Is Sky the Limit or its Limited Sky ? Right to Privacy and Drones
Let us see first what is Drone? In ancient times pigeons were used as flying objects for transmitting data from person to person. They were trained to locate the person. Similarly monkeys were also messenger for transmitting data but there was nothing more than transmitting messages. In 4th and 5th Century great Poet Kālidāsa created his own genre of poetry with Meghadūta (The Cloud Messenger), the story of a Yaksha trying to send a message to his lover through a cloud. Kalidasa set this poem to the mandākrāntā meter, which is known for its lyrical sweetness. It is one of Kalidasa’s most popular poems and numerous commentaries on the work have been written. In todays time we have advance version of Drone that is Unmanned Vehicle. An unmanned aerial vehicle (UAV) (or un-crewed aerial vehicle, commonly known as a drone) is an aircraft without a human pilot on board and a type of unmanned vehicle. UAVs are a component of an unmanned aircraft system (UAS); which include a UAV, a ground-based controller, and a system of communications between the two. The flight of UAVs may operate with various degrees of autonomy: either under remote control by a human operator or autonomously by onboard computers. Categories of Drone and its uses UAVs were originally used for missions too “dull, dirty or dangerous” for humans. While they originated mostly in military applications, their use is rapidly expanding to commercial, scientific, recreational, agricultural, and other applications, such as policing and surveillance, product deliveries, aerial photography, infrastructure inspections, smuggling, and drone racing. Civilian UAVs now vastly outnumber military UAVs, with estimates of over a million sold by 2015. It can also be used for terror and spying. A UAV is defined as a “powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or nonlethal payload”, missiles are not considered UAVs because the vehicle itself is a weapon that is not reused, though it is also un-crewed and in some cases remotely guided. That being said, UAV is a term that is commonly applied to military use cases UAVs typically fall into one of six functional categories (although multi-role airframe platforms are becoming more prevalent): Target and decoy – providing ground and aerial gunnery a target that simulates an enemy aircraft or missile Reconnaissance – providing battlefield intelligence Combat – providing attack capability for high-risk missions Logistics – delivering cargo Research and development – improve UAV technologies Civil and commercial UAVs – agriculture, aerial photography, data collection Classifications according to aircraft weight are quite simpler: Micro air vehicle (MAV) – the smallest UAVs that can weigh less than 1g Miniature UAV (also called SUAS) – approximately less than 25 kg Heavier UAVs First we will study two important Judgments of Supreme Court touching the subject of Right to Privacy and provisions of open sky to fly unmanned vehicles in India. Flying unmanned vehicles has many uses but it has many disadvantage. It can be utilized for terror purpose and it can also used for surveillance. In India till recently […]
Read moreCOVID 19 AND VIRTUAL COURTS PROS AND CONS
What is real court room. In a court room you enter. Many senior counsels there and other lawyers. Big bag of papers and Judgments, all interns and juniors listen to arguments and cross examination of witness. Judge is recording evidence defense lawyer says My Lord real witness is entering court room and everyone look at the entrance of court room. This we have seen in Hindi Films. Drama, suspense and action. New generation must see Mamta movie where Court room set up is shown. If you want to see how Jury functions, than you must see Nanavati Murder case of Akshay Kumar. But this was prior to covid19. We are now on virtual courts and post covid consequences. We are heading toward virtual courts. Like e-market, e-schools the Judiciary is taking new avatar Justice on line. Many firms are now advising online and even Mediation carried out online. But in India in May 2017 then CJI Justice Kehar inaugurated Integrated Management System to go Apex Court paperless. An Integrated Management System (IMS) integrates all of an organization’s systems and processes into one complete framework, enabling an organization to work as a single unit with unified objectives. Covid a pandemic has changed life. Whether its temporary or long tenure time will say but in the current scenario facility is provided for Litigants to file the plaint electronically through e-Filing and also pay the Court Fees or Fine online through https://vcourts.gov.in Litigant can view the status of the case also online through various channels created for service delivery. However for adjudication purpose the Litigant may have to appear in person or through the Lawyer in the Court. Virtual Court is a concept aimed at eliminating presence of litigant or lawyer in the court and adjudication of the case online. Due to lock down, Apex Court started Virtual Courts and hearings are conducted orders are also passed. Advantage of Virtual Courts are : Less of paper work and environment friendly; Witness in Dubai , London via video conferencing can depose ; It saves travelling time; Litigant of Bangalore need not travel to Mumbai or Delhi and can remain present via video conferencing ; Cost effective; Electronic documents have changed the world; Social media has changed traditional working of lawyer; Company Courts in Bombay High Court had started digital filing in 2012-2013; Economic and easy to appear and remain present poor litigants will suffer Examples of virtual hearing Best example of virtual hearing first of its kind was of Kasab 26/11 terror accused in Bombay High Court. In an Arbitration matter I have done examination of witness in Dubai in an Arbitration matter as he was unable to come. It saved his 3 working days and cross examination was over in one day. So, time and cost of accommodation and traveling was saved. Disadvantages of Virtual Courts: Its against principles of Trial in open court is undoubtedly essential for the healthy, objective, and fair administration of justice. One of the fundamental principles of natural justice, ‘Open Court’ is found in the Constitution of India under Article 145(4); Section 327 of the Code of Criminal […]
Read moreCan Society insist on Succession Certificate for Transfer and Sale of a Flat and Share Certificate attached thereto?
Is it mandatory for the daughters of Hindu deceased died intestate to obtain Succession Certificate? Ans: Negative The said nomination was registered by the Society. The said Member died leaving behind 4 daughters as the only heirs and legal representatives. The daughters after the demise of the said member being their mother jointly applied to the Society to enter their names as members. As per the directions of the Society, the heirs and legal representatives invited adverse claim by giving Public Notice and Advocate issued a legal opinion for transfer of flat to the nominees and opined that since there is no adverse claim on the shares, the same can be transmitted and transferred to the legal heirs of the deceased. In the meantime, subject to opinion the Society transferred the said Share Certificate. The nominees also executed Indemnity cum Declaration Bond to the Society. Hence, all the legal formalities for transfer of the said Share Certificate in the name of the nominee was complied in accordance with law. Thereafter, as the daughters became regular members of the Society they gave notice to the Society for sale of the said Share Certificate giving first preference of purchase to the current existing members. One of the existing members agreed to purchase the said flat. However, the Society insisted on obtaining Succession Certificate. The question now arise is whether in absence of Will of a Hindu deceased is it mandatory for Hindu daughters to obtain Letters of Administration or Succession Certificate. 212. Right to intestate’s property. – (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction. (2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi]” We now explain the said provision with the assistance of various judgments of the Hon’ble Court of India. In Adarsh Rattan and others Vs State Bank of India reported in 1987(2) ALL IBLJ 363. Quoting the said provisions of law, the Punjab and Haryana High Court relying upon the Judgment in Ashutosh Ghosh Vs Pratapchandra Banerjee reported in (1937) ILR 1 Cal. 433 recorded in paragraph No.14 that the Estate of the Hindu deceased could not be given to his heir without obtaining Letters of Administration. That was the case in which a Hindu had purchased a policy of insurance there was a specific term therein that the person or persons to whom the sums assured are payable are his executors, administrators or assigns. The heirs were neither administrators nor the executors nor the assigns. In this context the Calcutta High Court ruled that there was no jurisdiction for reading the work “Administrator” in the policies as including those who are relieved of the necessity of taking out Letters of Administration by reason of provision of Section 212. In paragraph No.16 of the said Judgment, His Lordship directed to furnish Indemnity Bond and observed that “one does not have to coin unnecessary reasons for […]
Read moreCan You Transfer Property on basis of Power of Attorney?
Let us understand what id Power of Attorney ( POA) ? The term POA is defined in the Power of Attorney Act,1882 and it says Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. 1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. It means that definition is inclusive and any document which empowers to act on behalf of executor is POA. It attracts Stamp Duty and in certain cases if property is transferred by virtue of POA, than Stamp Duty is attracted as on Deed of Conveyance. Scope of Power of Attorney A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata – 2005 (12) SCC 77, Court held: A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.- An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on […]
Read moreDeed of Family Arrangement & Law
Best way to family dispute settlement is to record the terms by way of Deed of Family Arrangement or Family Settlement. What is Family Settlement? What does law say? Whether it requires registration? It attracts Stamp Duty? Now we will take up first Question What is Family Settlement? In the matter of Sahu Madho Das And Others vs Pandit Mukand Ram And Another 1955 AIR 481= 1955 SCR (2) 22 Meaning of Family Arrangement was expressed and interpreted the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present. In Ram Charan Das vs Girija Nandini Devi 1966 AIR(SC) 323 it was held that, Courts give effect to a Family Settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word family in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute In Tek Bahadur Bhujil vs Debi Singh Bhujil 1966 AIR(SC) 292 Family Arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the Family Arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess Does it require Registration? Ramgopal vs Tulshi Ram And Anr. AIR 1928 All 641 Following Principles were laid down: (1) A family arrangement can be made orally. (2) If made orally, there being no document, no question of registration arises. (3) If though it could have been made orally, it was in fact reduced to the form of a “document”, registration (when the value […]
Read moreVexatious Litigation Act
Maharashtra has provision to stop vexatious litigant, while for Central Government a Bill No XI is introduced in Rajya Sabha on 11th March 2016. What is Vexatious? In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the act or an instance of vexing or annoying or distressing thing. “Vexatious” means such as to cause vexation. (See The Oxford English Reference Dictionary, Edition 1995). The term “vexatious”, when used in law, signifies an action not having sufficient ground therefore and seeking only to annoy *7* appln. 3397.03. sxw the adversary. The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under: “The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.” “Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under: “An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under: (a) Vex : to harass, disquiet, or annoy.(b) Vexation : The damage that is suffered as a result of another’s trickery or malice.(c) Vexatious : (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.(d) Vexatious litigant : A litigant who repeatedly files frivolous lawsuits.(e) Vexatious proceeding : A lawsuit instituted maliciously and without good cause. The Object and Reasons of the Bill are : Frivolous and vexatious litigations are the cause of concern for the courts for quite some time. Often, this matter has been highlighted by various courts and the Law Commission as well which favoured for a check on the filing of frivolous and vexatious proceedings. Attimes, it has been seen that many persons abuse the process of law and indulge in the habitual and intentional filing of frivolous and vexatious civil or criminal proceedings to harass other persons without any reasonable ground. It has also been observed by the courts that some persons habitually and persistently file cases on the issues, which have already been decided once or more than once against some parties or their successors or against different parties. Besides the harassment, filing of such proceedings also leads to wastage of the precious time of the law courts which are already burdened. Such frivolous litigation cause unnecessary and avoidable strain on the States’ resources in the area of dispensation of justice. There is no denying of the fact that every person has right to file civil or criminal proceedings against any other person, but a check is necessary to allow the court to examine the bona fide of a person filing the proceeding. Many countries in the world, like the USA, the UK have enacted a law on the filing of frivolous and vexatious litigation. In our country also, there is a law on the subject in two States, i.e., Tamil Nadu and Maharashtra. In view of the concern expressed by the courts, it is necessary that a central law be enacted to prevent the […]
Read moreMEDIATION , WRITTEN STATEMENT And LIMITATION ACT The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act , 2015 No. 4 Of 2016
“Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.”;
Read moreInternational Award for sell of security by stepping down Indian Company in favour of foreign Company under Joint Venture at old price
Origin of Issue: The Judgment: The above issue first came up in Tata Docomo matter where RBI intervened when Tatas agreed to comply International Arbitration Award. They despite of intervention by RBI filed Consent Terms and directions were given to parties to obtain sanction from RBI and other competent authorities. Ntt Docomo Inc vs Tata Sons Limited on 28 April, 2017 Delhi High Court In this matter Petitioner sought to execute final Award of a London Arbitration Tribunal. The issues before AT ( Arbitral Tribunal) were : (i) Whether special permission from RBI was required to perform the Sale Option at a price in excess of the NPR Fair Value without violating Indian law? (ii) Whether Tata had an “absolute” obligation to perform the Sale Option under Clause of the SHA? (iii) Whether Tata and Docomo were obliged to make reasonable endeavours to obtain such special permission of RBI, and if so whether Tata made reasonable endeavours to obtain RBI‟s special permission? (iv) What is the consequence in law, and under the contract, of the refusal of RBI to grant special permission? (v) Whether Tata’s non-acquisition of the Sale Shares at the Sale Price paid directly or indirectly constituted a breach of the SHA by Tata? (vi) Whether, (payment of any amount in excess of the FEMA Pricing Guidelines is prohibited, such excess amount can be indirectly made good by way of an award of damages or restitution? (vii) Whether in any event Docomo is entitled to restitution of 50% of its investment?” We will discuss in particular one Issue : The question whether a contractual obligation remains enforceable if it is subject to a requirement for special permission under the FEMA ? Was it necessary for the AT to decide whether special permission was required in order for Tata to make payment under the indemnity in the second part of Clause , or the effect in law of RBI’s refusal of special permission? The AT held that, there were other methods of performance which were unaffected by the refusal. Tata might or might not have been in a position to perform in ways which were the subject of a general permission in practice, but that is a different matter.” It categorically held that “Tata is liable for breach of contract.” The impediment to performance was therefore factual rather than legal. The only reason why the aforementioned two methods of performance were not available to Tata after the delivery of the Trigger Notice in 2014 was that the market value of the Sale Shares had fallen, so that no non-resident buyer was willing to pay the Sale Price; and the fair market value was a fraction of the Sale Price. (iii) The question whether a contractual obligation remains enforceable if it is subject to a requirement for special permission under the FEMA Regulations does not, therefore, arise. Nor was it necessary for the AT to decide whether special permission was required in order for Tata to make payment under the indemnity in the second part of Clause 5.7.2, or the effect in law of RBI’s refusal of special permission. RBI […]
Read moreThe Principles of The Law of Liquidated Damages under Indian Laws
Let us first learn Law relating to Liquidated damages in India. Section 73 in The Indian Contract Act, 1872 Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. —When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. —When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.” Explanation.—In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Section 74 in The Indian Contract Act, 1872 74 Compensation for breach of contract where penalty stipulated for:- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation. — A stipulation for increased interest from the date of default may be a stipulation by way of penalty.] (Exception) — When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the [Central Government] or of any [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, […]
Read moreRights of “ legal heirs” Distinction between month to month tenancy and contractual tenancy
Definition: Code of Civil Procedure,1908 definition of Legal Representative reads as under:Section 2 (11)“legal representative” means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.Maharashtra Rent Control Act,20007 (4) “legal representative” means a legal, representative as defined in the Code of Civil Procedure, 1908, and includes also, in the case of joint family property, the joint family of which the deceased person was a member;7(15) “tenant” means any person by whom or on whose account rent is payable for any premises and includes,- (a) such person,- (i) who is a tenant, or (ii) who is a deemed tenant, or (iii) who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or (iv) who has derived title under a tenant, or (v) to whom interest in premises has been assigned or transferred as permitted, by virtue of, or under the provisions of, any of the repealed Acts; (b) a person who is deemed to be a tenant under section 25; (c) a person to whom interest in premises has been assigned or transferred as permitted under section 26; (d) in relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant’s family, who,- (i) where they are let for residence, is residing, or (ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the court. Explanation– The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenantCourts ViewRights of tenant under both Rent Act and Transfer of property Act,1882 “TP Act”.Municipal Corporation For Greater Bombay vs Lala Pancham Of Bombay & Others on 1 October, 1964 1965 AIR 1008, 1965 SCR (1) 542 We have no doubt that a tenant has both under the Transfer of Property Act and under S. 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 an interest in the demised premises which squarely falls within the expressions property occurring in sub-cl. (f) of cl. (1) of Art. 19 of the Constitution. The right which a tenant enjoys under this sub-clause is, however, subject to the provisions of cl. (5) of Art. 19 which, among other things, provides that the right recognised by the sub-clause does not affect the operation of any existing law in so far as it imposes, ,or prevent the State from making any law imposing, reasonable restrictions on […]
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