee constituted for the purpose, consisting of thirty members of the House of the People nominated by the Speaker and fifteen members of the Council of States nominated by the Chairman.

(3) Every Act enacted by the President under sub-section (2) shall, as soon as may be after enactment, be laid before each House of Parliament.

(4) Either House of Parliament may, by resolution passed within thirty days from the date on which the Act has been laid before it under sub-section (3), which period may be comprised in one session or in two successive sessions, directs any modifications to be made in the Act and if the modifications are agreed to by the other House of Parliament during the session in which the Act has been so laid before it or the session succeeding, such modifications shall be given effect to by the President by enacting an amending Act under sub-section (2):

Provided that nothing in this sub-section shall affect the validity of the Act or of any action taken there under before it is so amended.

Assam Alienation Of Land (Regulation) Act, 1980

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Assam (Alteration Of Boundaries) Act, 1951

47 of 1951

1st September,1951

STATEMENT OF OBJECTS AND REASONS "By Article 4 of the Indo-Bhutan Treaty of Friendship concluded on the 8th August, 1949, and subsequently ratified, the Government of India undertook to cede to the Government of Bhutan a strip of territory measuring 32.81 square mites known as Dowager on the border of Kamrup district in the State of Assam. The territory had not been surveyed or demarcated and it could not, therefore, be handed over to Bhutan immediately. Under the provisions of Article 3 of the Constitution which came into force subsequently, the implementation of this undertaking requires an Act of Parliament. Since it involves diminishing the area and altering the boundaries of Assam, the view. of the Legislature of that State with respect to the proposal to introduce a Bill for this purpose and the provisions thereof have been ascertained in accordance with the Proviso to Article 3 of the Constitution. At its meeting held on the 27th March, 1951 the Legislative Assembly of Assam adopted the following resolution-

"The House recommends to the President of the Indian Union the transfer of about 32 square miles of territory in the Dowager hill block to the Bhutan Government as in Schedule below in pursuance of the Treaty of Darjeeling of 8th August, 1949". This Bill is designed to effect the transfer in accordance with the Constitution"-Gaz. Ind. 1951,Pt.ll-Sec.2,Page 35S.An Act to alter the boundaries of the State of Assam consequent on the cession of a strip of territory comprised in that State to the Government of Bhutan. Be it enacted by Parliament as follows:-

2. Alteration of the Boundaries of Assam .

On and from the commencement of this Act, the territory of the State of Assam shall cease to comprise the strip of territory specified in the Schedule, which shall be ceded to the Government of Bhutan, and the boundaries of the State of Assam shall be deemed to have been altered accordingly.

3. Amendment of the First Schedule to the Constitution.

In the first paragraph of Part A of the First Schedule to the Constitution, under the heading "TERRITORIES OF STATES", after the words "Assam Tribal Areas," the following words shall be inserted, namely:-"but shall not include the territories specified in the Schedule tithe Assam (Alteration of Boundaries) Act, 1951-"

SCHEDULE. See section 2

SCHEDULE 1

THE SCHEDULE

(See section 2)

The strip of territory measuring 32.81 square miles lying to the south of Bhutan within26° 45° and 27° North Latitude and 91° 15° and 91° 45° East Longitude, demarcated on the west, north and east by boundary pillars Nos. 90° 91, ° 92°, 93° and 94° erected in 1930-31, and on the south by boundary pillars Nos. 90, 91, 92, 93 and 94 erected in 1950.

Assam Alienation Of Land (Regulation) Act, 1980

2009-06-07T11:06:00.000-07:00

Assam (Alteration Of Boundaries) Act, 1951

2009-06-07T11:05:00.000-07:00

Arbitration (Protocol And Convention) Act, 1937

2009-06-07T11:02:00.000-07:00

Arbitration (International Investment Disputes) Act, 1966

2009-06-07T10:49:00.000-07:00

Enforcement of foreign awards

2009-05-10T09:31:00.000-07:00

Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of the Court.

Conditions for enforcement of foreign awards

2009-05-10T09:30:00.000-07:00

(1) In order that a foreign award may be enforceable under this Chapter, it shall be necessary that—

(a) the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;

(b) the subject-matter of the award is capable of settlement by arbitration under the law of India;

(c) the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;

(d) the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;

(e) the enforcement of the award is not contrary to the public policy or the law of India.

Explanation.—Without prejudice to the generality of clause (e), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.

(2) Even if the conditions laid down in sub-section (1) are fulfilled, enforcement of the award shall be refused if the Court is satisfied that—

(a) the award has been annulled in the country in which it was made;

(b) the party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented;

(c) the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the Court may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the Court may decide.

(3) If the party against whom the award has been made proves that under the law governing the arbitration procedure there is a ground, other than the grounds referred to in clauses (a) and (c) of sub-section (1) and clauses (b) and (c) of sub-section (2) entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.

Evidence

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(1) The party applying for the enforcement of a foreign award shall, at the time of application, produce before the Court—

(a) the original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made;

(b) evidence proving that the award has become final; and

(c) such evidence as may be necessary to prove that the conditions mentioned in clauses (a) and (c) of sub-section (1) of section 57 are satisfied.

(2) Where any document requiring to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

Explanation.—In this section and all the following sections of this Chapter, “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

Foreign awards when binding

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Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.

Power of judicial authority to refer parties to arbitration

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Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, on being seized of a dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement, whether referring to present or future differences, which is valid under that section and capable of being carried into effect, shall refer the parties on the application of either of them or any person claiming through or under him to the decision of the arbitrators and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.

Interpretation

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In this Chapter “foreign award” means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924,—

(a) in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies, and

(b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid, and

(c) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by like notification, declare to be territories to which the said Convention applies,

and for the purposes of this Chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made.

Chapter II not to apply

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Chapter II of this Part shall not apply in relation to foreign awards to which this Chapter applies.

Saving

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Nothing in this Chapter shall prejudice any rights which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted.

Appealable orders

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(1) An appeal shall lie from the order refusing to—

(a) refer the parties to arbitration under section 45;

(b) enforce a foreign award under section 48,

to the court authorised by law to hear appeals from such order.

(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

Enforcement of foreign awards

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Where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court.

Comments

Court is required to record its satisfaction that a foreign award is enforceable

Before proceeding to execute a foreign award as a decree of a court, the court is required to record its satisfaction that such a foreign award is enforceable. This, however, does not mean that court cannot pass any interim order in order to protect interest of person applying for enforcement and execution of a foreign award; Centrotrade Minerals & Metals Inc. v. Hindustan Copper Ltd., AIR 2004 Cal 142.

Conditions for enforcement of foreign awards

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(1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that—

(a) the parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

(2) Enforcement of an arbitral award may also be refused if the Court finds that—

(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or

(b) the enforcement of the award would be contrary to the public policy of India.

Explanation.—Without prejudice to the generality of clause (b) of this section, it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.

(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

Comments

Awarded has been set aside

An interim award was made at London by an arbitral tribunal constituted by the international Chamber of Commerce. The agreement was made at New Delhi and agreement was governed by the law in force in India. Court held that the law expressly choosen by the parties in respect of all matters arising under their contract, which must necessarily include the agreement contained in the arbitration clause, being Indian law and the exclusive jurisdiction of the courts in Delhi having been expressly recognised by the parties to the contract in all matters arising under it, and the contract being most intimately associated with India, the proper law of arbitration and the competent courts are both exclusively Indian, while matters of procedure connected with the conduct of arbitration are left to be regulated by the contractually chosen rules of the ICC to the extent that such rules are not in conflict with the public policy and the mandatory requirements of the proper law and of the place of arbitration; National Thermal Power Corpn. v. Singer Co., AIR 1993 SC 998.

Enforcement of foreign award

For enforcement of a foreign award, there is no need to take separate proceedings such as one for deciding enforceability of award to make rule of court or decree and other to take up execution thereafter; Fuerst Day Lawson Ltd. v. Jindal Export Ltd., AIR 2001 SC 2293.

Invalidity of the arbitration agreement

A foreign award will not be enforced if it is proved by the party against whom it is sought to be enforced that the parties to the agreement were, under the law applicable to them, under some incapacity, or, the agreement was not valid under the law to which the parties have subjected it, or, in the absence of any indication thereon, under the law of the place of arbitrations; or there was no due compliance with the rules of fair hearing; or the award exceeded the scope of the submission to arbitration; or the composition of the arbitral authority or its procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the place of arbitration; or the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority or the country in which, or under the law of which, that award was made. The award will not be enforced by a court in India if it is satisfied that the subject matter of the award is not capable of settlement by arbitration under Indian law or the enforcement of the award is contrary to the public; National Thermal Power Corpn. v. Singer Co., AIR 1993 SC 998.

Conditions for enforcement of foreign awards

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Evidence

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(1) The party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court—

(a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made;

(b) the original agreement for arbitration or a duly certified copy thereof; and

(c) such evidence as may be necessary to prove that the award is a foreign award.

(2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.

Explanation.—In this section and all the following sections of this Chapter, “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

Comments

Production of documents at the time of application

An application for enforcement of award accompanied by Xerox copy of original award certified to be true copy by International Chamber of Commerce was filed and subsequently before delivery of judgment the said copy was duly authenticated as required under law, it was held that it would not be said that the application was made without the original award or the copy of the award; Renusagar Power Co. Ltd. v. General Electric Co., AIR 1985 SC 1156.

When foreign award binding

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Power of judicial authority to refer parties to arbitration

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Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

Comments

Null and void agreement

In the absence of any serious challenge to the commercial contract or to the arbitration agreement, it has to be found that the agreement was valid, operative and capable of being performed and that there are disputes between the parties with regard to the matters agreed to be referred to arbitration; State of Orissa v. Klockner & Co., AIR 1996 SC 2140.

Referral is mandatory

A judicial authority does not have discretion for refusing to refer the parties to arbitration. Section 45 of the 1996 Act uses the mandatory expression ‘shall’ and makes it obligatory upon the judicial authority to refer the parties to arbitration, if conditions specified therein are fulfilled. Stay of suit is mandatory if the conditions specified in section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961 are fulfilled; State of Orissa v. Klockner & Co., AIR 1996 SC 2140.

Definition

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In this Chapter, unless the context otherwise requires, “foreign award” means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960—

(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and

(b) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.

Limitations

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(1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in Court.

(2) For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred in section 21.

(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.

Jurisdiction

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Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.

Comments

Execution proceedings

Application for execution proceedings made at place D, residing place of judgment debtor, while award was passed at place I. Held that decree cannot be executed unless and until court at place I transfer decree to court at place D; Computer Sciences Corporation India Pvt. Ltd. v. Harishchandra Lodwal, AIR 2006 MP 34.

Jurisdiction of Court

Section 42 provides that notwithstanding anything contained elsewhere in this part or in any other law for the time being in force, where with respect to an arbitrator agreement any application under this part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court. As already stated in the present case that the petitioner-company is a consortium partner with S Co. and L&T Ltd. and the three companies are equally liable and the contracts were executed by S as the leader of the consortium. The Bank guarantees which are subject matter before the High Court of Delhi. The leader of consortium S had already approached the High Court of Delhi as such according to section 42, all subsequent applications arising out of the arbitration agreement and arbitral proceedings shall have to be made in the High Court of Delhi and no other Court had jurisdiction to entertain such applications. Thus, the Court of the District Judge; Jaipur City had no jurisdictions to entertain the application submitted under section 11(6) read with section 8; Sirojexport Co. Ltd. v. Indian Oil Corpn. Ltd., AIR 1997 Raj 120.

Arbitration agreement not to be discharged by death of party thereto

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(1) An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal representative of the deceased.

(2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.

(3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.

Provisions in case of insolvency

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(1) Where it is provided by a term in a contract to which an insolvent is a party that any dispute arising thereout or in connection therewith shall be submitted to arbitration, the said term shall, if the receiver adopts the contract, be enforceable by or against him so far as it relates to any such dispute.

(2) Where a person who has been adjudged an insolvent had, before the commencement of the insolvency proceedings, become a party to an arbitration agreement, and any matter to which the agreement applies is required to be determined in connection with, or for the purposes of, the insolvency proceedings, then, if the case is one to which sub-section (1) does not apply, any other party or the receiver may apply to the judicial authority having jurisdiction in the insolvency proceedings for an order directing that the matter in question shall be submitted to arbitration in accordance with the arbitration agreement, and the judicial authority may, if it is of opinion that, having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order accordingly.

(3) In this section the expression “receiver” includes an Official Assignee.

Lien on arbitral award and deposits as to costs

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(1) Subject to the provisions of sub-section (2) and to any provision to the contrary in the arbitration agreement, the arbitral tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration.

(2) If in any case an arbitral tribunal refuses to deliver its award except on payment of the costs demanded by it, the Court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment into Court by the applicant of the costs demanded, and shall, after such inquiry, if any, as it thinks fit, further order that out of the money so paid into Court there shall be paid to the arbitral tribunal by way of costs such sum as the Court may consider reasonable and that the balance of the money, if any, shall be refunded to the applicant.

(3) An application under sub-section (2) may be made by any party unless the fees demanded have been fixed by written agreement between him and the arbitral tribunal, and the arbitral tribunal shall be entitled to appear and be heard on any such application.

(4) The Court may make such orders as it thinks fit respecting the costs of the arbitration where any question arises respecting such costs and the arbitral award contains no sufficient provision concerning them.

Deposits

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(1) The arbitral tribunal may fix the amount of the deposit or supplementary deposit, as the case may be, as an advance for the costs referred to in sub-section (8) of section 31, which it expects will be incurred in respect of the claim submitted to it:

Provided that where, apart from the claim, a counter-claim has been submitted to the arbitral tribunal, it may fix separate amount of deposit for the claim and counter-claim.

(2) The deposit referred to in sub-section (1) shall be payable in equal shares by the parties:

Provided that where one party fails to pay his share of the deposit, the other party may pay that share:

Provided further that where the other party also does not pay the aforesaid share in respect of the claim or the counter-claim, the arbitral tribunal may suspend or terminate the arbitral proceedings in respect of such claim or counter-claim, as the case may be.

(3) Upon termination of the arbitral proceedings, the arbitral tribunal shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the party or parties, as the case may be.

Enforcement

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Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.

Appealable orders

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(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—

(a) granting or refusing to grant any measure under section 9;

(b) setting aside or refusing to set aside an arbitral award under
section 34.

(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.—

(a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.

Comments

Determination of forum of appellate court

Forum of appellate court must be determined with reference to definition of court in section 2(1)(e) of the Act. If a High Court does not exercise the original Civil Jurisdiction, it would not be a ‘Court’ within the meaning of the said provision; Pandey & Co. Builders Pvt. Ltd. v. State of Bihar, AIR 2007 SC 465.

Maintainability

A second appeal against the order of arbitral tribunal is not maintainable under this section; Cref Finance Ltd. v. Puri Construction Ltd., AIR 2001 Del 414.

Finality of arbitral awards

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Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.

Application for setting aside arbitral award

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(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if—

(a) the party making the application furnishes proof that—

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) the Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation.—Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

Comments

Arbitration Court cannot interfere on the ground of award being erroneous

The arbitration court cannot interfere with the award on the ground that the award is erroneous if the award is otherwise proper. It is not open to the arbitration court to re-appreciate reasonableness of reasons in the arbitral award; Union of India v. Pam Developments P. Ltd., AIR 2004 NOC 353 (Cal).

Award based on account of overlooking contents

The award made by the arbitrator was partially vitiated on account of overlooking the contents of the document brought to his notice and therefore, to that extent the award should have been modified by the High Court. Virtually allotment of land was not in recognition of any statutory entitlement but was only by way of compassion; State of Karnataka v. Siddaiah, AIR 2001 SC 397.

Court must not look to the reasonableness of reasons

Where an arbitrator passed a non-speaking award granting certain lumpsum amount and award did not contain any decision or arbitrability of the claims, such award is liable to be set aside; Tamil Nadu Electricity Board v. Bridge Tunnel Constructions, AIR 1997 SC 1376.

Interference with arbitral award

While considering legality and validity of award, High Court cannot substitute its own findings as if sitting in appeal over award. High Court has no jurisdiction to interfere with award; Ram Prasad Sharma v. Jharkhand State Housing Board, AIR 2006 NOC 258 (Jhar).

Limitations

It is axiomatic that the arbitrator being a creative of the agreement must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount, which is ruled out or prohibited by the terms of the agreement. In the present case, the agreement between the parties clearly says that in measuring the built up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account; New India Civil Erectors (P) Ltd. v. Oil and Natural Gas Corporation, AIR 1997 SC 980.

Right to get an award set aside is statutory

The right to file an application under section 34 to set aside an award is statutory and the same is unconditional and unqualified; The Supdtg. Engineer (Highway & Rural Works), Chennai v. D.G. Deivasigamani, AIR 2005 Mad 59.

Application for setting aside arbitral award

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Correction and interpretation of award; additional award

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(1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties—

(a) a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;

(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.

(3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award.

(4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award.

(5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.

(6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section (5).

(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.

Comments

Scope—Enlargement of

It is seen that by express agreement between the parties, arbitrability of the claim for refund of the hire charges was referred to arbitration and T came to be appointed as arbitrator and entered upon that reference. But when claim was made, he enlarged the dispute unilaterally without there being any agreement by the appellant. Infact they objected to the enlargement of the scope of the arbitration. Since arbitrator went on adjudicating the disputes, they were left with no option but to participate in the proceedings as the claims were pressed for and parties submitted to the jurisdiction of the arbitrator. Therefore, it did not amount to acquiescence. The arbitrator went out of their way to declare that whatever amount in addition was due from respondent No. 1 upon the bahikhatta account was remitted having regard to his labour and poverty and the whole unspecified amount found due against respondent No. 2 was remitted in full in view of his labour and poverty. It was contended that the award was decided outside the authority of the arbitrators. It was held that the arbitrators had clearly misdirected themselves and had exceeded the scope of their authority and the award was, therefore, set aside; Union of India v. G.S. Atwal & Co., AIR 1996 SC 2965.

Termination of proceedings.

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(1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).

(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where—

(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,

(b) the parties agree on the termination of the proceedings, or

(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.

Form and contents of arbitral award

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(1) An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal.

(2) For the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated.

(3) The arbitral award shall state the reasons upon which it is based, unless—

(a) the parties have agreed that no reasons are to be given, or

(b) the award is an arbitral award on agreed terms under section 30.

(4) The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place.

(5) After the arbitral award is made, a signed copy shall be delivered to each party.

(6) The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award.

(7) (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment.

(8) Unless otherwise agreed by the parties,—

(a) the costs of an arbitration shall be fixed by the arbitral tribunal;

(b) the arbitral tribunal shall specify—

(i) the party entitled to costs,

(ii) the party who shall pay the costs,

(iii) the amount of costs or method of determining that amount, and

(iv) the manner in which the costs shall be paid.

Explanation.—For the purpose of clause (a), “costs” means reasonable costs relating to—

(i) the fees and expenses of the arbitrators and witnesses,

(ii) legal fees and expenses,

(iii) any administration fees of the institution supervising the arbitration, and

(iv) any other expenses incurred in connection with the arbitral proceedings and the arbitral award.

Comments

Power to award interest

Arbitrator has power to award interest at all four stages. It was held that the direction to pay interest from date of award cannot be faulted under section 31(7); T.P. George v. State of Kerala, AIR 2001 SC 816.

Settlement

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(1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

(2) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitral award.

(4) An arbitral award on agreed terms shall have the same status and effect as any other arbitral award on the substance of the dispute.

Comments

Settlement

When the arbitrator, having been invested with the jurisdiction to decide the arbitrability of certain claims has committed error of jurisdiction in not considering the arbitrability of the claims and passed a non-speaking award granting certain lump sum amount, it is difficult to give acceptance to the award made by the umpire; Tamil Nadu Electricity Board v. Bridge Tunnel Constructions, AIR 1997 SC 1376.

Decision making by panel of arbitrators

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(1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members.

(2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitral tribunal, questions of procedure may be decided by the presiding arbitrator.

Comments

Power to award interest

Where the arbitrator has awarded interest from the date of the award till the date of payment, disallow interest from the date of the decree or determine a different rate at which the interest is to be paid or confirm the grant of interest as awarded in the award. In the instant case, the arbitrator is entitled to grant pre-reference, pendente lite and future interest, however, the claimant did not claim any pre-reference interest in proceedings before the arbitrator in the present facts and circumstances could not have granted interest from the date the arbitrator entered upon the reference by sending notice to the claimant and respondent on 26-4-1991 to the date of award at the rate of 15% p.a. on the amounts awarded; State of Orissa v. B.N. Agarwal, AIR 1997 SC 925.

Rules applicable to substance of dispute.

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(1) Where the place of arbitration is situate in India,—

(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;

(b) in international commercial arbitration,—

(i) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute;

(ii) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules;

(iii) failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.

(2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.

(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.

Court assistance in taking evidence

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(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.

(2) The application shall specify—

(a) the names and addresses of the parties and the arbitrators;

(b) the general nature of the claim and the relief sought;

(c) the evidence to be obtained, in particular,—

(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required;

(ii) the description of any document to be produced or property to be inspected.

(3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.

(4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it.

(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court.

(6) In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents.

Expert appointment by arbitral tribunal

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(1) Unless otherwise agreed by the parties, the arbitral tribunal may—

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.

Default of a party

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Unless otherwise agreed by the parties, where, without showing sufficient cause,—

(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings;

(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant;

(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.

Hearings and written proceedings

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(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials:

Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.

(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property.

(3) All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.

Statement of claim and defence.

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(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.

(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

Language

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(1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings.

(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings.

(3) The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal.

(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

Commencement of arbitral proceedings.

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Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

Comments

Object

Section 21 of the Act lays down that unless and otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by respondent; Y. Parthsarthy v. G.M., Railway Electrification, Allahabad, 1997 (2) Arb LR 347.

Place of arbitration.

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(1) The parties are free to agree on the place of arbitration.

(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

Comments

Ascertaining venue of arbitration

A conjoint reading of section 2(6) and section 20 leads to the conclusion that in the event, parties do not agree with regard to the place of arbitration, then they had the right to authorise any person including an institution for deciding the venue of the arbitration; Sanshin Chemicals Industry v. Oriental Carbons and Chemicals Ltd., AIR 2001 SC 1219.

Determination of rules of procedure

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(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Equal treatment of parties

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The parties shall be treated with equality and each party shall be given a full opportunity to present his case.

Interim measures ordered by arbitral tribunal.

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(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute.

(2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1).

Interim measures ordered by arbitral tribunal.

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Competence of arbitral tribunal to rule on its jurisdiction

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(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,—

(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified.

(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.

(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.

Comments

Jurisdiction of Civil Court

During pendency of arbitration, civil court has no jurisdiction to entertain petition and decide nature of objections raised therein. Questions can be raised before and decided by arbitrator; State of Jharkhand v. Himachal Construction Co. Pvt. Ltd., AIR 2006 NOC 249 (Jhar).

Power of the arbitrator to decide jurisdiction

The Arbitrator himself in exercise of power conferred on him by or under section 16 can decide the question whether or not the arbitration clause in question was scored out at the time of agreement between the parties and as such, whether or not he has jurisdiction to decide the matter or adjudicate the dispute; State of Orissa v. Surendranath Kanungo, AIR 2004 Ori 153.

Termination of mandate and substitution of arbitrator

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(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate—

(a) where he withdraws from office for any reason; or

(b) by or pursuant to agreement of the parties.

(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

Failure or impossibility to act

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(1) The mandate of an arbitrator shall terminate if—

(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and

(b) he withdraws from his office or the parties agree to the termination of his mandate.

(2) If a controversy remains concerning any of the grounds referred to inclause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.

(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.

Challenge procedure

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(1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.

(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.

(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.

(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.

(6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.

Grounds for challenge

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(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.

(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.

(3) An arbitrator may be challenged only if—

(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or

(b) he does not possess the qualifications agreed to by the parties.

(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

Appointment of arbitrators.

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(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

(4) If the appointment procedure in sub-section (3) applies and—

(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or

(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,

the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

(6) Where, under an appointment procedure agreed upon by the parties,—

(a) a party fails to act as required under that procedure; or

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,

a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.

(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to—

(a) any qualifications required of the arbitrator by the agreement of the parties; and

(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

(10) The Chief Justice may make such scheme1 as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him.

(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.

(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ‘‘Chief Justice’’ in those sub-sections shall be construed as a reference to the ‘‘Chief Justice of India’’.

(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.

Comments

‘A party’—Meaning of

As per the Webiters Dictionary ‘A party’ in context of legal affairs is one of the litigants in legal proceeding, the plaintiff or defendant or a signatory to a legal instrument.

The Chambers Dictionary defines ‘a party’ as each of the individuals or groups concerned in a contract agreement, law suit, etc.

As per Oxford Dictionary the word ‘parties’ refers to a person or persons forming one side in an agreement or dispute.

Whartons Law Lexicon, 14th edition defines the word ‘parties’ as persons jointly concerned in any deed or act; litigants.

’Agreement’—Meaning of

As per Oxford Dictionary the word ‘agreement’ means an arrangement between the parties as to a course of action.

As per Wharton’s Law Lexicon ’agreement’ means a consensus of two or more minds in anything done or to be done.

Chambers Dictionary describes the word ‘agreement’ as a contract or term; a joint decision made after discussion.

Discretion for appointment of arbitrator

Exercise of discretion for appointment of same arbitrator even after forfeiture of right is improper; Suri Constructions v. State of Rajasthan, AIR 2006 Raj 53.

Scope

It is well settled that where an arbitrator is named in the arbitration agreement, the provisions of section 11 of the Act are not attracted and the court will not have jurisdiction to try and decide the petition filed by party for appointment of another arbitrator; Kamla Solvent v. Manipal Finance Corpn. Ltd., AIR 2001 Mad 440.

Under section 11, there is no provision fixing any time limit except under sub-section (5) which provides the time limit of 30 days from the receipt of the request from the party for appointment of an arbitrator. Under sub-section (6) no such time limit have been fixed. It is required under the procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment; Ansal Properties & Industries Ltd. v. Himachal Pradesh State Electricity Board, AIR 1997 Arb LR 11.

Existence of arbitration clause and validity of reference

The existence of the arbitration clause and the validity of reference shall only be decided by the Arbitrator. It is also within the domain of the Arbitrator to decide whether the claim of the petitioner has already been settled on full satisfaction; Navratandas & Co. (P) Ltd. v. Tata Iron & Steel Co., AIR 2006 Jhar 7.

—————

1. See Appointment of Arbitrators by the Chief Justice of India Scheme, 1996, published in the Gazette of India, Extra., Pt. III, Sec. 1, dated 16th May, 1996.

Number of arbitrators.

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Interim measures, etc. by Court

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A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court—

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the court to be just and convenient,

and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

Comments

Interim protection

A party or a person is entitled to interim protection if action of the other party is either in breach of the terms of the agreement or militates against equity, fair play or natural justice, otherwise not; Baby Arya v. Delhi Vidyut Board, AIR 2002 Del 50.

Pendency of any arbitral proceedings is not a pre-condition for an exercise of power by the court

Pendency of any arbitral proceedings is not a pre-condition for exercise of power by court. The court may grant interim relief before or during arbitral proceedings or at anytime after making of the arbitral award but before it is enforced; Globe Cogeneration Power Ltd. v. Sri Hiranyakeshi Sahkari Sakkere Karkhane Niyamit, AIR 2005 Kant 94.

Scope

Section 9 of the Arbitration and Conciliation Act, 1996, only deals with the interim measure by the court. Obviously it is not within the scope of this section to inquire into the claim and the counter-claim made by both the parties in regard to the custody of the articles beyond what has been admitted by the respondent; Narain Sahai Aggarwal v. Santosh Rani, 1997 (2) Arb LR 322.

Power to refer parties to arbitration where there is an arbitration agreement.

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(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

Comments

Appointment of Arbitrator

It is not duty of court to adjourn a matter to enable parties to report to court about appointment of Arbitrator and then make reference; Pawan Sharma v. Tarkeshwar Shah, AIR 2007 (NOC) 156 (HP).

Expression—First statement on the substance of the dispute

The expression ‘first statement on the substance of the dispute’ contained in sub-section (1) of section 8 must be contra-distinguished with the expression ‘written statement’. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of judicial authority that the party has waived his right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, the party cannot be said to have waived his right or acquiesced himself to the jurisdiction of the court; Rashtriya Ispat Nigam Ltd. v. Verma Transport Company, AIR 2006 SC 2800.

Jurisdiction of Civil Court

(i) The language of section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator; P. Anand Gajapathi Raju v. P.V.G. Raju (Dead), 2000 (4) SCC 539.

(ii) Mere existence of arbitration clause in agreement does not bar jurisdiction of Civil Court automatically; Mahesh Kumar v. Rajasthan State Road Transport Corporation, AIR 2006 Raj 56.

Power of Court to appoint Arbitrator

Power of Court to refer parties for arbitration would and must necessarily include, imply and inhere in it the power and jurisdiction to appoint Arbitrator also; Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., Kochi, AIR 2007 (NOC) 233 (Ker).

Scope and object

Scope and object of section 8 of the Arbitration and Conciliation Act, 1996 and section 34 of the Arbitration Act, 1940 is different. Therefore, these two respective provisions of different Acts have no application to deprive the party of the legitimate right to invoke section 8 of the Arbitration and Conciliation Act to have the matter relating to the disputes referred to arbitration, in terms of the arbitration agreement; Kalpana Kothari v. Sudha Yadav, AIR 2001 SC 404.

Arbitration agreement

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(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in—

(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

Comments

Competence of Arbitrator

The arbitrator is competent to decide the objection on its own jurisdiction whether appointed as per the terms of the agreement within the provisions of section or appointed under the provisions of section 11; State of Jharkhand v. R.K. Construction (Pvt.) Ltd., AIR 2006 Jhar 98.

Enforcement of Foreign award and Domestic award—comparisons

In the present case, it is held by the court that comparison of the provisions of section 48 and section 34 of the Act shows that the grounds on which a domestic award can be challenged as also the grounds on which a party can resist enforcement of a foreign award are identical. Thus, as and when enforcement of the award is sought against the petitioner, it can resist the enforcement of the award on the same grounds on which it could have challenged the award under section 34 of the Act. Therefore, it cannot be said that the petitioner has no remedy of challenging the award; Jindal Drugs Ltd. v. Noy Vellesing Engineering, SPA, (2002) 2 Arb LR 323.

Administrative assistance

2009-04-18T10:27:00.001-07:00

In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.