Sunday, 21 July 2019

Whether easement can be suspended?

Section 49 in The Indian Easements Act, 1882
49. Suspension of easement.-An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein.
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Leading judgment on doctrine of colourable legislation

 It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all.

Whether a statute is constitutional or not is thus always a question of power
(Vide Cooley's Constitutional Limitations Vol. I, p. 379.). A distinction, however, exists between a legislature which is legally important like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetency, and a legislature which enjoys only a limited or a qualified jurisdiction.
If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers.
Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements.
The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretense or disguise.
As was said by Duff J. in Attorney-General for Ontario v. Reciprocal Insurers and Others [1924] A.C. 328.),
"Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing."
10. In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the Constitutional prohibitions by employing an indirect method.

In cases like these, the enquiry must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the power of the legislative authority (Vide Attorney-General for Ontario v. Reciprocal Insurers and Others, [1924] A.C. 328at 337.). For the purpose of this investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or design (Vide Attorney-General for Alberla v. Attorney-General for Canada, [1939] A.C. 117 at 130.). But these are only relevant for the purpose of ascertaining the true character and substance of the enactment and the class of subjects of legislation to which it really belongs and not for finding out the motives which induced the legislature to exercise its powers.
It is said by Lefroy in his well known work on Canadian Constitution that even if the legislature avow on the face of an Act that it intends thereby to legislate in reference to a subject over which it has no jurisdiction, yet if the enacting clauses of the Act bring the legislation within its powers, the Act cannot be considered ultra vires (See Lefroy on Canadian Constitution, page 75.).

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 71 to 76 of 1953

Decided On: 29.05.1953

K.C. Gajapati Narayan Deo Vs. The State of Orissa

Hon'ble Judges/Coram:
M. Patanjali Sastri, C.J., B.K. Mukherjea, Ghulam Hasan, N.H. Bhagwati and Sudhi Ranjan Das, JJ.

Citation: AIR 1953 SC 375.
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Collection of Legal maxims

1)Actus Reus Non Facit Reum Nisi Mens Sit ReaDefinition: Latin: conviction of a crime requires proof of a criminal act and intent. Actus reus non facit reum nisi mens sit rea: (Latin) an act does not make a defendant guilty without a guilty mind.

2) Dormiunt Aliquando Leges Nunquam Moriuntur. Although the laws sometimes sleep, they never die.

3) DOTI LEX FAVET; PRAEMIUM PUDORIS EST; IDEO PARCATUR Meaning 





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Saturday, 20 July 2019

Whether time limit should be fixed for grant of sanction for prosecution of public servant?

In my view, the Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein 'due process of law' has been read into by introducing a time limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines:

a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under Section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.

b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in Clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.

c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1193 of 2012 

Decided On: 31.01.2012

 Subramanian Swamy Vs. Manmohan Singh and Ors.

Hon'ble Judges/Coram:
A.K. Ganguly and G.S. Singhvi, JJ.

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