QUESTION AS TO WHETHER CHILDREN FROM A SECOND MARRIAGE OF A HINDU DIED INTESTED WOULD HAVE A SHARE IN THE ANCESTRAL PROPERTY AN ANALYSIS OF JUDGMENT REFERRED TO LARGER BENCH
To understand the question, we must know the law. Preliminary: Point to be considered about Second Marriage is a person is in relation without taking divorce and is not a widower, than what is stated herein is applicable. If Second Marriage is legal than children born out of wedlock have equal rights that of first marriage. Hindu Law: This is pertaining to Hindu succession and testator who died without making a WILL. Such succession is governed by Hindu Succession Act,1956. Who is Hindu? According to Hindu Succession Act it applies to : (a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion; and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The Explanation says.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:— (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. It also applies to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs and included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. Pondicherry: this Act shall apply to the Renouncants of the Union territory of Pondicherry.” [Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).] (a) “agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males; (c) “cognate” — one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males; (d) the expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; (e) “full blood”, “half blood” and “uterine blood”— (i) two persons are said to be […]
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ABOUT STRIKING DOWN OF 97TH AMENDMENT TO THE CONSTITUTION
Part IXB under the chapter heading ‘The Co-operative Societies’. The Constitution 97th Amendment Act was passed by the requisite majority of the Lok Sabha on 27.12.2011 and the Rajya Sabha on 28th December,2011. The Presidential assent to the aforesaid Amendment followed on 12th January, 2012 and the said Amendment was published in the Official Gazette of India on 13th January,2012, coming into force with effect from 15th February,2012. The 97th Constitutional Amendment was challenged in the matter of Rajendra N Shah v. Union of India 2013 (2) G.L.R. 1698 and the Gujarat High Court allowed the said Public Interest Litigation by declaring that the Constitution 97th Amendment Act, 2011 inserting part IXB containing Articles 243ZH to 243ZT is ultra vires the Constitution of India for not taking recourse to Article 368(2). The important question raised in these petitions and decided by a division bench of the Gujarat High Court by its judgment dated 22nd April,2013 is whether Part IXB is non est for want of ratification by half of the States under the proviso to Article 368(2). The judgment of the High Court has declared that the said constitutional amendment inserting Part IXB is ultra vires the Constitution of India for want of the requisite ratification under Article 368(2) proviso, which however will not impact amendments that have been made in Article 19(1)(c) and in inserting Article 43B in the Constitution of India. That is formation of Associations and States endeavor to promote voluntary associations under Directive Principles. The amendment was carried out in The Maharashtra Co-operative Societies Act, 1961 in consonance with the provisions of 97th Constitutional Amendment which came into effect from 12th January, 2012. The Maharashtra Co-operative Societies Amendment Act came into effect from 13th August, 2013. New Model bye-laws came into force from September 2014, duly approved by the Commissioner for Co-operation and Registrar, C.S., Maharashtra State, Pune. The overall enforcement and application of the old Bye-Laws are the same with certain modifications to be in consonance and in agreement of the 97th amendment to the Constitution of India. NOW LET US SEE GIST OF THE AMENDMENTS UNDER 97th CONSTITUTIONAL AMENDMENTS : The Constitution of India is amended by 97th Constitution of Amendment and inserted Part IXB to the Constitution of India, a Chapter relating to the Co-operative Societies. Article 243ZH to 243ZT is inserted by this Amendment Act of 2011 with effect from 15th February 2012. A Chapter defines various terms. Authorized person in Article 243ZH(a). Article 243ZH(b) defined the terms Board and it means the Board of Directors or the Governing body of the Society by whatever name called to whom the control of management of the affairs of the Society is entrusted. Article 243ZH(c) defined the terms Co-operative Society and it means a Society registered or deemed to be registered under any law relating to the Co-operative Societies for the time being in force. Article 243ZH(d) defined the terms Multi-state Co-operative Society and it means whose object is not confined to one State and is registered or deemed to be registered under the law for the time being in force relating to such […]
Read moreTHE FOURTH ESTATE : THE POLICE (INCITEMENT TO DISAFFECTION) ACT, 1922 PARALLEL INVESTIGATION AND THE VIEWS OF COURTS
The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence. Article 19(1) (a) grants every citizen Freedom of Speech and Expression. We hear in News Channel debate that in Mumbai police is using British Era Act. That is The Police (Incitement to Dissatisfaction) Act,1922 ( the said 1922 Act) It was a news for any lawyer. Justice M.C.Chagla had said, there are so many laws in India , that we also come to know when it is argued by an Advocate before us. This was relating to Rationing Law. Under the circumstances its necessary to read and understand the views of the Courts after Independence. Its relevant for us to study and understand the law and its effectiveness. 1. Short title, extent and commencement.— (1) This Act may be called the Police (Incitement to Disaffection) Act, 1922. [(2) It extends to the whole of India, except [the territories which immediately before 1st November, 1956, were comprised in Part B States].] (3) It shall come into force in any State or part of a State on such date as the State Government may, by notification in the Official Gazette, direct. State amendments Andhra Pradesh.—In sub-section (2) of section 1, after the expression ‘except the territories which immediately before the 1st November, 1956 were comprised in Part B States’ add ‘other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956’. [Vide Andhra Pradesh Act 23 of 1958, sec. 3 and Sch. (1-2-1960)] Madhya Pradesh.—In section 1— (i) in sub-section (2), after ‘Part B States’, add ‘other than the Madhya Bharat and Sironja regions of the State of Madhya Pradesh’; (ii) for sub-section (3), substitute the following:— “(3) It shall be in force in all such areas in Madhya Pradesh in which it was in force immediately before the commencement of Madhya Pradesh Second Extension of Laws Act, 1961 (40 of 1961), and shall come into force in other areas, on such date as the State Government may, by notification, appoint”. [Vide Madhya Pradesh Act 40 of 1961 First Schedule, Part A, Item 5.] Maharashtra, Gujarat.—In its application to the State of Maharashtra in section 1.— (i) To sub-section (2), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall extend to the Saurashtra and Hyderabad areas of the State of Bombay”. (ii) To sub-section (3), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall come into force in that part of the Saurashtra area of the State of Bombay in which the Police (Incitement to Disaffection) Act, 1922, as modified and applied to that area by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, was in force immediately before such commencement.” [Vide Bombay Act 77 of 1958, sec. 3 (7-10-1958): Act 11 of 1960, sec. 87 (1-5-1960)] (Meghalaya) —In […]
Read moreApplicability of Permit to run Diamond Polishing Unit in Residential Zones U/s 390 of BMC Act, 1888 DCR 1991 and DCPR 2034
Whether the Q Company sought to have obtained a License under Section 390 of B.M.C. Act, 1888? For the ready reference we reproduce below the said Section 390 for your ready reference: “390. Factory of not to be newly established without permission of the Commissioner. (1) No person shall newly establish in any premises any factory, workshop or workplace in which it is intended that stream, water [electrical] or other mechanical power shall be employed, without the previous written permission of the Commissioner, [nor shall any person work, or allow to be worked, any such factory, workshop or workplace without such permission.] (2) The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory, workshop or workplace in the proposed position is objectionable by reason of the density of the population in the neighbourhood thereof, or will be a nuisance to the inhabitants of the neighbourhood. [(3) If any written permission for the establishment of a factory, workshop or workplace granted under sub-section (1) be revoked by the Commissioner in the exercise of his powers under sub-section (3) of section 479, no person shall continue or resume the working or use of such factory, workshop or workplace until such written permission is renewed or a fresh written permission is granted by the Commissioner.]” The term “factory” is defined under Factory Act, 1948 as under: Factory Act, 1948 Factory: S.2 (m) – “factory” means any premises including the precincts thereof – (i) Whereon 10 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on with the air of power, or is ordinarily so carried on, or (ii) Whereon 20 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on without the air or power, or is ordinarily so carried on – but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1962), or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place; Explanation I: For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account; Explanation II: For the purpose of this clause, the mere fact than an Electronic Data Processing unit or a computer unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or par thereof. The term `factory’ in its general sense is defined as, “a building or buildings where goods are manufactured or assembled in large quantities”. Workplace is defined as, “the office, factory, etc. where you are employed” Workroom is defined a, “a room in which certain work is done”. Service Industry is defined as, “a sector of Industry providing intangibles, not products”. […]
Read moreOpinion on provisions of recovery of Octroi when not paid on demand or short paid Octroi Rule 25 versus GST Section 73
Following queries were raised in a case for Octroi:- What is the time period for recovery of Octroi not paid or short paid? If adjudicatory proceedings are not completed within a reasonable period, the same are liable to be quashed? Is Municipal Corporation of Greater Mumbai bound to disclose how they have arrived at impugned arrears of octroi and penalty thereon? We will here also discuss provisions of Central Goods and Service Tax of 2017 ( GST) as today octroi is repealed. First let us see provisions of Octroi Facts of the case an example The “A Company” is listed in Bombay Stock Exchange and National Stock Exchange and Company is engaged in the business of manufacturing of garments and retail sale of garments and various other products having Brand name. “A Company” paid octroi on all the articles which are imported by them within the vicinity of Municipal Corporation of Greater Mumbai (“MCGM”) for sale, use and consumption. Somewhere in the year 2014, the MCGM issued a letter for verification of payment of octroi on electronic goods imported / brought into Mumbai from outside Mumbai vide their letter and called upon the Company to furnish the details of import of mobile, laptop, computer from April 2013 to October 2014. By this letter, the MCGM further threatened the “A Company” that non-compliance of the above requisites warrants action as provided in Mumbai Municipal Corporation Act, 1888 (“the MMC Act”) and Octroi Rules framed thereunder including issuance of stop work notices and/or stopping import of material by the “A Company” into Mumbai. Thereafter once again by their letter the MCGM recorded that the Vigilance Cell is investigating verification of payment of octroi on import of goods into the Mumbai limit for use, sale and consumption. “A Company” was called upon to furnish invoices / octroi paid receipt for the relevant period for verification. Thereafter, “A Company” was threatened of legal action and called upon them to furnish necessary documents. “A Company” furnished the documents once again. The MCGM sent Reminder to “A Company” has not submitted receipt nor any relevant documents though the “A Company” has submitted Purchase List. The MCGM once again demanded Godown Register. Finally, by MCGM issued a Demand Notice from the “A Company” We now first deal with the provisions of Constitution of India, prior to 101 Amendment Act 2016 to the Constitution of India on introduction of Goods and Services Tax 2017. Please note that Octroi is now Repealed and Government has said that citizens should not be harassed by Tax department by opening old cases. Article 14 – Equality before law – The State shall not deny to any person equality before the law or the equal protection of the law within the territory of India. – Article – 19 Protection of certain rights regarding freedom of speech, etc. All citizens shall have the right- To freedom of speech and expression; To assemble peaceably and without arms; To form associations or unions; To move freely throughout the territory of India; To reside and settle in any part of the territory of India; [and] to practice […]
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