Introduction: The Hindu Succession Act 1956 was a significant change brought to the position of the women in the society in regard to the inheritance of the ancestral property. The transfer of the property from father to sons was common but the enactment of this amendment act 2005 ensures with transforming the property ownership, as women being recognized as the legal heirs to the property. The enactment of this act included the property rights of their fathers and husbands. In relation to this act, it made legally permissible for the daughters to inherit their father’s property but it made restrictions in respect to joint family under Mitakshara system. However, it is noted this act made the first step towards the gender equality in the property rights but the norms of the society still persist making the search for gender equality still a battle. This context was further enhanced by the 2005 Amendment which upgrade a daughter’s position to inherit her father’s property by allocating her equal standing alongside the sons and making her a coparcener. Though, there are many social changes that are yet to happen before women will completely know what inheritance of the ancestral property and their rights under such laws are.

Key Provisions of the Hindu Succession Act,1956:

This act provided the inheritance and succession to the property among Hindus, Buddhists, Jains, and Sikhs. The following points are some of the major provisions of the act:

Prior to the enactment of this act women had a very little right to claim the property. This act provides a base under Section 8, property rights to daughters, wives, and mothers as Class I heirs. Women’s right in regard to husband’s property was brought into the law by including and raising them as Class I heirs.

In case of joint family this act does not give any co-owners rights to women as it had the provisions for men. So, in the ancestral property under the Mitakshara system the women did not automatically eligible as coparceners.

For the self-acquired property, the property which is acquired by the person himself can be inherited by a legal heir irrespective of the gender. For the ancestral property, traditionally it was considered that sons were the co-owners of joint family property.

In this act, some heirs were disqualified from inheriting of the property rights. For example, the disqualification sates that people who were proved of having guilty of some offenses like killing a person from whom it was supposed to be inherited and those who renunciates their religion was barred from inheriting property.

By this act a Hindu is allowed to execute a will for the disposal of his property. For example, if a man dies intestate the property shall be divided according to the provisions of the act by giving priority to Class I heirs above all.

This act enhanced the right to property for the widow’s inheriting her deceased husband. Thus, making mandatory the financial security of the widows.

The act gives the permission to a Hindu by altering his will in her lifetime by making it flexible and right to update.

The 2005 Amendment:

The Hindu Succession Act (Amendment) Act 2005 made a notable change towards the step of gender equality in regard to the property rights to women’s inheritance and coparcenary rights within the Hindu families. While daughters could inherit the property but not given the right to inherit the joint family property matters.

The 2005 Amendment to the Hindu Succession Act, 1956 marked a remarkable milestone by recognizing daughters as equal coparceners with sons in regard to the ancestral property. This act enabled the daughters to become the coparceners in the ancestral property and giving them the right to sell, transfer their share independently. The 2005 Amendment act also gave the right to the daughters that they could claim their rightful share even if the father had died before the amendment was passed. This change was pivotal ensuring that daughters have the same rights as of the sons in respect to ownership and inheritance. The married women were also granted with the same rights as unmarried women or men. Thus the 2005 amendment represents a turning point in regard to inheritance and ownership of the property by the women, but continued efforts are being made to enhance the awareness and settle practical issues surrounding the inheritance rights for women.  

Judicial Trends and Landmark Cases:

In the case of Rangammal v. Kuppuswami (2011), the Supreme Court of India addressed the issues of decimating the women from inheriting property under traditional laws. The discussion centered around a women’s right to inherit her father’s property right, in spite of local tradition which excluded her from the inheritance. The court ruled that such practices were invalid and violating the constitutional principle of gender equality. It stated that The Hindu Succession Act ensures equal inheritance rights for both men and women. Thus, the decision reinforced that gender-based inequality in regard to the inheritance of property is unconstitutional and ensures that women’s are capable to having equal rights as of men’s.

In the case of Vineeta Sharma v. Rakesh Sharma (2020), theSupreme Court of India stated that the 2005 amendment to the Hindu Succession Act, which gave the daughters the same right of inheritance as of sons in ancestral property. The court ruled that daughters irrespective of their marital status or whether they were before or after of the enactment of the amendment are qualified of the equal coparcenary rights in ancestral property. This judgement ensures that it is applicable even to the daughters whose fathers had passed before the enactment, encouraging equality in the gender rights and settling previous uncertainties. In conclusion it established that daughters are entitled to receive the same rights as of sons.

Impact on Women’s Socioeconomic Position:

The Hindu Succession Act 1956 and its amendment 2005 promotes the equal property rights in respect of inheritance which also impacted their socioeconomic positions. While challenges remain constant these reforms laid a foundation for permitting women in the following ways:

Challenges in Realizing Equal Property Rights:

Though the Hindu Succession Act 1956 and its 2005 amendment were a crucial step towards equality in the inheritance of the property rights, there are some significant challenges which are as follows:

Future Outlook of Gender Equality in Property Rights:

The Hindu Succession Act 1956 gave limited access to women’s right in property but 2005v amendment granted the daughters with the full inheritance of the property rights. In spite of these reforms’ challenges like lack of awareness, social resistance restricting from the full implementations. The following points states the future outlook for women’s property rights.

Conclusion: The Hindu Succession Act 1956 has played a significant role in transferring the women right to inherit the property especially with the 2005 amendment that granted daughters with the equal coparcenary rights. These changes mark a significant milestone towards gender equality, promoting women right in property and challenging long legal proceedings. However, the lack of awareness and the cultural and societal attitudes hinders the full implementations of the act especially in the less developed areas of our country. By this act the married women were granted with the same rights as of the unmarried women and men. The inheritance of the property grants the right to pass it to the future generation. Public awareness is made by various organizations to promotes the women property rights from legal aid camps, workshops and programs. Though the journey towards the gender equality is ongoing. While the legal foundation continued societal change and strong implementations are necessary to ensure that women can fully implement their rights to achieve economic independence and challenges the historical inequality of the inheritance of the property.

Written by Sairindhri Dey, 1st Year BBA-LLB Student  (2024-29)                           
(Top 25 Blogs)Techno India University, West Bengal, BlogCompetition In India 2024 by The Law Literates

In India we have corporate democracy which means certain decisions are to be taken by a simple majority that is shareholders holding 51% of the company’s shares and certain decisions are to be taken by a special majority. The provisions where special resolutions which includealteration of memorandum article or mergers or amalgamation will be required means 75% of the shareholders present in the meeting should vote in favor of the resolution then only the resolution can be carried forward minority shareholders neither have a veto power not have overriding powers. Therefore, the Companies Act 2013 addresses these concerns, providing them with rights and safeguarding the interests of the minority.

Who is a Minority Shareholder?

A minority shareholder refers to an individual or entity that holds a minority or less than a controlling interest in a company. In other words, a minority shareholder owns a portion of the company’s shares that is smaller than 50%. They do not have the power to control or influence major decisions within the company on their own since they do not hold a majority of shares minority shareholders have Limited voting rights in corporate decisions, they may not be able to sway the outcome of major resolutions or appointments without the support of other shareholders.

What is the Rule of Majority?

Rule of majority means the company will be managed by the majority and the shareholders including the management of the company. If they pass any resolution then it is binding on all the members of the company to follow that. Now as the minority shareholders own less than 50% of the total share, they do not have voting rights and they cannot single-handedly elect directors, the majority shareholders take advantage of this and pass the resolution for compulsory acquisition of minority shareholders.

Rights of the Minority Shareholders

1. Right to Information – Under section 101 of the Companie Act,2013 minority shareholders can access relevant and timely information about the company’s financial performance, operations, and strategic plan, as regular updates, on major corporate developments and decisions.

2. Voting rights – Under Section 108 of the Companies Act, 2013, the right to vote on important matters including the election of directors’changes of the company’s article of incorporation protections against dilution of voting power without proper notification. This right is protected under section 108 of the Companies Act (CA),2013.

3. Equal dividend– In the title the right to receive a share of the company’s profit in the form of dividends if declared by the board of directors fair and equal treatment in dividend distribution.

4. Preemptive rights- The right to maintain a proportion ownership stake in the company but have the first opportunity to purchase additional shares before their offer to external parties.

5. Right to sue- the ability to take legal action against the company or its management for action that may harm the interests of minority protection against unfair conduct by the majority shareholders on the management number.

6. Appointment of directors– Section 151 states who can elect a Director. This includes small shareholders whose shares of nominal value are not less than 20,000 rupees. They can nominate and vote for a director’s insurance representation on board protection against the may undermine the ability of minority measure holders to have faire in the director appointments number.

7. Exit option– The right to sell or transfer shares at a fair market value. The ability to exist the investment without facing unfair restrictions.

8. Right to inspect records – Certain corporate records including finance my needs of meeting and other element documents access to information that helps in understanding the company affairs.

9. Fair treatment in marginal and acquisition– The right to receive fair consideration and treatment in the event of acquisitions or other significant corporate transaction protection against a transaction that may be designed to unfairly benefit majority shareholders.

10. Right to share in surplus acid– In the event of liquidation the right to receive a share of the remaining acids after creditors have been satisfied.

OPPRESSION AND MISMANEGMENT

In the case Elder vs. Watson Ltd 1952 (Scotland), the shareholders committed a crime against the minority shareholders. The meaning of oppression is any act in the company that causes harshness and burdensome on the public interest and the minority shareholders if there is any breach of fiduciary duty by the majority shareholders. The negligence in management which causes loss to the shareholders and affects the management or the company is known as mismanagement.

Circumstances that can be classified as Mismanagement: Hindrance of company directors from carrying out their responsibilities, breaches of legal regulations, and non-compliance with the company’s Memorandum of Association (“MOA”) and Articles of Association (“AOA”). Misuse of financial resources.

Case laws: Shanti Prasad Jain Vs. Kalinga Tubes Ltd. There were three shareholders holding shares in equal proportion and equal representation on the board. They agreed mutually that when new shares will be issuedthey will first share it. Later, the company converted from private limited to public limited. Existing shareholders put allegations on the new shareholders that through malafide

intentions they have issued shares. The court held that it was perfectly justified on the part of the majority shareholders to offer new shares as it was not mentioned in the article so, the court cannot interfere.

PROTECTION AGAINST OPPRESSION AND MISMANAGEMENT

Sections 241 and 244 of the Companies Act, 2013 make it clear that the right to complain lies with the “members”, subject to the requirement under Section 244 in respect of holding share capital and the word used in these sections is “members”. The applicability of Section 241 of the Companies Act, 2013 is an equitable jurisdiction that is intended to protect the Minority Shareholders of the company from any Oppression and Mismanagement at the hands of Majority members. In case of operation and mismanagement, they can approach the NCLT (National Company Law Tribunal) its quasi-judicial authority that settlescorporate debates. Section 408 of the Company Act gives control to NCLT to undertake advisory law. Requisition for General Meeting a request to the board of directors to call for a General Meeting by those shareholders who hold 10% of the company’s voting power. Institution of class action suits beneath section 245 of Companies Act 2013 with the NCLT on an application at a request of a hundred members of the company or 5% of the add up to members which even is lesser or in case of an unlimited company any individual of the company owning at least 5% of the company’s issued share capital. A class of action suit is an opportunity given to a group of people who are having common interest to reach out to NCLT

Ways to safeguard the interest of minority shareholders

Protecting the interest of minority shareholders is crucial for maintaining fairness and equity within a company here are several ways to save the rights and interests of minority shareholders:

1. Transport corporate governance– Implement strong corporate governance practices that emphasize the transfer in accountability and fairness and clearly define the roles and responsibilities of the Boards of Directors, committees, and Management.

2. Equal treatment– Ensure that all shareholders regardless of their ownership percentage are treated fairly and equally and avoid any discriminatory practices that may disadvantage minority shareholders.

3. Information transparency– Provide kind and comprehensive information to all shareholders including financial reports, strategic plans, and major decisions. Foster an open communication channel to address concerns and keep minority shareholders informed.

4. Independent Directors– Appoint independent directors to the board who can represent the interests of minority shareholders. Independent Directors can act as a check on management decisions and ensure a balanced perspective.

5. Legal Protections- Comply with relevant laws and regulations related to shareholder rights. Provide a mechanism for a minority shareholderto seek legal redress in case of any unfair treatment or violation of their rights.

6. Exit Strategies– Offer fair and reasonable exit options for minority shareholders such as buyback programs or fair market for their sharesand ensuring that they are exiting on fair terms.

7. Fair Dividend Policies- Establish a clear and fair dividend distribution policy that considers the interests of all shareholders. Avoid that disproportionately benefits majority shareholders.

CASE LAWS

TATA CONSULTANCY SERVICE VS. CRYUS INVESTMENT PVT LTD.

The Shapoorji Pallonji Group (SP Group), under the leadership of Cyrus Mistry, held 18.37% of Tata Sons Limited’s total paid-up share capital. In 2012, Cyrus Mistry was appointed as the Executive Deputy Chairman of Tata Sons for a five-year term. By the year’s end, the Board of Directors elevated Cyrus to the position of Executive Chairman of Tata Sons, effective December 29, 2012, while Ratan Tata took on the role of Chairman Emeritus. On October 24, 2016, the Tata Sons Board of Directors passed a resolution to remove Cyrus from his position as Executive Chairman of the company. Subsequently, Cyrus was ousted from the board of Tata Industries Limited, Tata Consultancy Services Limited, and Tata Teleservices Limited, after separate shareholder votes. The SP Group, Cyrus Investment Ltd., and Sterling Investment Corporation Pvt Ltd. filed a petition under sections 241, 242, and 244 of the Companies Act 2013, making allegations of mismanagement, oppression, and discrimination. The National Company Law Tribunal(NCLT) determined that Cyrus Mistry’s removal as Executive Chairman was unconstitutional and ordered his reinstatement. In January 2020, the Supreme Court upheld the NCLAT order, postponing the verdict until December 17, 2020. The Supreme Court ultimately ruled that the actions of Tata Sons did not constitute persecution or mismanagement of minority shareholders. The judgment favoured the Tata Group. The bench, led by Justice S.A. Bobde along with Justices V. Ramasubramanian and A.S. Bopanna, delivered the ruling. The court concluded that dismissing an individual as a chairman of the company is not a matter under section 241 of the Companies Act unless it can be shown to be oppressive or detrimental. Sections 241 and 242 of the Companies Act of 2013 do not grant restoration powers to the person who was alleged for mismanagement. Consequently, on December 18, 2019, the Supreme Court reversed the order of the National Company Law Appellate Tribunal that had reinstated Cyrus Mistry as the executive chairman of Tata Sons.

CONCLUSION

The Companies Act 2013 provides a strong legal framework to protect the interests of minority shareholders. While the provisions are designed to ensure fairness and transparency, challenges remain that can hinder the effectiveness of these protections. It is crucial for minority shareholders to be aware of their rights and the mechanisms available to them under the Companies Act. By staying informed and engaged, they can better protect their interests and contribute to a more equitable corporate environment. As we move forward in an increasingly complex corporate landscape, the importance of safeguarding minority shareholders cannot be overstated. Whether you are a minority shareholder or a corporate leader, understanding these protections is essential for fostering a fair and transparent business ecosystem.

Submitted By:: Ruchira Deb

ACADEMIC YEAR: First year, BBA.LLB(H)

(Top 25 Blogs) Techno India University, Kolkata, BlogCompetition In India 2024 by The Law Literates

No Refund Of Court Fee When Case Is Settled By Mediation; Refund Only When Settlement Was At Lok Adalat : Supreme Court.

The Supreme Court of India, in a significant ruling, has clarified that court fees are not refundable when a case is settled through mediation. Refund of court fees is only permissible when the settlement occurs at a Lok Adalat, under Section 16 of the Legal Services Authorities Act, 1987.

Key Highlights of the Judgment:

1. Distinction between Mediation and Lok Adalat:
   • Settlements through mediation do not fall under the ambit of Section 16 of the Legal Services Authorities Act, which provides for the refund of court fees in cases settled at Lok Adalats.
   • Lok Adalats operate under a statutory framework and are distinct from mediation processes, which are governed by the Civil Procedure-Mediation Rules.
2. No Blanket Rule for Refund in Mediation:
   The court noted that mediation, while encouraged as an alternative dispute resolution mechanism, does not automatically entitle parties to claim a refund of court fees unless explicitly provided by law.
3. Judicial Interpretation:
   The judgment emphasized that statutory provisions related to refund of court fees must be strictly construed. Since there is no legal provision equating mediation settlements with Lok Adalat awards, the same benefits cannot be extended.

Implications:

• Encourages clarity in legal provisions for court fee refunds.
• Highlights the importance of Lok Adalats as a cost-effective and efficient mechanism for dispute resolution.
• May lead to a push for legislative changes to promote mediation by allowing refunds in such cases as well.

Relevant Paras:

23. The effect of the above being that for the time when the amendment to the MCFA, 1959 granting partial or complete refund, as the case may be, in accordance with Section 43 as amended, the persons
whose matters were settled by way of ADR would not be entitled to 100% refund. Any matter settled under the processes mentioned in Section 89 CPC after the coming into force of the above-extracted amendment, such parties shall receive refund of court fees in its entirety.
24. The total amount of court fees paid by the appellant, in respect of the refund of which the matter has travelled up to this Court was approximately Rs. 5 lakhs. Should we, in the facts and circumstances
of this case grant, in exercise of extraordinary jurisdiction under Article 142 of the Constitution of India, refund of the said amount is a question
we have asked ourselves. Considering the fact that the original dispute was settled amicably and that the amount of court fees involved is not excessive, in the peculiar facts of this case, for it not to be a binding
precedent, we are of the view that the same can be refunded to him.

To read the judgment click here :

SANJEEVKUMAR HARAKCHAND KANKARIYA VERSUS UNION OF INDIA & ORS THE LAW LITERATES

All Rights Reserved (Vaibhav Tomar Adv)

Company Law and the Dynamics of Mergers and Acquisitions: Trends, Challenges, and Case Studies

Introduction to Corporate Law: The Backbone of Corporate Governance

Within the sophisticated fabric of commerce, corporate law stands as a guiding framework for the creation, operation and dissolution of companies. This set of rules is not just a set of rules but an integral part of a set of business activities. By defining corporate rights, responsibilities and liabilities, it ensures that the industry operates within a clear ethical framework. Whether it’s a new startup on the move or a global company managing complex projects, company charter provides the clarity and direction needed to succeed

At its core, corporate law is a set of legal norms and regulations that govern the formation, management and operation of companies. It gives legal personality to businesses and determines how they can be created, operated and dissolved. In India, the Companies Act, 2013, is the cornerstone of corporate governance and compliance. This modern code replaces the original code, passed in 1956, and incorporates global best practices, to meet the evolving needs of the corporate world. From defining the legal structure of a company to defining the responsibilities of directors, the Code is the definitive guide for businesses of all sizes.

A well-organized corporate environment is not automatic—it is the result of small legal systems such as corporate law. The Act plays an important role in ensuring corporate accountability by mandating regular disclosures, accountability and adherence to regulatory standards. It safeguards the interests of stakeholders, including shareholders, creditors and employees, while promoting business and economic growth. By fostering transparency and trust, corporate law is a catalyst for proactive engagement with the company difficult corporate environment.

Mergers and acquisitions (M&As) are one of the most important corporate strategies facilitated by the Companies Act. These variables shape jobs, drive innovation, and drive economic integration. The Companies Act, 2013, provides robust framework for such transactions, including strategic amalgamation, merger process and cross-border mergers

Mergers and Acquisitions (M&A): What You Need to Know In today’s cutthroat business scene, Mergers and Acquisitions (M&A) are game-changing moves that help companies expand, branch out, and boost their market standing. A merger happens when two or more companies join forces to create one entity often to achieve teamwork benefits and save money on a larger scale.

Take the merger of Vodafone India and Idea Cellular, for instance. It led to Vodafone Idea Limited allowing the new company to rule the telecom market. On the flip side, an acquisition means one company takes over another. Tata Steel’s buyout of Corus shows this well. It helped Tata spread its wings and pump up its production ability. People often link the term amalgamation with mergers. It points to companies mixing to form a brand-new entity shifting all assets and debts. These deals are regulated by a strong legal system to make sure everything’s out in the open and to protect the interests of everyone involved. In India, the Companies Act 2013, lays the groundwork for M&A activities in Chapter XV, which covers compromises, arrangements, and mergers. The Act says these deals need to get the green light from the National Company Law Tribunal (NCLT), creditors, and shareholders. For companies listed on the stock exchange, SEBI rules, like the Takeover Code, make sure acquisitions are done, while FEMA guidelines control mergers that cross borders and investments making sure they follow Indian laws.

Mergers and acquisitions are more than just money deals; they help businesses grow into new markets, come up with new ideas, and get ahead of their rivals. With clear legal rules to guide them, M&A deals have become key ways to shape industries and help companies succeed in the long run.

Legal Framework Governing M&A in India

M&A deals in India follow a strong set of laws that make sure everything’s out in the open and looks after everyone involved. The Companies Act 2013 Sections 230–240, lays down the rules for mergers joining companies, and other arrangements. Companies need to get the green light from the National Company Law Tribunal (NCLT), and they also need shareholders and people they owe money to agree. These rules make sure M&A deals happen in a clear way, with fair pricing and protection for smaller investors.

The SEBI (Substantial Acquisition of Shares and Takeovers) Regulations 2011, have a significant impact on listed companies. These rules require open offers to minority shareholders during acquisitions, which helps to ensure fairness and stop hostile takeovers. The Foreign Exchange Management Act (FEMA) provides guidance for cross-border mergers. It controls the flow of funds and makes sure global transactions follow RBI norms. The Competition Commission of India (CCI), under the Competition Act, 2002 also plays a role. It checks that big mergers don’t hurt market competition or create monopolies.

Taxes are a big part of M&A deals. This includes capital gains tax, stamp duty, and GST on certain parts of the transaction. The Income Tax Act offers some tax breaks that companies can use.

Major Legal Hiccups in M&As

Mergers and Acquisitions are big moves, though they tend to bring about a heap of legal issues throwing a wrench in the works. A hefty problem is getting stuck in regulatory delays and red tape. In India, M&A deals have to get the green light from various bigwigs, like the National Company Law Tribunal (NCLT), the Competition Commission of India (CCI), and sometimes the Reserve Bank of India (RBI). Jumping through these hoops can slow things down a lot messing with how long everything takes and whether the deal can go through at all. Like even a small goof in the paperwork or not following the rules to a T can hit the brakes on everything, which is a real headache for everyone with skin in the game.

Figuring out a company’s real worth in terms of assets and debts is real tough. It causes a bunch of arguments a lot of the time. Small-time investors sometimes get the short end of the stick when big deals like mergers or buyouts happen when folks don’t look out for their interests. In India, there are rules in the Companies Act, 2013 that are supposed to let these smaller investors have their voices heard when big decisions come up. Yet, arguing over how much stuff is worth and how much people should get paid happens all the time.

When companies merge across borders, they got to juggle more tough stuff following international laws. Sticking to stuff like the “Foreign Exchange Management Act (FEMA)” and getting in sync with rules from various places is super tricky. You got different laws for things like who owns ideas keeping workers on board, and rules against business bullies making things even more of a headache. Take big mergers for instance, they need the green light from the CCI so things stay fair in the market, but man, this can slow things down or mess up the whole deal.

Wrapping up, M&A deals bring big growth chances but also come with tricky legal stuff to watch out for. You’ve got to stay ahead of the game with rules, money disagreements, and tricky international issues to pull off a smooth winning deal.

Trends in M&A Post-COVID-19

COVID-19 mixed up how M&A works, with more distressed M&A popping up. Companies that were having a rough time cash-wise those in things like hotels and shops, are now on the radar for firms with deeper pockets wanting to snag a bargain on cheap assets. Scooping up these struggling businesses can be a shot at getting bigger, but it’s not all sunshine – you’ve got to untangle debts and jump through legal hoops.

One big shift is the growing interest in buying up “digital and tech-driven acquisitions.” Thanks to the pandemic speeding up digital changes, firms are snapping up tech platforms, software solutions, and up-and-coming digital businesses to boost their internet game and tools. From clothes shops to banks, all sorts of industries are jumping on this bandwagon to stay in the game in a world that’s all about digital first.

After the pandemic, mergers and acquisitions driven by ESG principles have picked up speed. Firms are getting their buyouts in line with goals about the environment how they treat people, and how they run things.

Case Studies: High-Profile M&A Deals in India and Their Legal Implications

Just, the Reliance Industries-Future Group merger deal caught everyone’s attention in 2020. It hit quite a few legal walls. Amazon, which had put some cash into Future Group, wasn’t too happy arguing this whole merger thing went against some sales agreements. They went for an arbitration to slow it all down. Even the Competition Commission of India (CCI) poked around the deal, worried it might mess with competition and not be so great for folks buying stuff. When it all comes down to it, these legal headaches showed how tricky it is when you’ve got a bunch of parties shaking hands and watchdogs keeping an eye out on big company tie-ups.

The Tata Sons-Air India acquisition in 2022 turned into a momentous occasion when Tata snatched back the national carrier after many years. This move came as part of the Indian government’s plan to sell and went through a detailed official procedure. Tata had to get the green light from the National Company Law Tribunal (NCLT) and SEBI so everything was up to code with Indian rules. The government’s decision to sell off played a big role in making the sale happen, which was done according to the Public Sector Enterprises (Disinvestment) Act. It stood out as a rare case of taking a public set-up and selling it to a private business.

In 2023, India saw its biggest bank merger ever with HDFC Bank joining forces with HDFC Ltd. The deal was a big legal deal and had to get the OK from the Reserve Bank of India (RBI) and the Competition Commission of India (CCI). They wanted to make sure this merger wouldn’t mess up the competition in the market.

The Role of Technology in M&A Processes

Tech is getting super important in mergers and acquisitions, with “AI and data analytics” causing a revolution in how folks do their homework on deals and figure out what companies are worth. These smart tools can sift through tons of info fast, spot possible trouble, and nail down what a business is worth. AI programs are pretty good at catching dodgy stuff in money reports legal papers, and contracts that people might miss helping the homework go smoother and cutting down on mistakes. “Digital tools” make it a breeze to deal with the paperwork for regulators like “SEBI” and “NCLT” and keep up with the law, so businesses can hand in what’s needed without a hitch. But then there’s the headache of cybersecurity in M&A because there’s loads of secret business info being swapped. It’s key for everyone to up their game with solid security plans to stop any sneaky data leaks.

M&A’s Future and Company Law’s Part in It

Assessing the future of mergers and acquisitions corporate law plays a key role. The field’s evolving nature hints at more nuanced regulations and sophisticated strategies. The development of fresh policies will provide a framework to facilitate these complex transactions.

Policymakers and lawyers often need to revisit current legislation to foster a more conducive environment for M&A success. As globalization accelerates cross-border mergers are becoming more common. Thus, the legal infrastructure must adapt to handle these international complexities.

Strategic collaborations and deals in the corporate world have a profound influence on market trends and economic forecasts. Company law stands central in guiding these activities with essential oversight and governance mechanisms. It also ensures that all parties involved adhere to ethical standards and regulatory compliance.

M&A’s future will call for continual reform in company law to meet dynamic market demands. Legal professionals must equip themselves to navigate this changing landscape providing invaluable support in this facet of the corporate sector.

So it seems, for the thriving future of M&A, the refinement of company law is crucial.

Lawyers are super important in making sure these deals are on the up and up playing by the rules, and making sure nobody’s stepping on toes, whether it’s here at home or . And let’s not forget things like the Companies Act 2013, what the market watchdogs SEBI say, and the competition peeps with their watchful eyes. They’re all about keeping things fair and making sure everybody knows what’s what.

As all this deal-making jazz keeps changing, we gotta think about how the rules for companies can shake things up to make everything smoother. What do you folks think about how the man in a suit that is, the law, could be a better wingman for merging and buying businesses? Share your two cents! We’re all ears.

Name of the author: Saniya Dinesh Lanjekar

Academic Year: FY General LLB

(Bronz Medalist 🥉 🥉)ABA College of Law, Mumbai University, Blog Competition In India 2024 by The Law Literates 

All Rights Reserved (Vaibhav Tomar Adv)

IMPACT OF CYBER FRAUD ON INDIA’S DIGITAL ECONOMY
INTRODUCTION:
India has had incredible success with its digital revolution. With millions of internet users, more than a billion mobile connections, and the government’s strong programs like Digital India, the nation has embraced digital technology on a never-before-seen scale. Payments have been transformed by services like UPI (Unified Payments Interface), which make transactions easy, quick, and available from anywhere in the nation. Digital platform usage has improved financial inclusion, promoted innovation, and accelerated economic growth. There is an endless possibility for economic gain as companies and individuals continue to migrate to the digital economy. But as a result of this quick expansion, the dangers of cybercrime have also increased. Targeting people, companies, and even governmental organizations, cybercriminals are evolving their strategies. The sustainability and integrity of India’s digital economy are seriously threatened by this increase in cybercrime.
Cyber fraud is causing increasing financial losses and eroding the trust that is the foundation of digital transactions.
The increase in identity theft, phishing attempts, online frauds, and hacking incidents has demonstrated how important it is to secure the digital infrastructure. Addressing cyber fraud, the negative aspect of this technological revolution, is crucial as India establishes itself as a global leader in digital innovation. This blog examines the various ways that cyber fraud affects India’s digital economy, examining its financial and legal repercussions, highlighting its main obstacles, and providing solutions to
build a more robust and safe digital future.

DIGITAL ECONOMY BEING THE BACKBONE OF INDIA’S PROGRESS:
India’s digital economy has grown at an astonishing pace, driven by technological advancements, well-designed government initiatives, and enthusiastic participation from consumers and businesses. These factors have laid a robust foundation for economic transformation. However, the evolution of the digital landscape has brought with it increasing threats, particularly in the realm of cyber fraud, underscoring the urgent need for comprehensive security
measures. A key pillar of India’s digital economy is the Unified Payments Interface (UPI), introduced by the National Payments Corporation of India (NPCI) in 2016. UPI revolutionized financial transactions by enabling seamless, real-time transfers between bank accounts. By 2023, UPI had achieved an extraordinary milestone of handling over 10 billion monthly transactions, with an annual transaction value exceeding ₹140 trillion. This success can be attributed to its user-friendly design, compatibility with various bank accounts, and minimal or zero transaction costs, making it accessible to users across the spectrum. Millions now prefer UPI over traditional banking methods such as RTGS, IMPS, and NEFT due to its simplicity and efficiency. Furthermore, UPI has significantly advanced India’s transition
toward a cashless economy, a move that enhances convenience, security, and efficiency by reducing dependence on physical currency. However, as UPI’s adoption grows, so do threats such as phishing scams and fraudulent payment requests, which risk eroding public confidence in this transformative payment system. E-commerce and start-ups form another vital component of India’s digital economy, experiencing unprecedented growth. Online shopping platforms like Flipkart, Amazon, and Myntra have revolutionized consumer purchasing habits, fueled by faster internet, cashless payment systems, and widespread smartphone adoption. These platforms
cater to both urban and rural markets, offering a diverse range of products and services. Simultaneously, India’s start- up ecosystem has flourished across sectors like fintech, edtech, healthtech, and agritech. Companies such as Paytm,
PhonePe, and Byju’s have disrupted traditional industries, fostered innovation and job creation. With over 50,000 start-ups, India became the world’s third-largest start-up hub in 2023. This ecosystem significantly contributes to India’s digital transformation, particularly in areas such as digital wallets, peer-to-peer lending, and online education.
The India Brand Equity Foundation (IBEF) projects that the digital economy will reach $1 trillion by 2025, driven by improved infrastructure, widespread internet and mobile penetration, and growing consumer trust. However, this growth is not without challenges. E-commerce platforms face cybersecurity threats such as data breaches, fraudulent product listings, and payment fraud. Users are increasingly vulnerable to phishing scams, credit card fraud, and
identity theft, which can harm businesses’ reputations, reduce consumer trust, and lead to financial and legal consequences. Government-led digitization initiatives have played a crucial role in accelerating digital adoption and enhancing
public service delivery. Aadhaar, India’s biometric-based digital identification system, has been transformative, issuing unique 12-digit IDs to over 95% of adults by 2023. Aadhaar-based services have simplified processes in sectors like welfare distribution, subsidy payments, and direct benefit transfers (DBT). The DBT system, which
channels subsidies and other payments directly to beneficiaries’ bank accounts, has significantly reduced corruption and leakages, saving over ₹2 lakh crore in 2022 alone. Other e-Government programs, such as e-Courts and Digi Locker, have further streamlined administrative processes. Digi Locker provides a secure cloud platform for storing official documents like PAN cards and educational certificates, eliminating the need for physical copies. The e-Courts
initiative digitizes judicial records, enhancing transparency and expediting case resolution.
Despite these advancements, government digitization efforts face cybersecurity risks. The 2018 Aadhaar data leak controversy highlighted vulnerabilities in personal data security and privacy. As government databases increasingly store sensitive personal information, the risk of cyberattacks, data breaches, and identity theft grows. Strengthening
cybersecurity frameworks is imperative to safeguard this data and maintain public trust in digital initiatives. In conclusion, India’s digital economy is a dynamic force driving economic growth and societal transformation. While its expansion presents immense opportunities, addressing the accompanying cybersecurity challenges is essential to ensure sustainable progress and public trust in the digital ecosystem.

TYPES OF CYBER FRAUDS IN INDIA:

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COMPARATIVE ANALYSIS OF ARBITRATION
LAWS: ENHANCING INDIA’S LEGAL FRAMEWORK
THROUGH GLOBAL PRACTICES

ABSTRACT
This study presents a comparative analysis of domestic and international arbitration law with
specific focus on Indian legal framework. Since some national laws are viewed as antiquated, having narrowly focused subject topics, or mistakenly equating arbitration with courtroom litigation, national laws have been observed with great skepticism for regulating both domestic and international arbitration collectively. This study examines key similarities and dissimilarities
within these procedural rules varying across the world. Certain regulations strive to guarantee
inclusivity with contemporary advancements, they mostly focus on domestic arbitration and fall
short of encompassing cross-border agreements. As a result, in cases of international arbitration
involving parties with diverse national laws, cultures, and languages there is considerable freedom
to independently determine the venue, norms of conduct, and methods of enforcement, facilitating
the easy reaching of a consensus. Through a comprehensive review of statutes, judicial precedents
and scholarly articles, this paper analyses the procedural nuances with intervening encumbrances
and imparts practical strategies from successful international arbitration models to make objective
amendments to the Indian arbitration framework.

INTRODUCTION
The worldwide integration of trade through cross-border transactions exacts a necessity for an
expeditiously effective mechanism to cater the commercial disputes, and prevent stagnating
hindrance to their reputation, relations as well as the economy. Arbitration as a resolution had been
around as a successful alternative for a long time. Though it has ancient roots, in Indian territory
it has mapped its existence from the end of the nineteenth century, when it was given legal
recognition under the Arbitration Act, 1899 followed by subsequent amended acts. The dart of
globalization in 1991 compelled the legislature to enact a determined law called The Arbitration
and Conciliation Act,1996 with an objective to attract higher foreign investment while building an
ease of business environment. The dictionary meaning of ‘arbitration’ is the process of solving an argument between people by assisting in reaching an acceptable outcome, which legally means parties arbitrating to settle a dispute. The 1996 Act, has been crafted on the lines of UNCITRAL3 model law which provides guidance to States enacting an arbitration law, while parties to an ad hoc arbitration4 have been
provided a separate set of laws5. Some countries like Hungary and Canada when adopting the Model Law omitted the criterion of internationality whereas other countries like Tunisia akin to France added it as a default criterion. While other countries provided a more relaxed approach such as Hong Kong offered an option of submitting their dispute to domestic or international arbitration law. The Indian act, also deals with both domestic arbitration and international
arbitration under Part I and II, respectively. This essay traces a twofold comparison between Indian
laws on national and international arbitration, along with contrasting it with international laws.
Before diving into the comparative debate, it is imperative to objectively analyze the distinguished
procedural norms for domestic and international arbitration. National laws have faced great
skepticism for regulating international arbitration and domestic arbitration collectively due to
being outdated, limited subject matters, or fallacious to equate arbitration with courtroom
litigation.6 Even modish laws with comprehensiveness limit themselves primarily with domestic arbitration failing to include cross-border agreements. In case of international arbitration where
parties are from different culture, language and national laws thereby, ample liberty is conferred
to them to autonomously decide the seat, conduct and enforcement rules, to reach a consensus with
ease. Hence, international arbitration provides a platform with relaxed norms transcending
domestic limitations.
Given the drastic wearisome history of Indian courts choked with backlog and pendency, a finer,
faster and fairer alternative was the need for national growth. In the trade sector, disputes are bound
to arise between parties though the adjudication process may vary as per regionality, i.e. national
and international stage. There is a significant distinction among reliefs, rules, enforcement of
awards and other procedures concerning domestic and international arbitration. With reference to
Indian laws, even in the presence of a specific act, and subsequent amendments, there are
shortcomings that demarcate a line between adoption of Indian domestic and international
arbitration. Efforts shall be made towards codified restriction of judicial intervention and
eradication of pendency from arbitration to make international trade and arbitration preferable over
domestic hassle.

COMPARING INDIAN LAWS ON DOMESTIC AND INTERNATIONAL ARBITRATION
Analogous to cause of action under civil jurisdiction, Indian arbitration contains disputes7
categorized as ‘have arisen’ or ‘may arise’. However, many countries refuse to consider potential
disputes, but by means of higher flexible features of international arbitration rules, the concerned
party can opt for benefitting norms of any other national or institutional set of rules surpassing
domestic restrictions. Parties engaged at international level are conferred with the autonomy to
decide their own procedural rules as per suitability of any law to their subject matter. Where
domestic arbitration is bound to be decided by territorial substantive law8 international cases are
liberated to be decided on a different substantive than their lex arbitri and lex fori. In case of
absence of prescribed law, the tribunal is mandated to apply appropriate laws as per the terms of
contract and trade usages.
A rule concerning a fixed time limit of 12 months to conclude the proceedings after completion of
pleadings was specifically mandated for domestic arbitration however the court exempted
international parties to be confined by any strict boundations, and were to merely oblige by the
same.9 Evidently, the courts as well as arbitration tribunals endeavour to secure the liberal sanctity
of international parties to opt for convenient procedural rules from all over the world. The lex
arbitri may differ from lex fori as well as the laws concerning the original contract owing to the
fact that a different nation can be opted for recognition and enforcement of awards. Similarly, the
appointment of arbitrators varies in both types of arbitration. In domestic arbitration, arbitrators
are retired judges, advocates or any other person while the institutional arbitration ICA lists 1200
arbitrators from which the parties are made to choose. International arbitration, however, provides
for an open debating field which is preferable since such relaxation in terms of choosing arbitrators
who are likely experts in the field encompassing the dispute. These relaxations intend to provide
a more neutral, favorable set of rules with higher expertise arbitrators.
Indian courts have been notoriously known for long delays, pendency of cases and exceeding their
judicial powers, thus the legislature expressly bars judicial intervention except in some specific
circumstances.10 Involvement of the court, as explicitly specified in part I of the Act, is evidential
through several rights such as the right to seek judicial assistance in appointment of arbitrators11  right to interim relief12, assistance of court in taking evidence13 and setting aside an arbitral
award14. Although Part I deals with domestic arbitration, however, these reliefs are exempted for
application in international cases as well.
Under Interim relief by court (S.9), the act does not strictly define these residuary powers led to
arbitrary use in wake of curative objectives, thus prompting court’s interference. Applicability of
this section in international context has been a debatable contention. Initially, S.2(2) was held to
be an inclusive definition, excluding applicability on any arbitration not held in India15. It shall be
incongruous as to the procedural conduct, where neither arbitral nor judicial proceedings were to
be in India but the grant of a protective recourse16. This issue, however, was clarified stating that
the grant of relief under S.9 shall be extended to international commercial arbitration having a
foreign seat governed by a foreign law, but subject to two conditions17, (a) parties shall not agree
contrarily, and/or (b) nation of enforcement of arbitral award, shall be a signatory to New York
Convention or Geneva Convention and be recognized by India18. The rationale behind conferring
a supervisory jurisdiction to India likely can be to reflect liberal Indian arbitration rules to
increment foreign attraction towards India as a preferable place for arbitral reliefs and remedies.
It is learned that arbitration is a one-way road, where if the parties agreed to resort to it cannot step
back. In its furtherance, the arbitral award granted by the arbitrators is final and binding, which
generally has no remedy unlike a civil ruling. Although domestic arbitration provides limited
grounds of appeal, there are no such remedial features in international arbitration since it engages
a variety of laws to reach a decision, which contributes to the efficient factor, and its appeal shall
imply attacking it.
The supervisory jurisdiction of the court extends to its role in setting aside the award, when parties
seek to challenge the award although under limited grounds only.

19 Award in conflict with public policy of India20, is one of the prominent grounds under which maximum awards are challenged, thus impacting the efficacy of arbitration. This doctrine of patent illegality21 builds a room for higher judicial intervention. Though attempts have been made to limit this vast concept by means of amendments22 and judicial precedents, yet its dynamic nature allows judicial interpretation
based on national law in relation to the impugned award. However, the court explicits its non-
application to international awards.23
The consequence of this domestic issue results in an outcome affecting internationally as well.
Several domestic companies who lose arbitral awards to foreign companies challenge the same in
Indian courts benefiting from the indefiniteness of the aforesaid ground, causing a disinclination
among foreign investors to contract with Indian companies. This practice24 along with arbitrary
and excessive intervention by judiciary ultimately affects foreign investment and economic growth
as well as tarnishes the image of Indian arbitration as an advantageous choice for international
commercial arbitration.
OBJECTIVES OF INDIAN ADR IN CONTRAST WITH OTHER MAJOR ADR SYSTEMS
IN THE WORLD
The Indian arbitration act has a stark difference from the United Kingdom arbitration act as well
with the main values of the Indian arbitration which focus on to consolidate and amend the
domestic, international and commercial arbitration which also includes the enforcement of foreign
awards.25 The Indian approach is more on remedy and improvement than expedience and
availability. This marks the very difference between the approach carried by both the nations, and
its ultimate impact on India failing to be a more preferable choice, since locus standi for opting
arbitration is expediency along with efficacious remedial provisions on the sidelines.
The Arbitration Act of the United Kingdom was declared as “probably the most radical piece of
legislation”26 because it focuses on making the act valuable and differs from adversarial court
proceedings contrasting the judicial way of resolution. These objectives that proved radical in the
20th century are seen as valuable and indispensable in today’s legal field. This legislation being
logical and clear focuses on ‘party autonomy’ and ‘judicial non-intervention’ and manages to
safeguard necessary public interest and is considered whole and advanced due to it being modelled
after UNCITRAL Model Law. Since these are the central themes of the statues, they make sure to
uphold these objectives to make ADR a fair doctrinal foundation for dispute resolution.
SAM and CO write in their blog appraising the 2019 Amendment Act that the 2019 Amendment is
intended to fix the loopholes created by the Arbitration and Conciliation (Amendment) Act 2015
and is a step towards making India an arbitration hub.27 The five most preferred seats for arbitration
are London, Singapore, Hong Kong, Paris and Geneva. ‘Greater support for arbitration by local
courts and judiciary’, ‘increased neutrality and impartiality of the local legal system’, and ‘better
track record in enforcing agreements to arbitrate and arbitral awards’ are the key adaptations that
would make other arbitral seats more attractive.
Indian international arbitration system has a rule of discontinuing the proceedings when the parties
fail to take any steps for a period exceeding six consecutive months or such other period as the
parties may agree with the approval of the Tribunal where as for the LCIA the deadline for response
is 28 days and for the SIAC it is 14 days.28 This is more likely to respect the time of the parties,
making the proceeding swift and not cumbersome. The Indian legislative system through the 2019
amendment attempted to analyze the foreign regulations and incorporate the Indian arbitration
system with the objectives, methods and statutes of LCIA, SCIA, etc. in order to modernize
approach to arbitration and emphasize on the acceptability of the method worldwide which in the
long run will affect Indian trade system and economy since a more dynamic, relaxed and expedited
session would likely attract the attention of foreign investors and business owners.
Companies investing in India are more likely to do so if we invest in following a more universally
acknowledged form of arbitration which emphasizes us to follow the main objective of arbitration
that is limitation on judicial intervention and expediency. The parties are more likely to get lost
and delayed in the procedure owing to higher number of case pendency. According to the National
Judicial data grid, the pendency stats is 10914318 for civil cases and 33331861 for criminal cases.29
The average pendency in any case brought to any of the high courts can go up-to three years and
one month, and can go up-to a staggering 6 years in case of any subordinate court. These drawbacks
will discourage foreign trade and investment in Indian businesses and companies. This should be
the focal point of improvement in order to encourage better global relations and trade between countries and organizations.

CONCLUSION
The comparison of national procedural rules reveals ongoing efforts to enhance its definiteness
with precision, yet there is scope of arbitrariness under non-specific grounds to meet its ultimate
objective. It is critical to recognize the court’s authority to intervene as a supervisor is crucial for
justice and to reconcile conflicting perspectives, however arbitration as an expedient alternative
shall be maintained by ensuring a strict limit to the judicial intervention. The global approach
would have an impact on India’s economy and trading system over time, and thus, a livelier, laid-
back, and quick resolution under arbitration would fairly draw in foreign investors and company
owners. While India strives to work on an inclusive, liberal and defined legislative framework,
there is potential for advancement of laws in compliance with international arbitration standards.
Emulating amendments from other inspirational arbitration models can enhance India’s ambition
as a preferred arbitration destination and contribute in achieving its objective to attract foreign
investment through a secured legal framework

Author: Kavya Aggarwal1
Co-Author: Simran Kar2  (2nd year student, University of Delhi.) Silver Medalist 🥈 Blog Competition In India 2024 by The Law Literates 

All Rights Reserved (Vaibhav Tomar Adv)

WAKF BOARDS: GUARDIANS OF HERITAGE OR FACING A CRISIS?

INTRODUCTION

The word “Wakf” literally means detention, stoppage, or tying up of something. According to the law, wakf refers to the donation of a property by its original owner for religious purposes. The property given by the original owner is intended for charitable purposes. This means that a person belonging to the faith of Mussalmans alienates themselves from their property in the name of charity. The concept of Wakf was developed in Islamic law and was not practiced in Arabia before the advent of Islam. This concept is not mentioned in the Quran. According to Sayed Ameer Ali, it is “the most important form of Muslim law, for it is interwoven with the entire religious life and social economy of Muslims.” One of the Hadiths of Prophet Mohammad states: “A person went to the Prophet and said that he had property; what should he do with it? The Prophet said, ‘Give it in the name of Allah and let its receipts go to charity.”

According to Section 2(1) of The Mussalman Wakf Validating Act, 1913, wakf means “the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious, or charitable.” A wakf can be created through a written deed or orally. If the wakf is documented through a written deed, it is called a Wakfnama. Properties donated by Muslims under wakf are governed by a system of Waqf Boards, which exist at both state and central levels. State-level Waqf Boards appoint caretakers for these donated properties, manage revenue details, and oversee their administration, while the Central Waqf Board provides guidance to all State Waqf Boards.

The Waqf Board is considered a juristic person with the authority to manage properties donated by Muslims. However, it is not considered the owner of the property; the owner is deemed to be God. The Waqf Board, as a legal entity, represents itself in legal matters if sued. It holds the right to acquire, sell, transfer, and manage property. It is also empowered to administer wakf properties and take legal action for the recovery of any such properties. The board may transfer, sell, donate, gift, exchange, mortgage, or lease the property. However, decisions regarding selling, mortgaging, exchanging, or donating the property can only be made with the consent of two or more members. The property given in Waqf, its owner is considered to be the God and the status of the property cannot be reversed. The Waqf properties are governed by the Waqf Act of 1955. A Survey Commissioner is appointed to list out the properties given for Waqf, investigations, looks after the summon witness and looks after the public documents. In 2013, an amendment was brought which restricted for further sale, exchange or transfer of properties given in Waqf.

The Waqf Amendment Bill of 2024

On 8th August 2024, the Parliament passed the Waqf Amendment Bill during the winter session. This bill revised the Waqf Act of 1955 concerning the administration of Waqf Boards, including the inclusion of women in the boards. The bill was first introduced in the Lok Sabha and then underwent detailed examination by the Joint Parliamentary Committee. The bill has sparked significant debates among lawmakers, controversies, and challenges to constitutional liberties, while also raising concerns about the overreach of bureaucratic powers.

The main changes to the Waqf Act include renaming it as the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995. The proposal to change the name of the legislation indicates the government’s intent to modernize the management of Waqf properties. The amendment introduced several new provisions regarding the ownership and governance of properties designated as Waqf. It specifies that only legally verified and lawful properties can be designated as Waqf.

The bill also stipulates that any government property designated as Waqf, either before or after the commencement of this act, will no longer be recognized as Waqf. Additionally, disputes regarding whether a property is government-owned or a Waqf property will now be dealt by the District Collector instead of Waqf Tribunals.

The amendment further removes the words “Waqf by use”, which previously allowed mosques and graveyards to be designated as Waqf properties through simple documentation. Under the new provisions, properties without proper legal documentation will not be recognized as Waqf. This change challenges for many historical mosques and graveyards in proving their authenticity. The bill mandates that official Waqfnamas are now required to recognize properties as Waqf.

Moreover, the bill alters the composition of Waqf Boards by adding two non-Muslim members and allowing the appointment of non-Muslim Chief Executive Officers to the Boards.

Relevant judgements

In the case of S.V Cheriyakoya Thangal v. S.V P Pookoya & Ors, The dispute concerns the right to Mutawalliship(custodianship of a Waqf) and Sheikhship over a Waqf property. The matter originated in 1987 with a civil suit (O.S. No.5/1987) filed in the Munsif Court, Androth, and has since seen multiple rounds of litigation. The Waqf Board ruled in favor of the appellant, declaring him as Mutawalli.Respondents challenged this decision by filing an application under Section 83 of the Waqf Act, 1995, before the Waqf Tribunal, which upheld the Waqf Board’s decision. The High Court, however, reversed the Waqf Tribunal’s decision, ruling that the Waqf Board lacked jurisdiction and remanded the matter to the Waqf Tribunal for fresh adjudication. The issues arose before this court were whether the Waqf Board has jurisdiction to decide disputes related to Mutawalliship? and Whether the Waqf Tribunal has exclusive jurisdiction in such matters? The judgement laid down by this court was that the Waqf Board was competent to decide the matter under Section 32(2)(g) of the Waqf Act, 1995, as the definition of ‘Mutawalli’ under Section 3(i) falls within its purview. The Court emphasized that the Waqf Tribunal’s role is adjudicatory, akin to that of a civil court, while the Waqf Board has administrative and supervisory powers. The High Court’s decision was set aside on the grounds that it erroneously limited the Waqf Board’s jurisdiction. The case was remitted to the High Court for a decision on the merits, excluding the issue of jurisdiction, which was conclusively determined in favour of the Waqf Board. The Supreme Court urged the High Court to expedite the proceedings, given the prolonged pendency of the case since 1987.

Simultaneously, in the case of Salem Muslim Burial Ground Protection Committee v. State of Tamil Nadu,  the dispute concerns a piece of land in Salem, previously alleged to be a Muslim burial ground. The land was recorded as a burial ground (kabristan) but has not been used as such since 1867, when it was closed due to health reasons. Various claimants, including private individuals and the Salem Muslim Burial Ground Protection Committee, asserted ownership or usage rights over the land. Government authorities and tribunals repeatedly dismissed claims of private ownership and ruled the land to be communal in nature. The Committee argued the land was Waqf property based on a 1959 notification under the Waqf Act, while private claimants sought recognition of rights under the Tamil Nadu Estate Abolition Act. The issues laid down before this court were whether the land constitutes a Waqf property under Muslim law through dedication or long usage? Whether the land can be alienated or assigned to private individuals under Section 19A of the Tamil Nadu Estate Abolition Act? And whether The validity of the 1959 notification declaring the land as Waqf property? The judgement laid down in this case was that the Hon’ble Supreme Court dismissed the appeals filed by the Salem Muslim Burial Ground Protection Committee, ruling that the disputed land is not Waqf property. It held that there was no evidence of dedication or long-term use as a burial ground, and the 1959 Waqf notification was invalid due to non-compliance with statutory procedures. The Court upheld private claims under Section 19A of the Tamil Nadu Estate Abolition Act, noting that the land had not been used for burial purposes since 1867. Additionally, the Committee was barred from challenging earlier decisions due to its participation in subsequent proceedings without objection. The appeals were dismissed with no costs imposed.

In the case of Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla & Ors, it involved the classification of properties as Waqf under the Waqf Act, 1995, or as public trusts under the Bombay Public Trust Act, 1950. The Maharashtra State Board of Wakfs published a list of Waqfs in 2003, which included several properties registered as public trusts under the 1950 Act. Various Muslim trusts challenged the inclusion of their properties in the Waqf list, arguing they were not Waqf properties but public trusts created for charitable purposes. The High Court found discrepancies in the survey process, including failure to differentiate Sunni and Shia Waqfs and lack of evidence for certain properties being classified as Waqf. The issues laid down before the court were whether the inclusion of properties registered under the Bombay Public Trust Act in the Waqf list was valid? And Whether the Waqf Board was properly constituted and whether the survey of Waqf properties complied with the Waqf Act? The Hon’ble Supreme court in the present case dismissed the appeals by the Maharashtra State Board of Wakfs, upholding the High Court’s decision. It emphasized the importance of evidence, procedural compliance, and stakeholder participation in determining the nature of properties as Waqfs or public trusts. A resurvey was ordered to rectify the procedural and substantive flaws in the earlier process.

Relying in the case of Waqf Board, Rajasthan v. Jindal Saw Limited & Ors, Jindal Saw Ltd. was granted a mining lease for an area in Bhilwara, Rajasthan, which included KhasraNo. 6731. The Rajasthan Waqf Board claimed that a religious structure, referred to as the “Qalandari Masjid,” existed within the leased land. The Waqf Board argued that mining activities could not be conducted at this location, as the structure was a waqf property. An Expert Committee appointed by the High Court found that the structure was dilapidated, not used for religious purposes, and lacked archaeological or historical significance. The issues laid down before this Hon’ble court were whether the structure on Khasra No. 6731 was a mosque or waqf property that warranted protection? And whether mining activities could be carried out in the leased area without violating religious or legal rights? The Hon’ble Supreme court in the present case dismissed the appeal by the Waqf Board, holding that the alleged mosque was located on Khasra No. 931, not Khasra No. 6731 (the leased area). There was no evidence to prove the structure was ever used as a mosque or religious site. A dilapidated wall and platform could not qualify as a waqf property under the Waqf Act, 1995. Expert reports confirmed the absence of religious or historical importance. Therefore, the court affirmed the High Court’s decision to allow mining activities on the leased land.

In the case of Dara Prakash Rao v. The State of Andhra Pradesh, the petitioners were tenants of 33.22 acres of Waqf land belonging to Mohiddinia Masjid, DamaramaduguVillage, SPSR Nellore District, since 1970, cultivating the land and paying lease amounts. Lease deeds were executed up to 2006, after which they continued as tenants without formal agreements, paying Rs. 20,000 per acre annually to the Masjid’s Managing Committee. The Waqf Board issued an auction notice on September 21, 2023, for leasehold rights to the land, proposing an auction on September 28, 2023. The petitioners challenged the auction, claiming it violated Article 300-A of the Constitution and Sections 32 and 56 of the Waqf Act, 1995, along with the Waqf Properties Lease Rules, 2014.The issues laid down before the court were whether the auction notice for leasing Waqf property issued by a competent authority as per the Waqf Act, 1995, and the Rules? And did the petitioners have a valid legal right to challenge the auction process? The Andhra Pradesh High court in the present case dismissed the petition, finding no illegality in the auction process and held that the Managing Committee of the Masjid was authorized by the Waqf Administrator to conduct the auction. The petitioners’ leases had expired long ago, and they had no legal right to continue occupying the land. The petitioners failed to challenge the Waqf Administrator’s proceedings authorizing the auction, making their petition untenable. The auction process complied with Rule 4 of the Waqf Properties Lease Rules, 2014, and the petitioners failed to establish a violation of their legal rights.

CONCLUSION

To conclude, Waqf remains a cornerstone of socio-religious welfare for the Muslim community, embodying both spiritual significance and socio-economic potential. However, the institution must adapt to contemporary legal and societal standards to fulfill its purpose effectively. Ensuring accountability, transparency, and proper governance, while respecting religious doctrines, is essential to maintaining the relevance and integrity of Waqf in a rapidly changing world. Through the aforesaid judgements, if Waqf board guidelines are followed properly then it can be more beneficial to the Muslim community.

NAME OF AUTHOR: Arpeeta Dash & Anusuya Roy Chowdhury (Gold Medalist 🥇🥇First Postion in India) Blog Competition 2024 By The Law Literates
ACADEMIC YEAR: 2023-28 

NAME OF COLLEGE: Symbiosis Law School, Nagpur

All Rights Reserved (Vaibhav Tomar)

ANALYSIS OF ILLEGAL DETENTION IN STATE

The word “detention” means when a person is reserved or kept in a place or prison for a period of time.  Illegal detention means where a person is kept in a prison without any lawful reason. There is an unlawful deprivation of the liberty of the person by arresting the individual without any lawful reason or suspicion. Whereas if we compare the two terms , detention and arrest there is a difference between the two , detention is not like such a grave act like that of arrest. In cases of detention, there is lesser burden of proof involved and it is given for a short period of time than of arrest. In cases of detention, police used to detain the person if he feels that there is a lawful reason to detain him and can investigate the matter for the same. If a person is detained by the police, then they can inquire for any kind of weapons which the person is having and can ask if the person knows any such information regarding the crime or the omission which is going to happen or happened.

Inter State Arrest:

According to the section 79 of the Code of Criminal Procedure it deals with the matters of interstate arrests or arrest done outside the local jurisdiction of the police. According to the section 79 of the CRPC “(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it 49 for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. (2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant. (3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it.”

Also according to the section 48 of the Code of Criminal Procedure it says, “A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.” This section is highly a debated as the word “pursue” is involved. The debate involves two around two points that whether the person is arrested from another state for the physical pursuit or whether the person is located in any other states or the accused is not cooperating with the investigators and that’s the reason police need to go beyond their jurisdiction to arrest that accused.

Also according to the article 22 of the Indian Constitution, “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”The time 24 hours which is given for producing the individual before the magistrate excludes the time taken in the journey. No individual can be kept in the prison beyond the time said by the magistrate. This is also mentioned in the sections 56 & 57 of the CRPC.

Also, according to the article 21 of the Indian Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” So, if an individual is detained without any lawful reason, then it is said to be his fundamental right to life and liberty gets infringed.

There has been many cases where the police has arrested the person from a wrong location as argued by the accused and has framed charges based on any other location. Thus, leading to illegal detention. It’s not only violating section 41 of CrPCbut also violating the fundamental principles of Article 22 embodied in the Indian constitution.

Emphasizing on the case of DK Basu v State of West Bengal, the court laid down important guidelines which is to be taken care of while making arrests. “They are:

Moreover, in the case of Sandeep Kumar v The State (Govt of NCT Delhi), this case came out with the proper guidelines regarding the interstate arrest cases. “It is said that before doing arrest from outside the jurisdiction the police officer needs to take permission from his superior in written or through tele communication to visit some other states or area to arrest the accused which not comes under the authority of their jurisdiction. Further, to do such arrests he should mention the reasons which caused him arrest the person from any other location which does not falls in their jurisdiction and have to submit it in the written format and needs to submit in the court to make the endeavour except in the emergent cases. Before the police arrest the accused from some other area which does not falls under their jurisdiction he needs to inform the local police station which comes under that area. These above guidelines are need to be followed by the police officers if the case is of urgent in nature”.

In the case of State of Punjab v Ajaib Singh, “The accusedwas arrested at a location far removed from the site of the alleged offence without prior coordination with the relevant local authorities. The issue laid down before the court was whether the actions of police considered to be arbitrary or justified. The Hon’ble Supreme court of India ruled that such arrests violated territorial jurisdiction requirements. The failure to inform the local magistrate or police was a critical procedural lapse. The court nullified the arrest, reprimanded the officers involved, and directed administrative oversight to prevent future violations and also emphasized that arresting officers must act within their jurisdiction unless exceptional circumstances justify otherwise.”

In the case of Rasiklal Dalpatram Thakkar v State of Gujarat, “The police arrested the accused from a location outside their jurisdiction without informing the local magistrate or police. This arrest occurred despite the alleged crime being committed in another location under a different police station’s jurisdiction. The issue laid down before the court was whether the arrest was legal and complied with the sections of 48 and 57 of CrPC which mandates jurisdictional coordination. The Supreme court observed that arrests outside local jurisdiction must involve communication with the concerned magistrate or police officer of that particular jurisdiction. The arrest violated the sections of 48 and 57 of CrPC. The court also emphasized on the importance of notifying the nearest magistrate in inter-jurisdictional arrests​.”

Moreover, in the case of Joginder Kumar v state of UP, “Joginder Kumar was arbitrarily arrested from his residence, unrelated to the actual location of the alleged offense. The police failed to justify the arrest location and did not document it in official records. Two issues were laid down before the court. They were, did the arrest adhere to the procedural safeguards under CrPC Sections 50 and 57 and was the arrest arbitrary and in violation of Articles 21 and 22. The Supreme Court held that arrests should not be a routine exercise of police powers. The arresting officer must justify the necessity and location of the arrest. The arrest was deemed unlawful and disciplinary action was given to the police officers.”

In the case of Satvinder Kaur v state (Govt. of NCT of Delhi), “The accused was arrested from a location outside the crime’s jurisdiction. The police claimed logistical difficulties but failed to inform the concerned authorities. The issues laidbefore the court were whether the arrest was lawful and whether there was no violation of jurisdictional procedures. The court ruled that while the investigation can span multiple jurisdictions, arrests must adhere to procedural norms, including informing the relevant magistrate or local police and also quashed the arrest and directed better coordination between police jurisdictions.”  

In the case of Boya Nallabothulla v Circle Inspector of Police, “The police arrested the accused from a location different from the alleged crime scene without proper procedural compliance. he arrest was executed in a distant area under a different police jurisdiction, violating procedural safeguards under the sections 48 and 57 of CrPC. The petitioner claimed that the arrest was baseless and that the police did not inform the nearest magistrate or local police authorities at the place of arrest. The issues laid before the court were, whether the police violated sections 48 and 57 of CrPC by arresting the petitioner from a location outside their jurisdiction and whether the arrest violated the accused’s fundamental rights under Articles 21 and 22 of constitution of India. The court in the present case found the arrest was made without informing the local magistrate or police authorities, as required under the CrPC and declared it to be violative of sections 48 and 57. The court ordered compensation to the petitioner for the wrongful arrest and detention, citing the state’s responsibility to ensure proper conduct by its officials. The court also directed departmental action against the police officers for failing to comply with the provisions of CrPC and to violate the constitutional safeguard of the accused.”

Citing the case of Arnesh Kumar v State of Bihar, “The accused was arrested in a location unrelated to the alleged domestic violence offense under Section 498A of the IPC. The arresting officers failed to provide written justification for the arrest. The issues laid before the court were was the arrest justified under state and did the police violate the procedural safeguards. The Apex court observed that arrests outside jurisdiction require explicit documentation and directed disciplinary action against the officers.”

The Committee headed by retired Justice SP Garg, had given the following detailed suggestions as to the protocol to be followed by the police in the event of inter-state arrests:

In the case of Manoj Pratap Singh v State of Rajasthan, the accused was arrested by the police on certain charges. However, there was a discrepancy regarding the location of his arrest. While the police claimed that the accused was arrested at a specific location, the case diary, which is an official record of the police investigation, mentioned that the arrest took place at a different location. The accused was arrested from a bus stand but the police officials claimed that they have arrested him from police station under proper procedures. The court in this case ruled that any falsification of arrest records or failure to follow legal procedures could lead to serious consequences, including charges of wrongful confinement and kidnapping and highlighted the importance of accurate documentation of arrests and the correct procedure that must be followed under Section 41 of the CrPC.

Similarly, in the case of Christian community welfare council v Government of Maharashtra & Anr, the Christian Community Welfare Council (the respondent organization) was an NGO working for the welfare of Christian minorities. The case arose from a series of events where police officers were accused of illegally arresting members of the Christian Community Welfare Council under the guise of unlawful activities. The arrested individuals were not informed of their rights as per Section 50 of the CrPC (Criminal Procedure Code), which mandates informing an arrested person of the grounds of arrest. Furthermore, there were claims that the police officers misrepresented the place and manner of arrest in their records, leading to allegations of illegal detention.They also alleged that the arrests were not only illegal but were also a violation of their fundamental rights, particularly the right to personal liberty guaranteed under Article 21 of the Indian Constitution. The Supreme Court of India in this case addressed the procedural violations and reaffirmed the principles regarding arrest procedures and the rights of the accused under Indian law.

CONCLUSION

Thus, there can be different circumstances and several situation which can lead to illegal detention. This piece ofwriting gives emphasis on the arrest made by the police officer based on wrong location. Through different judicial interpretations and pronouncements, the court has respected the individual’s article 21 and 22 of Indian constitution. The court has emphasized on constitutionalism where the police cannot misuse their powers which can further lead to arbitrariness and also gave emphasis on the procedures of a proper and lawful arrest in the same state and interstate cases.

Research by ( Anusuya Roy Chaowdhury & Arpeeta Dash) 2nd year Student (Symbiosis Law School Nagpur)

To read the Judgment click here 

Manoj_Pratap_Singh_vs_The_State_Of_Rajasthan_on_24_June_2022 The Law Literates

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                        INTRODUCTION

There are certain cases where a person is unable to execute their own documents so in that case, they authorize a third party to execute their documents. The person who gave the third person the authority to execute such documents gave this power through the power of attorney. This power of attorney granted to the third party is regulated by the Power of Attorney Act, 1882. The power of attorney can be of two types – General Power of Attorney or GPA & Special Power of Attorney. In General Power of Attorney or GPA, the principle grants all the powers to the third person for the execution of his documents which are necessary to carry out the Power of Attorney given to him. But in Special Power of Attorney the principle only grants such power to the third party which is mentioned in the Power of Attorney deed.

These powers of attorney given by the principle can be revocable as well as irrevocable in nature. In revocable nature of power of attorney, the principle can terminate the powers from the third party to whom he gave the power of attorney at any time when he wants to withdraw. According to the Section 201 of the Indian Contract Act of 1872, “If the principle revokes his authority or if the agent himselfrenounces his business of agency, or if the business of agency is completed or if either of the principle or agent is of unsound mind or if the principle considers him to be the insolvent.”

In the irrevocable nature of power of attorney, the power of attorney cannot be revoked just because it is mentioned in the deed. The cases where the power of attorney becomes irrevocable are:

According to the section 202 of the Indian Contract Act 1872, where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Here, the power of attorney cannot be revoked by the principle without the consent of the agent. In the case of Seth Loon Karan Sethiya v. Ivan E John, it was held by the Supreme court that “The principle cannot revoke the power of attorney of the agent if the agency is created through a valuable consideration. If the agent is having any kind of interest in the subject matter of the power of attorney, the agency cannot be terminated by the principle unless there is consent from the side of the agent.”
In the case of Vishnucharya v. Ramachandra, the court held that “If the agent gets some kind of commission or remuneration, it does not consider him that he is holding couple of interests.”

A general power of attorney coupled with interest/consideration can’t be revoked even after the death of the principal. Also, if the GPA is given without consideration but if it’s prepared on an appropriate stamp paper and is notarized by a notary public then it stands legally valid. Before delving into certain aspects, it’s important to understand the meaning of GPA coupled with interest. It means a power which lies in the hands of attorney not just to handle principal’s property but also any interests which may result from such authority. There are two kinds of GPA, notarized GPA and registered GPA. A notarized GPA means a valid GPA given without consideration and a registered GPA means is a verified document that can be accessed by potential buyers to check for encumbrances. In a notarized GPA, it isn’t sufficient for the purpose of appropriating immovable property in India, only a registered GPA can be considered valid for this purpose. There’s a high chance that the agent misuses the power of attorney on the grounds of fraud or misrepresentation and for that, the principal can’t be held liable through vicarious liability as the agent has exceeded his authority. Even if the act done by the agent is in mala-fide manner then the principal isn’t bound to indemnify him.

In the case of Ghanshyam v. Yogendra Rathi, the court held that “Neither an agreement to sell nor a power of attorney can be construed as a document of titles and will not confer title of the suit property on the buyer or the power of attorney holder.” And if it’s done so then it’s the sole violation of the prevailing statutory law. Also, the Hon’ble Supreme court in the case of State of Rajasthan and Ors. v. Basant Nahata held that “A power of attorney when coupled with interest, it becomes irrevocable.”

Under section 204 of Indian contract Act 1872, it mentions that a principal cannot revoke an agent’s authority if the authority has been partially exercised. Simultaneously, it means a general power of attorney stands irrevocable even if the authority has been partly exercised.

In the case of Hardip Kaur v. Kailash & Anr. “There was an involvement of a dispute concerned property at E-318, East of Kailash, New Delhi, including first, second and terrace floors. The possession was originally allotted to Darshan Kaur, but was later sold to Hardip Kaur in 1973. Later, Hardip Kaur built a three-storey building on it. In the year 1989, Hardip sold the three floors to Mohinder Kaur i.e. the defendant for four lakhs and fifty thousand rupees. It also executed other agreements like agreement to sell, power of attorney and will. In the year 1992, the defendant sold the property to defendant 3 for five lakhs and fifty thousand rupees and also executed the agreement to sell and general power of attorney. Later, the plaintiff argued that she had only sold the first and second floors to defendant and that the terrace construction was unauthorized. She also contended that the GPA and will were rescinded already in the year 1992. The court further laid down three issues regarding the sell of entire property, unauthorized GPA and terrace construction by the defendant was unauthorized. The court in the present case upheld the transactions in favour of defendants and dismissed the appeal filed by the plaintiff, mentioning the irrevocable nature of agreements and validity of the present case.” In other words, the court held that unilateral revocation by principal cannot be revoked.

Also, in the case of Indira Kaur v. Sheo Lal Kapoor, “The plaintiff was the owner of a house which is situated in the Nainital and he executed a sale deed in the year 1967 for rupees 70,000 because of the treatment of the son to the defendant. There was an agreement which allowed the plaintiff to again purchase the property within ten months. The plaintiff’s son died despite the treatment and he tried to communicate with the defendant through telegram, orally, notice to execute the sale deed. The defendant denied that there was an agreement & he maliciously claimed there was no agreement between them. Three issues were laid down before the court regarding time, transaction was a mortgage disguised as a sale and the plaintiff or defendant breached the agreement. The court in the present case held that the transaction was deemed an ostensible sale but intended as a mortgage. Time was not considered of the essence, as it is typically presumed in cases of immovable property transactions. The defendant was found to have breached the agreement by not being willing or present to execute the sale deed, whereas the plaintiff made all possible efforts to comply.

CONCLUSION

To conclude, the Power of attorney will remain valid even if there’s no transfer of property in formal manner and also like if there’s a notarized general power of attorney, it will also remain valid but it’s better to register it for the appropriation of property. There are also many cases where the power of attorney is misused by the agent and isn’t executed in good faith, then in those cases, the principal can’t be held vicariously liable for its agent exceeding its powers under his authority. Section 202 of Indian contract Act provides reference to the power of attorney with consideration can’t be revoked and section 204 of Indian contract act 1872 provides that general power of attorney stands irrevocable even if the authority has been partly exercised.

(Intern Arpeeta & Anusua) Symbiosis Law School  (Nagpur)

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