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An Analysis of Law Question Paper of CS Executive JIGL DEC18

Chapter name Que No Marks

1 SOURCES OF LAW 1a,2a 5+4=9

2 CONSTITUTION OF INDIA 1c,2A(iv),3(b),5(b) 5+4+4+8=21
3 INTEPRETATION OF STATUTE 2A(iii),6(c) 4+4=8

4 THE GENERAL CLAUSES ACT,1897

5 ADMINISTRATIVE LAW 6A(iii) 4
6 LAW RELATING TO TORTS 1d,2c,2A(ii),6(d) 5+4+4+4=17

7 LIMITATION ACT,1963 4b 4

8 CIVIL PROCEDURE CODE,1908 1b,4d 5+4=9

9 INDIAN PANEL CODE,1860 2d,3d 4+4=8

10 CRIMINAL PROCEDURE CODE,1973 6A(iv) 4

INDIAN EVIDENCE ACT,1872 2b,4a,6a 4+4+4=12

11
SPECIAL COURTS,TRIBUNAL
12 UNDER COMPANIES ACT AND
OTHER LEGISLATIONS
13 ARBITRATION & CONCILIATION 3(c),4(c),5(a) 4+4+8=16
ACT,1996
14 INDIAN STAMP ACT,1889 3(a),6(b) 4+4=8

15 REGISTRATION ACT
1908:REGISTRATION OF
DOCUMENTS
16 RIGHT TO INFORMATION 6A(ii) 4
ACT,2005
17 INFORMATION TECHNOLOGY 2A(i),6A(i) 4+4=8
ACT,2000

TOTAL 132
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SUGGESTED ANSWER OF JURISPRUDENCE INTERPRETATION & GENERAL LAWS FOR DEC’18 EXAMS

Que 1(a) Critically examine the statement by Austin that “Law is a Command of sovereign”
Ans:- JohnAustin a noted English legal theoristwas the firstoccupantofthechair of Jurisprudence at theUniversityofLondon.
Austinis known for the CommandTheoryof law.Austinwasa positivist,meaningthatheconcernedhimselfon
what thelawwasinsteadof goingintoits justnessor fairness.

Austin differentiated between ‘Law properly socalled’ and‘laws improperly socalled’ and saidthatlaws properlysocalled
are general commands but not all of it is given by men for men. A specie of Laws properly so called are given by political
superiors to political inferiors. According to Austin law is the command of sovereign that is backed by sanction. Austin has
propagated that law is a command which imposes a duty and the failure to fulfill the duty is met with sanctions
(punishment). ThusLawhas three main features:
1. It is a command.
2. It isgivenbyasovereign authority.
3. Ithas asanction behindit.
Inordertoproperly appreciate Austin’stheoryoflaw,weneedtounderstandhisconception ofcommandandsovereign.
Command
It is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act,
and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the
presenceoftwoparties-the commander(politicalsuperior)andthecommanded(political inferior).
Sovereign
In Austin’s theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual
obedience from the people but itself does not obey some other authority habitually. According to Austin, the
sovereignisthesourceofalllaws.
Sanction
Istheevilconsequencethatfollowsontheviolationofacommand. To identify alaw,the magnitudeofthesanctionis
not relevant but the absence of sanction disentitles an expression of the sovereign from being a law in Austinian
sense. Sanction should not also be confused with a reward that might be on offer if a given conduct is followed or
refrained from.Rewardconfersapositiverightwhereasasanctionisanegativeconsequence.

Que 1(b) Discuss the doctrine of ‘ Res Sub Judice’ under section 10 of Civil procedure code, 1908.
Ans:- Section10providesthatnoCourtshallproceedwiththe trialofanysuitinwhichthematter
in issue is also directly and substantially in issue ina previously instituted suit between the same parties or between parties under
whomthey orany ofthem claim,litigatingunderthe sametitle,where such suitispending inthesameoranyother Court
(in India)having jurisdictiontograntthere liefclaimed,orinanyCourtbeyondthelimitsofIndiaestablished orcontinuedby
theCentralGovernmentandhavinglikejurisdiction,orbeforetheSupreme Court.
However,thependencyofasuitinaforeign courtdoes notprecludetheCourtsinIndiafrom trying asuitfounded on
thesamecauseofaction.
TopreventCourtsofconcurrentjurisdictionfromsimultaneously tryingtwo parallelsuitsin respectofsamematter inissue,Section
10isenacted.Thepurposeisalsotoavoidconflict ofdecision.Itisreallyintendedtogiveeffecttotheruleofresjudicata.Theinstitution
of second suit isnot barred by Section 10. Itmerely saysthatthe trialcannot beproceeded with.
Asuitwasinstitutedbytheplaintiffcompany alleging infringement bythedefendant companybyusingtradename of
 medicine and sellingthesameinwrapperandcartonof identicaldesignwithsamecolourcombinationetc.asthat ofplaintiff
company.Asubsequent suitwasinstituted indifferentCourtbythedefendant companyagainsttheplaintiffcompany withsame
allegation.TheCourtheldthatsubsequentsuitshouldbestayedassimultaneous trialofthesuitsindifferent Courts mightresultin
conflicting decisions asissueinvolved in two suitswastotallyidentical (M/s.WingsPharmaceuticals (P)Ltd.andanotherv.M/s.Swan
Pharmaceuticals andothers).
Even though if a case is not governed by the provisions of the Section and matters in issue may not be identical, yet the courts
haveinherentpowerstostaysuitonprinciple analogous to Section 10.
Que 1 (C) Discuss the test laid down by the supreme court of india to determine the entity of “state”,
Whether it is instrumentality or agency of state’
Ans:- In Ajay Hasia vs Khalid mujib, AIR 1981 SC 481, the supreme Courte has enunciated the
following test for determining whether an entity is an instrumentality or agency of the
state:-
i) Whether the financial assistance of the state is so meet almost the entire
expenditure of the corporation it would afford some indication of the corporation
being impregnated with government character.
ii) Whether the corporation enjoys a monopoly status which is conferred or protected
by the state.
iii) Existence of deep and pervasive state control may afford an indication that the
corporation is a state agency or an instrumentality.
iv) If the functions of the corporation are of public importance and closely related to
government functions, it would be a relevant factor in classifying a corporation as
an instrumentality or agency of government.
v) If a department of government is transferred to a corporation, it would be a strong
factor supporting an inference of the corporation being an instrumentality or
agency of government.
vi) When entire share capital is held by Govt.
Que 1 (d) Swaraj an employer of ABC Company Ltd., appointed rakesh as an independent contractor.
Discuss under what circumstances swaraj would be liable for the fault of Rakesh.
Ans:- Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the tort committed by
another.Amaster isvicariously liableforthetortofhisservant, principalforthetortofhisagentandpartnersforthetort
ofapartner.Thisisknownas vicariousliability intort.
It is to be remembered that an employer is vicariously liable for the torts of his servants committed in the course of
theiremployment, but he is not liable forthetorts ofthosewho arehisindependentcontractors.

A servant is a person who is employed by another (the employer) to perform services in connection with the
affairs of the employer, and over whom the employer has control in the performance of these services. An
independent contractor is one who works for another but who is not controlled by that other in his conduct in the
performance ofthatwork.These definitionsshowthatapersonisaservantwheretheemployer“retainsthecontrol
ofthe actual performance”ofthework.
Que 2 (a) Distinguish between “Ratio Decidendi” and “Obiter Dicta” in a judgment by a Court.
Ans:- Ratio Decidendi
Theunderlyingprinciple of a judicial decision, which isonlyauthoritative, istermed as ratio
decidendi. The proposition of law which is necessary for the decision or could be extracted from the decision
constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the
force of law as regards the world at large. In other words, the authority of a decision as a precedent liesin its ratio
decidendi.
 Prof. Goodhart says that ratio decidendi isnothing more thanthe decision based on the materialfacts of thecase.

Whereanissuerequires tobeansweredonprinciples,theprinciples whicharededucedby way of abstraction ofthe

material facts of the case eliminating the immaterial elements is known as ratio decidendi and such principle is not only
applicabletothatcasebuttoother cases also which areof similar nature.

It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the obiter
dictum. However, the determination or separation of ratio decidendi from obiter dictum is not so easy. It is for the
judgeto determinetheratio decidendiand to applyitoncasetobedecided.

Obiter Dicta
The literal meaning of this Latin expression is “said by the way”. The expression is used especially to denote those judicial
utterances inthecourse ofdelivering ajudgment which takenbythemselves,werenot strictlynecessaryforthedecision
oftheparticularissue raised.Thesestatementsthusgobeyondtherequirementofaparticularcaseandhavethe force
of persuasive precedents only. The judges are not bound to follow them although they can take advantage of them.
Theysometimeshelp thecause ofthereform oflaw.

ObiterDictaareofdifferentkindsandof varyingdegree of weight.Someobiterdictaare Deliberate expressions of

opinion given afterconsideration ona point clearly brought and argued before the court.It is quite often too difficultfor
lawyersand courts to see whether anexpression is the ratioof judgmentor just a causal opinionbythejudge.Itisopen,no
doubt, tootherjudges togiveadecision contrary tosuch obiter dicta.

Que. 2 (b) Distinguish between ‘Admission’ and ‘Confession’ under Indian Evidence Act 1872.
Ans:- Sections17 to 31 laydownthefirstexceptiontothegeneralruleknownasadmissionsand confessions.
Admissions
An admissionis definedinSection17as a statement,oral or documentary or containedin
electronic form which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons,andunderthecircumstances mentioned under Sections 18to
20. Thus, whether a statement amounts to an admission or not depends upon the question whether it was
madeby any ofthe persons and inany of the circumstances described in Sections18-20 andwhetheritsuggestsan
inference as to a fact in issue or a relevant fact in the case. Thus admission may be verbal or contained in
documents asmaps,bills,receipts, letters, booksetc.
(However, the word ‘statement’ has not been defined in the Act. Therefore the ordinary dictionary meaning is to
befollowed which is“something that is stated.")
An admission maybemadeby aparty,bytheagent orpredecessor-in-interest ofaparty, by
A person having joint propriety of pecuniary interest in the subject matter (Section 18) or by a “reference” (Section
20).
An admission is the best evidence against the party making the same unless it is untrue and made under the
circumstances which does notmake itbinding onhim.
An admission by the Government is merely relevant and non conclusive, unless the party to whom they are made
has acted upon and thus altered his detriment.
An admission must be clear, precise, not vague or ambiguous. In Basant Singh v. Janky Singh, The Supreme Court
held:

1. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made bya party in a
pleading and other admission. Under the Indian law, an admission made bya party in a plaint signed
 andverified by him may be used as evidence against him in othersuits. In other suits, this admission cannot be
regarded as conclusive andit isopentothepartytoshowthatitisnottrue.
2. Allthestatements madeintheplaintareadmissible asevidence.TheCourtis,however,
notboundtoacceptallthestatementsascorrect.TheCourtmayacceptsomeofthe statements and rejectthe
rest.”

Admission means conceding something against the person making the admission. That is why it is stated as a
general rule (the exceptions are in Section 21), that admissions must be self-harming; and because a person is
unlikelytomakeastatementwhich isself-harming unless itistrueevidence ofsuch admissionsasreceived inCourt.

These Sections deal only with admissions oral and written. Admissions by conduct are not covered by these
sections.Therelevancyofsuchadmissionsbyconductdependsupon
Section 8 and its explanations.
Oraladmissionsastothecontentsofelectronicrecordsarenotrelevantunlessthegenuineness oftherecord producedisin
question. (Section 22A)

Confessions
The Act doesnot definea confessionbutincludesinitadmissionsofwhichit is a species.
Thus confessions are special form of admissions. Whereas every confession must be an admission but every
admission may not amount to a confession. Sections 27 to 30 deal with confessions which the Court will take into
account.Aconfession isrelevantasanadmission unlessitismade:

i. To a personinauthorityinconsequenceofsomeinducement,threatorpromiseheldout by him inreference to

the charge against the accused;
i. To a Police Officer;or
i i. To any one at a time when the accusedisinthecustody ofaPolice Officerandno
Magistrate ispresent.

Thus, astatement made by an accused person if itis an admission, is admissible in evidence. Theconfession
is evidenceonlyagainstitsmakerandagainstanotherpersonwhoisbeing jointly triedwithhim foran offence.

Que 2 (c) Distinguish between “ Damnum Sine Injuria” and Injuria Sine Damnum” under the law relating to Torts.
Ans. Damnum Sine Injuria
Damnummeansharm,lossordamageinrespectofmoney,comfort,health,etc.Injuriameans
Infringementofaright conferred bylaw on theplaintiff. Themaxim meansthat inagiven case,a manmay havesuffered
damageandyethaveno action intort,because thedamage is nottoaninterestprotectedbythelawoftorts.
Therefore,causingdamage,however substantial to anotherperson is not actionablein law unless there is also a
violation of a legal rightoftheplaintiff.Commonexamplesare,wherethedamageresultsfromanactdonein the
exercise of legal rights.Thus,if|own ashop andyouopen ashop in theneighbor hood, as a resultofwhichIlosesome
customersandmy profitsfalloff,I cannotsueyouforthelose inprofits,becauseyou are exercising yourlegal
right.

Injuria Sine Damnum

It meansinjurywithoutdamage,i.e.,wherethereisnodamageresultedyet itisaninjuryor
 wrongintort,i.e.wherethereisinfringement ofalegalrightnotresultinginharmbut plaintiff can still sue intort.

Somerights orinterests aresoimportantthattheirviolationis anactionable tort without proof of damage. Thus when
there is an invasion of an “absolute” private right of an individual, there is an injuria and the plaintiff's action will
succeed even ifthereisno Domnum ordamages. Anabsoluteright isone,theviolation ofwhichisactionableperse,
i.e.,
withouttheproofofanydamage.Injuriasinedomnocoverssuchcasesand actionlieswhen therightisviolatedeven
though no damage has occurred. Thus the act of trespassing upon another’s land is actionable even though it has not
caused theplaintiffeventheslightest
Que. 2 (d) In exceptional cases, mere ‘preparation’ to commit an offence is punishable under Indian Penal code 1860.
Discuss.
Ans:-
Preparation
Preparation means to arrange necessary measures for commission of intended criminal act. Preparation itself is not
punishable as it difficult to prove that necessary preparations were Made for commission of the offence. But in certain
exceptional cases mere preparation is also punishable. Under the IPC, mere preparation to commit offences is
punishableastheyareconsideredto begrave offences.Some of them are as follows:

• Preparation to wage war against the Government.

• Preparation forcounterfeiting ofcoinsorGovernment Stamps.
Iii Possessingcounterfeitcoins,falseweightsormeasurementsandforgeddocuments.

iv. iv Making preparation tocommit dacoity.

Que. 2A. (i) Discuss “ Digital Signature” And Electronic Signature’ under the Information Technology Act 2000
Ans:- “Electronic signature” means authentication of any electronic record by a subscriber by means of the
electronictechniquespecifiedintheSecondScheduleandincludesdigital signature. [Section 2(1) (ta)]
“Digitalsignature” meansauthentication ofany electronic record byasubscriber by means of anelectronicmethodor
procedure in accordance with the provisions of Section3.
Que.2A (ii) Discuss the ‘Rule of strict Liability’ under the Law of Torts.
Ans:- In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or
negligence on the defendant's part. In other words, the defendant is held liable without fault. These cases fall under the
following categories:

1) LiabilityforInevitableAccident-Suchliabilityarisesincaseswheredamageisdone bytheescapeofdangerous
substancesbroughtorkeptbyanyoneuponhisland.Such cases arewhere aman is madebylaw an insure of
other against the result ofhis activities.
ii) LiabilityforInevitableMistake—Suchcasesarewhereapersoninterfereswiththe
Property or reputation of another.
iii) VicariousLiabilityfor Wrong committedbyothers—Responsibilityinsuchcases isimputed bylawon
groundsofsocialpolicy orexpediency. These caseinvolve liability ofmaster fortheactsofhisservant.

The rule in Rylandsv. Flethcer is that a man acts at his peril and is the insurer of the safety of his neighbour against
accidental harm. Such duty is absolute because it is independent of negligence on the part of the defendant or his
servants. It was held in that case that: “If a person brings or accumulates on his land anything which, if it should
escapemaycause damagetohisneighbours,hedoes soathis own peril.If itdoesnotescapeandcausedamage
he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent
 damage.”

The facts of this case were as follows: B, a mill owner employed independent contractors, who were apparently
competent toconstruct areservoironhislandtoprovidewater forhis mill. There were old disused mining shafts under
the site of the reservoir which the contractors failed to observe because they were filled with earth. The
contractors therefore, did not block them. When the water was filled in the reservoir, it bursts through the
shafts and flooded the plaintiff's coal mines on the adjoining land. It was found as fact that B did not know of the shafts and
had not been negligent, though the independent contractors, had been, B was held liable. Blackburn, J., observed;
“We think that the true rule of law is that the person, who for his own purposes brings on his lands and collects and
keepsthereanything
likely to do mischief if it escapes, must keep it at his peril and if, he does not do so is, prima facie answerable for all the
damagewhichisthenaturalconsequenceofitsescape.”
Que. 2A (iii) Explain the ‘ rule of Harmonious Construction’ for interpretation under General Clause Act 1997.
Ans:- Harmonious Construction: Different entries in the different lists are to be interpreted in such a way that a
conflict between them is avoided and each of them is given effect. It must be accepted that the Constitution does
not want to create conflict and make any entry nugatory. Therefore, when there appears a conflict between two
entries in the two different lists the two entries should be so interpreted, that each of them is given effect and,
forthat purpose the scope andmeaning of one may be restricted so as to give meaning to the other
also.
Que. 2A (iv) “ Article 20 of constitution of India guarantee protection against self- incrimination” Explain briefly.
Ans:- According to Article 20(2), no person accused of any offence shall be compelled to be a witness
against himself. In other words, an accused can not be compelled to state anything which goes against
him. But it is to noted that a person is entitled to this pretection, only when all three conditions are
fulfilled;
1) That he must be accused of an offence;
2) That there must be a compulsion to be a written; and
3) Such compulsion should result in his giving evidence against himself.
Que 3 (a) Atul mortgages his house of the value of 50,000 to Vijay. After some time Vijay buys the
house from Atul for 25,000. Decide the amount on which Vijay has to pay the stamp
duty under Indian Stamp Act, 1889.
Ans. Stamp duty will be paid on total value of 50,000.
Que 3 (b) What are the restriction on right to freedom of speech and expression under Article 19
of the Constitution of India?
Ans:- Permissible Restrictions:-

i) Sovereignty and integrityof India

ii) Security ofstate
iii) Friendly relationwithforeign states
iv) Public order
v) Decency or morality or
vi) Competentof court
vii) Defamation
viii) Incitementto an offence

Que 3 ( c) Discuss briefly the grounds for opposing the 'foreign award' made under the Arbitration
and Conciliation Act, 1996.
 Ans:- Section 48 of theActenumerates the conditions forenforcement of foreign awards and provides
that the party, against whom the award is invoked, may use one or more of the following
groundsforthepurposeofopposingenforcementofaforeignaward,namely:
i) the parties to the agreement referred to in section 44 were, under the law applicable to
them,undersomeincapacity, orthesaidagreementisnotvalidunderthelawto which the
parties have subjected It or, failing any indication thereon, under the law of the country
where the award was made; or
ii) thepartyagainstwhomtheaward isinvoked was notgivenproper notice of the
appointmentofthearbitratororofthearbitralproceedings orwas otherwise unable
to present his case;or
iii) the award deals with a difference not contemplated by or not failing 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 matter submitted to
arbitration can be separated from those not so submitted, that part of the award which
containsdecisionsonmatterssubmittedtoarbitrationmaybeenforced;or
iv) the composition ofthe arbitral authority orthe arbitralprocedure was notin accordance
with theagreementoftheparties,or,failingsuchagreement,was notin accordancewith
thelaw of the country where thearbitration tookplace ;or
v) 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; or
vi) thesubject-matterofthedifferenceisnotcapableofsettlementbyarbitrationunder
thelaw of India; or
vii) theenforcementoftheawardwouldbecontrarytothepublicpolicyofIndia.

Que. 3 (d) The `mens rea' is an essential element to constitute an offence under Indian Penal
Code, 1860. 'Discuss briefly.

Ans Mensreameansaguiltymind.Thefundamental principle ofpenalliability isembodied in the

maximactusnonfacitreamnisimenssitrea.Theactitselfdoesnotconstituteguiltunless donewitha
guiltyintent.Thus,unlessanactisdonewithguiltyintention,itwillnotbe criminally punishable.The
general rule to be stated is “there must be a mind at fault before there can be a crime”. Mens rea is a
subjective matter. Thus mens rea inan essential ingredient inevery criminal offence.

The motive is not an intention. Intention involves foresight or knowledge of the probable or likely
consequences of an injury. Inshort, mens rea is the state of mind which accompanies and directs the
conduct resulting intheactus reus.
Que 4 (a) What is 'documentary evidence' under Indian Evidence Act, 1872 ? Explain
briefly.
Ans. A"document"meansanymatterexpressed ordescribeduponanysubstancebymeansof
letters, figures ormarks, orbymore than one of those means,intended tobe used, orwhich
may be used for the purpose of recording that matter. Documents produced for the
inspection ofthe Court iscalledDocumentary Evidence. Section 60 provides thatthe contents of
adocumentmustbeprovedeitherbyprimaryorbysecondaryevidence.
 Primary evidence
"Primary evidence" means the document itself produced for the inspection of the Court (Section
62). The rule that the best evidence mustbe given of which the nature of the case permits has often
been regarded as expressing the great fundamental principles upon which the law of evidence
depends. The general rule requiring primary evidence of producing documents is commonly saidto
be based on the best evidence principle and to be supported by the so called presumption that if
inferior evidence is produced where better might be given, the latter would tell against the
withholder.

Secondary evidence
Secondary evidence is generally in the form of compared copies, certified copies or copies madeby
such mechanical processes as in themselves ensure accuracy. Section 63 defines the kind of
secondary evidence permitted by the Act. According to Section 63, "secondary evidence" means
andincludes.
i) certifiedcopies givenundertheprovisionshereafter contained;
ii) copiesmadefromtheoriginalbymechanicalprocesseswhichinthemselves ensurethe
accuracy ofthecopy,andcopiescomparedwithsuchcopies;
iii) copiesmade from orcompared with the original;
iv) counterparts ofdocuments asagainstthepartieswhodidnotexecutethem; (5)oral
accounts of the contents of a document given by some person who has himself
seen it.
Que 4 (b) Manoj died on 3rd August, 2016 before a right to institute a suit accrued, leaving
behind a minor son of the age of 15 years. Decide the time from where the period of
limitation shall be calculated under Limitation Act, 1963.
Ans:- The date up to which minor attends majority shall be excluded for the purposes of

computation of period of limitation.

Que 4 (c) Explain in brief the 'International Commercial Arbitration' under the Arbitration and
Conciliation Act, 1996.
Ans:- International Commercial Arbitration
International commercial arbitration" means an arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as commercial under the law in for in
India and where at least one of the parties is-
i) anindividual who isa nationalof,or habitually resident in,any country other than india or;
ii) abodycorporate which is incorporated inanycountryotherthan India;or
iii) an association or abody of individuals whose central management and control is exercised inany country other
than India; or
iv) the Governmentof a foreign country.
Que 4 (d) In a civil case what remedies are available for the defendant against whom an

ex-parte decree has been passed by the court ?

Ans:- Adefendanthasfourremediesavailableifanex-partedecreeispassedagainsthim:
i) He may file anappealagainst the ex-partedecreeunderSection 96 ofthe C.P.C.
ii) He may file anapplication for review of the judgement. (0.47,R.1)
 iii) Hemay apply forsettingasidetheex-parte decree.
iv) Asuitcanalsobefiledtosetasideanex-partedecreeobtainedbyfraudbutnosuit shall liefornon-service of
summons.
Itisopen to a party at the trial of asuitto use in evidence anyone ormore of the answers or any part ofthe answer of
the opposite party to interrogatories without putting in the others or the whole of such answers. But the court
may direct that connected answer should also be put in.

Que. 5 (a) Discuss in brief the provisions for challenging the arbitrator under the Arbitration and

Conciliation Act, 1996.

Ans:- Challenge procedure

Section 13 of the Act contains detailed provisions regarding challenge procedure. Sub- section (1) provides that
subject to provisions of Sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator. Sub-
Section(4)statesthatifachallengeunder anyprocedure agreeduponbythe partiesorundertheprocedure underSub-
section (2)is not successful, the arbitral tribunal shall continue the arbitral proceedings andmake an arbitral award. But
at that stage, the challenging party has the right to make an application in the Court to set aside the award in accordance
withSection34oftheAct.

Sub-section (2) provides that failing any agreement referred to in sub-section (1) of Section 13, a party who intends to
challenge an arbitrator shall, within 15 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. The tribunal shall decide on the challenge unless the arbitrator
challenged under sub-section(2) withdraws from his office or the other party agrees to the challenge. It is also provided
that where an award is set aside on an application made under sub-section (5) of Section 13 of the Act, the Court may
decideastowhetherthe arbitrator who ischallengedisentitledtoanyfees.
Que. 5 (b) Discuss the procedure establishment by law under Article 21 of the Constitution of India with decided case
laws.
Ans:- Procedure established by law: The expression ‘procedure established by law’ means procedure laid down by
statute or procedure prescribed by the law of the State.Accordingly
first,theremust bealaw justifying interference withtheperson’slifeorpersonalliberty, and secondly,thelawshouldbeavalid
law,andthirdly,theprocedure laiddownbythelaw should havebeen strictly followed.

The law laid down in A.K. Gopalan v. State of Madras, that the expression ‘procedure established by law’ means
only the procedure enacted by a law made by the State was held to be incorrect in the Bank Nationalisation
Case. Subsequently, in Maneka Gandhi's case, it was laid down, that the law must now be taken to be well
settled that Article 21 does not
exclude Article 19 and a law prescribing a procedure for depriving a person of ‘personal liberty’ will have to meet the
requirements ofArticle21andalsoofArticle19,aswellasof Article 14.

The procedure must be fair, just and reasonable. Itmust not be arbitrary fanciful or oppressive.Aninteresting,follow-
up of the Maneka Gandhi's casecameinaseriesofcases. In Bachan Singhv.StateofPunjab,AIR1980S.C.898,itwas
reiteratedthatinArticle21the founding fathers recognisedtherightoftheStatetodepriveapersonofhislifeorpersonal
libertyinaccordancewithfair,justandreasonableprocedureestablishedbyvalidlaw.

Presently,thistermpersonallibertyextendstovarietyofmatterslikerighttobail,rightnot tobehandcuffedexceptundervery
fewcases,righttospeedytrial,righttofreelegalaidetc.
Que. 6 (a) Explain in brief 'Principle of Estoppel' under Indian Evidence Act, 1872.
Ans:- Principle of Estoppel
Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person alleging contrary facts should not be
heard.The principles ofestoppelcoversonekindoff acts.Itsays thatman cannot approbateand reprobate, orthat aman
can not blow hot and cold,or that a manshall not sayonething at onetimeand later onsayadifferent thing.

The doctrine of estoppel is basedonthe principlethat it would bemost inequitable and unjust that if one person, by a
representation made, or by conduct amounting to a representation, has induced another to act as he would
nototherwise have done,theperson
who made the representation should not be allowed to deny or repudiate the effect of his former statement to the loss
andinjuryofthepersonwhoacted on it(SoratChunderv.Gopal Chunder).

Estoppelisaruleofevidenceanddoesnotgiverisetoacauseofaction.Estoppelbyrecord resultsfromthejudgement of
acompetent Court(Section 40,41).Itwaslaid downbythe Privy CouncilinMohoriBibeev.Dharmodas Ghosh, thatthe
ruleofestoppeldoesnotapply where the statement ismade toapersonwho knowsthereal factsrepresented andis not
accordingly misled by it. The principle is that insuch a case the conduct of the person seeking to invoke rule of estoppel is in
no sense the effect of the representation made to him. The main determining element is not the effect of his
representation orconduct ashaving inducedanothertoactonthefaithofsuchrepresentation orconduct.

In Biju PatnaikUniversityofTech.Orissav.SairamCollege,,oneprivateuniversitypermitted toconductspecial

examination ofstudentsprosecutingstudiesunderonetimeapproval policy.Afterinspection, 67studentswere
permitted toappearintheexaminationandtheir resultsdeclared.However,universitydeclinedtoissuedegreecertificatesto
thestudentson thegroundthattheyhadtoappearforfurtherexaminationforanothercondensedcourseas persyllabus
ofuniversity.Itwasheldthatoncestudentsappearedinanexaminationand theirresultsdeclared,theuniversity isstopped
from taking decisionwith holding degree certificate after declaration ofresults.

Que. 6 (b) Define 'Lease' under the Indian Stamp Act, 1889.
Ans:- i) A Patta
ii) A kabuliyatorotherundertakinginwriting,notbeingacounterpartofaleaseto cultivate,occupy orpayor
deliver rentfor,immovable property;
iii) Anyinstrument bywhich tolls of any description are let
iv) Anywritingonanapplication foraleaseintended tosignifythattheapplication is granted. [Section 2(16)]
Section 105 of the Transfer of Property Act defines lease as a transfer of a right to enjoy such property, made for a certain
time,expressedorimplied,orinperpetuity,inconsideration of apricepaidorpromised, orofmoney,ashareofcrops, service
or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee, who
accepts thetransfer onsuch terms.
Que. 6 (c) Explain the ‘mischief rule’ under the Interpretation of Statutes.
Ans:- The Mischief Rule orHeydon’s Rule
InHeydon’s Case,in1584, it wasresolvedbythe Barons of the Exchequer “thatfor thesure and true interpretation of
all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law) four things are to be
discerned andconsidered:
1. WhatwastheCommon Lawbeforethemaking of theAct;
2. Whatwas themischiefanddefectforwhichtheCommon Law did notprovide;
 3. What remedy theParliamenthadresolvedandappointed tocurethediseaseofthe
Commonwealth; and
4. Thetruereason oftheremedy.
Although judges are unlikely to propound formally in their judgments the four questions in Heydon’s Case,
consideration of the “mischief” or “object” of the enactment is common and will often provide the solution to a
problem of interpretation. Therefore, when the material words are capable of bearing two or more constructions,
the most firmly established rule for construction of such words is the rule laid down in Heydon’s case which has
“nowattained thestatus ofaclassic”.The rule directs thatthe Courts must adopt that construction which “shallsuppress
the mischief and advancethe remedy”. Butthis does notmeanthat a construction shouldbeadopted which
ignorestheplainnaturalmeaning ofthewords or disregardthecontextandthecollection inwhichtheyoccur.
toconduct specialexamination ofstudents prosecuting studiesunderonetimeapproval policy. Afterinspection,
67 students were permitted to appear in the examination and their results declared. However, university declined to
issue degree certificates to the students on the ground that they had to appear for further examination for another
condensed course as per syllabus of university. It was held that once students appeared in an examination and
theirresultsdeclared,theuniversity is estopped fromtaking decisionwithholding degree
certificate after declaration ofresults.
Que. 6 (d) What remedies can be sought under the Law of Torts ?
Ans:- JudicialRemedies
Threetypes ofjudicialremediesareavailabletotheplaintiffinanaction fortortnamely:
a. Damages,
b. Injunction, and
c. Specific Restitution ofProperty.
Extra JudicialRemedies
Incertain cases itislawfultoredressone’sinjuriesbymeansofselfhelpwithoutrecourse tothecourt.These remedies
are:

a) Self Defence

Itislawfulforanypersontousereasonableforcestoprotecthimself,oranyotherperson against any unlawful use of

force.

b) Prevention ofTrespass

Anoccupieroflandoranypersonwithhisauthoritymayusereasonableforcetoprevent trespassersenteringorto
ejectthembuttheforceshouldbereasonableforthepurpose.

c) Re-entry onLand

Aperson wrongfully disposedoflandmayretakepossession oflandifhecandosoinapeaceful and reasonablemanner.

d) Re-caption ofGoods

It is neither a crime nor a tort for a person entitled to possession ofa chattel to takeit either peacefully or by the
use of a reasonable force from one who has wrongly taken It or wrongfully detained it.

e) Abatement Of Nuisance
The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting it. Thus,
hemaycutoverhanging branchesasspreading rootsfromhis neighbour’s trees,but
 a. upongiving notice;
b. bychoosing theleast mischievous method;
c. avoiding unnecessary damage.
f) Distress DamageFeasant
An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage there and
detain them until compensation is paid for the damage. Theright is known asthat of distress damage feasant-to
distrainthingswhich aredoing damage.
Que. 6 A (i) Discuss the liability of Corporate body for data protection under Information Technology Act 2000.
Ans:- Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a
computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable
security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body
corporateshallbeliableto paydamages bywayofcompensationtotheperson soaffected. (Section 43A)

A person failing to provide information orfailing tofile a return etc. (as required by the Act), has to pay a penalty not exceeding
tenthousand rupees forevery day during which the failure continues. (Section44)

Contravention ofaruleorregulation attracts liability topay compensation up-to 25,000 rupees,tothepersonaffected

bysuchcontraventionortopaypenaltyup-tothatamount. (Section 45)
Que.6B (ii) Discuss in brief the composition and the powers of Central Information Commission (CCI) given under
the Right to Information Act 2005.
Ans:- The CentralInformation Commissionis to beconstituted by theCentral Government through a Gazette Notification.
The Central Information Commission consists of the Chief Information Commissioner and Central Information
Commissioners not exceeding 10.These shall be appointed bythePresident of Indiaonthe recommendations of a
committee consisting of PM who is the Chairman of the Committee; the leader of Opposition in the Lok
Sabha; and a Union Cabinet MinistertobenominatedbythePrime Minister.

TheChiefInformation Commissioner and Information Commissionersshallbepersons of eminenceinpubliclife

withwideknowledgeandexperienceinlaw,scienceandtechnology, social service, management, journalism,
mass media or administration and governance. CIC/ICshallnotbeaMemberofParliamentorMemberofthe
LegislatureofanyStateor Union Territory.Heshallnotholdanyotherofficeofprofitorconnected withanypolitical party
orcarrying on any business orpursuing any profession.
The general superintendence, direction and management of the affairs of the Commission vests in the Chief
Information Commissioner who shallbeassistedbythe Information.
Commissioners. Commission shallhaveitsHeadquarters inDelhi.Otherofficesmaybe established inotherpartsof
the country with the approval of the Central Government. Commission will exercise its powers without being
subjectedtodirectionsbyanyother authority. (Section 12)

CIC shallbeappointed foratermof5yearsfromdateonwhichheentersuponhisofficeor tillheattainstheageof65

years,whicheverisearlier.CICisnoteligibleforreappointment. SalarywillbethesameasthatoftheChiefElection
Commissioner.Thiswillnotbevariedto thedisadvantage oftheCICduring service.
Que 6A (iii) Explain in brief ‘Audi Alterum partem rule’ under the Administrative law.
Ans:- Ruleof fairhearing(audialterampartem)Thesecondprincipleofnaturaljusticeisaudi
alterampartem(hearthe other side) i.e. no oneshould becondemned unheard.Itrequires that bothsidesshouldbe
heard before passing the order. This rule implies that a person against whom an orderto his prejudice is passed
should be given information as to the charges against him andshould begivenopportunity to submit his explanation
thereto. Following aretheingredients oftheruleoffairhearing.
Que 6A (iv) Discuss the summery trail by a magistrate under the Criminal Procedure Code, 1973.
Ans:- Summary trial means the "speedy disposal" of cases. By summary cases is meant a case which can be
triedanddisposedofatonce.Generally, itwillapplytosuchoffencesnot punishable withimprisonment foraterm
exceeding 2years.

Section 260(1) oftheCriminal Procedure Codesets outtheprovisions forsummary trials.It says:

a) any ChiefJudicial Magistrate;
b) any Metropolitan Magistrate;
c) anyMagistrateoftheFirstclasswhoisspeciallyempoweredinthisbehalfbytheHigh Court,may,if
hethinksfit,tryinasummarywayalloranyofthefollowingoffences:
i. offencesnotpunishablewithdeath,imprisonmentforlifeorimprisonmentforaterm exceeding
twoyears;
ii. theftunderSection379,Section380orSection381oftheIndianPenalCode,where
thevalueoftheproperty stolendoes notexceed *200;
iii. receiving orretaining stolenproperty, under Section 411 oftheIndian Penal Code, wherethevalue ofsuch
property, doesnotexceed *200;
iv. assisting intheconcealmentordisposal ofstolenproperty, underSection 414ofthe IndianPenalCode,where
thevalueofsuchpropertydoesnotexceed*200;
v. offencesunderSections454and456oftheIndianPenalCode;
vi. insultwithintenttoprovokeabreachofthepeace,underSection504oftheIndian
Penal Code;
vii. abetmentofanyoftheforegoing offences;
viii. anattempttocommitanyoftheforegoingoffences,whensuchattemptisanoffence;