Category Archives: Useful Information

Interlocutory Orders in India

What is the meaning of “Interlocutory Orders”?

An Interlocutory Order (also known as an Interim Order) means the decision of the Court which does not deal with the finality of the case but settles subordinate issues relating to the main subject matter which maybe necessary to decide during the pendency of the case due to the time-sensitivity of those issues.

An Interlocutory Order is given mainly to ensure that the interests of either party are not harmed due to and during the process of justice.

As per section 94 of the Code of Civil Procedure 1908 Part 6:

94. Supplemental Proceedings

In order to prevent the ends of justice from being, defeated the Court may, if it is so prescribed

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

Schedule 1 of the C. P. C. (Various Orders and Rules) deals with the procedural aspect in greater detail.

Examples of Interlocutory Orders:

  • Appointment of Commissioner to conduct search and seizure
  • Temporary Injunctions
  • Appointment of Court Receiver to collect rent or payments,
  • Payment into court
  • Security for maintaining a cause

Case Law

Sub‑Committee of Judicial Accountability v. Union of India, AIR 1992 SC 63

  • Held: The Supreme Court will abstain from passing an interlocutory order if the passing of such an order has an effect or tends to be susceptible of an inference of pre-judging some important and delicate issue in the main matter

The law on speed breakers and speed humps in India

Did you know that there were laws governing speed breakers? Very few government officers and even motorists are aware of these laws and design specifications. This article attempts to explain the law on speed breakers in India.

The law on speed breakers and speed humps in India

The law on speed breakers and speed humps in India

What are speed breakers?

Speed Breakers are traffic management devices which use vertical deflection to slow down vehicles passing over them.

Speed breakers are also known as Speed Humps, Speed Bumps, Speed Ramps, Speed Cushions or Speed tables

Why are speed breakers used?

Speed breakers are used to slow down traffic near schools, hospitals so that children can cross the road more easily or senior citizens can cross at ease. They are also placed near toll booths and entry points of bridges or narrow roads, to ensure that motorists reduce their speed.

Why are unplanned or illegal speed breakers bad?

While speed breakers can help in slowing down traffic and reducing high speed crashes, an unplanned or illegal speed breaker can be as much (if not more) dangerous than the high speed crashes it is trying to prevent. It is very common across India to see speed breakers being laid willy-nilly

  • Slows down emergency vehicles like ambulances, police vehciles and fire trucks
  • Cause traffic congestion and sudden braking
  • Reduces fuel efficiency and increases air pollution of vehicles
  • Causes rapid wear and tear of vehicles
  • The impact can be harmful for patients in transit, senior citizens and pregnant women.
  • Causes an increase in Noise Pollution due to sudden braking, honking, vehicle parts and traffic congestion 
  • May scrape the under-body of low floor cars
  • Can cause vehicles (especially 2 wheelers) to skid and cause a collision due to loss of control

Is there a law governing speed breakers?

Coming soon….

There are various judgements by various Courts, directing the government to

Laws which refer to speed breakers:

  • Home Department’s Resolution No. TFC-1092-991-V dated 23rd March 1992

Where can speed breakers be placed as per law?

Speed Breakers must be used only in urban areas for minor roads and residential areas. Speed Breakers are NOT recommended on high-speed roads or highways outside urban limits.

As per the Indian Road Congress guidelines, dated 12 June 1987, speed breakers must be placed on minor roads, only as follows:

4.1 Warrants:

Use of speed breakers is justified only in the following 3 circumstances:

  1. T-intersections of minor roads with rural trunk highways, characterized by relatively low traffic volumes on the minor road but very high average operating speed and poor sight distances. Such locations have a high record of fatal accidents and as such a speed breaker on the minor road is recommended;
  2. Intersections of minor roads with major roads, and mid-block sections in urban areas where it is desirable to bring down the speeds; and
  3. Selected local streets in residential areas, schools, colleges or university campuses, hospitals, etc. Also in areas where traffic is observed to travel faster than the regulated or safe speed in the area.

Other place where these may be used include:

1. Any situation where there is a consistent record of accidents primarily attributed to the speed of the vehicles e.g. when hazardous sections follow a long tangent approach;

2. Approaches to temporary diversions;

3. Approaches to weak or narrow bridges and culverts requiring speed restriction for safety;

4. On the minor arms of uncontrolled junctions and at railway level crossings;

5. Sharp curves with poor sight distances; and

6. Places of ribbon development, where road passes through builtup areas and vehicles travelling at high speeds are a source of imminent danger to pedestrians.

What are the specifications for ideal speed breakers?

The Indian Roads Congress has suggested that speed breakers are formed basically by providing a rounded (of 17 metre radius) hump of 3.7 metre width and 0.10 metre height for the preferred Advisory crossing speed of 25 km/h for general traffic. It is mentioned that more humps be constructed at regular intervals depending on desired speed and acceleration/deceleration characteristics of vehicles and that the distance between one hump to another can vary from 100 to 120 metres centre to centre.

What type of marking and painting needs to be done on speed breakers?

What type of marking and painting needs to be done on speed breakers in India?

What type of marking and painting needs to be done on speed breakers in India?

  • Drivers should be warned of the presence of speed breakers by posting suitable advance warning signs. The warning signs, should be of the design ‘HUMP OR ROUGH ROAD’ detailed in IRC: 67-1977 ‘Code of practice for Road Signs’. The sign should have a definition plate with the words ‘SPEED BREAKER’ inscribed thereon and should be located 40 m in advance of the first speed breaker.
  • Speed breakers should be painted with alternate black and white bands to give additional visual warning. For better night visibility, it is desirable that the markings are in luminous paint/luminous strips. Embedded cat-eyes can also be used to enhance night visibility.

Who is authorized to install speed breakers? Who is responsible for maintaining and installation of speed breakers?

Location of the speed breakers are authorised by the Traffic Police Department on its own or on suggestions received from the public .

The public may  send suggestions on placement or requirement of speed breakers to the

  • Traffic Police Department or
  • Traffic Department of the Municipal Corporation (Eg: MCGM in Mumbai)

The Director General of Police of the state and concerned Municipal Commissioners/ Councillors in charge of Municipal Corporations/Councils are also accountable for the upkeep and maintenance of the speed breakers and to ensure that new speed breakers are constructed in consonance with the guidelines provided by the Indian Road Congress.

The National Highways Authority of India is responsible for speed breakers on the highways.

Landmark Cases on Speed Breaker Law

  • J P Sanghi v. State Of MP 1984 – Petition challenging the speed breakers in the town of Jabalpur and also on national highways passing through Madhya Pradesh.
  • Kumudben Sureshchandra v. Jamnagar Municipal Corporation 1996 – Death due to unmarked speed breaker and compensation – “The Government, the authority in charge of Highways and local authorities, such as Municipal Corporation, Municipalities, Panchayats, and Urban Development Authorities, within their respective territorial jurisdiction, are duty bound to provide safe and motorable roads without any obstruction and with just and reasonable safety devices. If in law there is no provision for erecting a speed breaker, and if it is found that the speed of vehicles at a particular point of road is to be regulated, then a scientific study of the same keeping in mind various aspects has to be undertaken so as to make the device to reduce the speed just and reasonable, which would not result into causing more unintended harm than intended benefits.”
  • Kewal Semlani v. Commissioner Of Bombay And Ors. 2005 – Bombay High Court issues directions for speed breakers in Mumbai.
  • N.D.M.C. v. Shri Chander Kishore Aggarwal 2011 – Compensation of Rs. 1 Lakh granted to motorist. NDMC held guilty of negligence for not maintaining speed breaker and thereby causing the accident.

 

The Monkey selfie and why Wikipedia is wrong

This article deals with the detailed explanation on why in the case of the Monkey Selfie, Wikipedia’s stand is wrong and why the photographer David J Slater is the true author of the work uploaded on Wikipedia.

The case in brief:

  • In 2011, nature photographer David Slater travelled to Indonesia to take photographs of the Celebes crested macaques
  • He had dropped one of his cameras which was picked up by one female monkey, who clicked a self-image / selfie.
  • The author distributed those images to various people.
  • One such image was uploaded on Wikipedia.
  • The author requested removal claiming copyright.
  • Wikipedia refused to remove the image claiming that no one held the copyright and it fell in the public domain. See: https://commons.wikimedia.org/wiki/Commons:Deletion_requests/File:Macaca_nigra_self-portrait.jpg

Wikipedia’s Stand:

“This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”

See: https://commons.wikimedia.org/wiki/File:Macaca_nigra_self-portrait_(rotated_and_cropped).jpg

Wikipedia said that the photo is uncopyrightable, since current US Copyright Office policy is that animals can’t own copyrights.

US Copyright Law: Copyright Compendium § 202.02(b):

The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

Is Wikipedia right?

No. Wikipedia has ignored the same yardstick that they are claiming to follow.

The US Copyright law clearly states that:  for a work to be copyrightable, it must owe its origin to a human being

The term origin definitely includes the facts that took place before the image was taken. This means that if David Slater had not gone to visit the monkeys with a camera, there would have been no photograph. It was his labour, skill and capital which was invested in the trip, which led to the taking of the photograph. The monkey would never have been able to lay her hands on a camera otherwise.

The law goes on to state that: Materials produced solely by nature, by plants, or by animals are not copyrightable.

This in itself shows the legislative intent that a design in the sand or a beautifully eroded rock cannot be copyrighted, because there was no human element behind it. However, this work was not solely created by the monkey. Unless monkeys invent camera’s in some form, they will not be able to claim sole rights to the photographs that they take.

Is David Slater the author of the work?

Yes. In order for a person to claim copyright, he should have expended a non-trivial amount of creativity or intellect to create the work. This means that the person claiming the work should not only have expended labour, skill and capital, but he must also have applied some creativity to the work. In the current case, David Slater has a strong argument to show that due to his creativity of setting up the camera system, he is the copyright holder.

Under UK Copyright law, would David Slater have got the copyright?

Yes. Under UK Copyright law, David Slater only required to show that he had taken some basic effort to create the work, whether it was original or not. Read: Sweat of the brow doctrine

Under Indian Copyright law, would David Slater have got the copyright?

Yes. As per the Indian Copyright Act, the author of a photograph is:

2(d)(iv) ….. the person taking the photograph;

The word “person” implies an individual or body of individuals whether incorporated or not. Animals are not “persons”

The word “taking” includes the meaning “causing the photograph to be taken”

It can be reasonably said that David Slater “caused the photograph to be taken” by dropping or losing the camera and then recovering it.

Is the selfie picture in the public domain?

No. The author owns the copyright and reserved his work from being published. The work does not fall in the public domain.

What about the monkey’s rights?

As of now the monkey has no more rights than chattel i.e. immovable property. This means that the monkey has no rights to hold property under any law in any jurisdiction.

Similar examples to buttress the submission:

  • In game sanctuaries, camera traps are setup to catch poachers or other wildlife. The camera is motion activated and clicks a picture upon detecting motion. Does this mean that the copyright belongs to the poachers? It cannot be.

 

High BEST Electricity Bill? Steps to complain and what to check before that

Off late many residents in Mumbai have been complaining that the B. E. S. & T. Undertaking, which supplies electricity to Mumbai, has been sending inflated or erroneous bills to Commercial as well as Residential users. BEST has been dealing with many unnecessary and incorrect complaints of high bills due to improper advertising of the Revised Electricity Tariffs as well as the ignorance of users.

This article explains how to deal with the legal aspects of a high BEST electricity bill and how to check what is causing the high bill before complaining and how to deal with the authorities to claim a compensation or rectification in the bill.

My BEST Bill is of a very high amount. What could the reasons be?

There are many reasons why you could be getting a high electricity bill. Some of them include:

  • Improper or old wiring
  • Old appliances, especially with heating elements like Water Geysers, Irons, Electric Stoves etc.
  • Theft of Electricity
  • Incorrect reading by the BEST
  • Faulty meter or Meter display broken
  • Mistake by BEST in processing the bill
  • Past outstanding bills accumulating
  • Revised tariff  (Most common cause)

How can I check what the correct reading of my BEST Bill should be?

1. Calculate your Electricity Consumption on the BEST Website:

http://bestundertaking.com/electric/electricity_calculator.asp

The Electricity Calculator will tell you approximately how many units should ideally be reflected on your bill.

Note: This may not be accurate if you have faulty or old equipment. An old fan will consume more units than what has been given as a reference in the electricity calculator.

2. Once you have the number of units consumed, you can check the tariff slab that you fall within.

MERC has permitted a revision in tariff by BEST with effect from 1-Apr-2014. The Revised Tariff for each month can be seen at:

http://bestundertaking.com/electric/fac_rates.asp

You need to check which user category you fall under and then accordingly multiply the number of units with the amount in each heading.

Eg: If you are User Type LT- 2(A) i.e. Commercial and have used 280 units in June 2014 your bill should be as follows:

  • Energy Charges = 280 x Rs. 7.45 = Rs. 2086
  • Transport Division Loss Recovery Charges = 280 x Rs. 1.48 = Rs. 414.4
  • FAC Rate / Fuel Adjustment Rate = 280 x Rs. 1.10 = Rs. 308

3. If you feel that the number of units used is very high, check your bill to compare with the units consumed in the last year same month.

This will give you an idea if your consumption has increased or the tariff has increased.

My bill seems to be incorrect or very high for the current month. I have suddenly got a very high bill of a ridiculous amount. How can I complain?

If after thorough checking you are sure that your bill is incorrect or high, you can follow the steps below:

1. Draft a complaint to the Internal Grievances Redressal Cell or use the draft sample below.

The Address of the office is given on your electricity bill. You can also find the details here: http://bestundertaking.com/pdf/Brihan%20Mumbai%20Electric%20Supply.pdf

Attach copies of the past 2 – 3 bills showing the discrepancy.

 

 

The law on Pollution Under Control (PUC) in India

The law on Pollution Under Control (PUC) in India

The law on Pollution Under Control (PUC) in India

This article explains about the Certification Mark of PUC for Motor Vehicles in India.

What is PUC?

PUC (Pollution Under Control) is a Certification Mark issued to certify that motor vehicles in India meet emission and pollution control norms.

Which vehicles must have PUC?

All motor vehicles must have a valid PUC Certificate.

The term motor vehicle is defined in Section 2(28) of The Motor Vehicles Act, 1988:

(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres; is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres;”

What are the charges for PUC checking?

PUC charges vary from place to place, but are usually between Rs. 60 to Rs. 100 for a 4 wheeler – Petrol LMV.

What is the procedure for PUC tests?

For Diesel vehicles:

  • The accelerator should be fully pressed.
  • The reading of pollution levels should be noted with the acceleration pedal fully pressed.
  • The average of five readings is considered as the Final Reading

For Petrol vehicles:

  • The vehicle is kept idling without the accelerator pressed.
  • Only one reading is taken.

What is the validity of a PUC Certificate?


Sr. No. PUC Test Reading Validity
Petrol Diesel
1 Less than 3 % Less than 1.5 % Less than 50 Hartridge Smoke Units. 6 Months
2 3 to 4 % 1.5 to 2.5 % 50 to 60 Hartridge Smoke Units 4 Months
3 4 to 4.5 % 2.5 to 3.00 % 60 to 65 Hartridge Smoke Units 2 Months

What is the validity of PUC for a new car? When should the first PUC check be done on a new car?

The validity of PUC for a new car is 1 year from the date of registration.

Thereafter PUC tests must be done every 6 months. In the case of higher CO2 levels, refer to the table above.

What is required to undergo a PUC check?

Just your car.

What should be mentioned on the PUC Certificate?

The PUC certificate must mention:

  • the certificate serial number
  • the vehicle license plate number
  • the date of testing
  • the expiry date
  • the emission readings

Who is authorised to conduct a PUC test?

The persons conducting the test should hold a minimum qualification of certificate in Automobile Engineering or Motor Mechanics issued by Industrial Training Institute of Government of Maharashtra and should also know the procedure for minor adjustments/repairs with which the pollution levels can be brought down, without affecting overall performance of the engine.

What are the pollution limits?

Refer to the table above to know the permitted emission limits.

What if my motor vehicle exceeds the pollution limits?

Incase of vehicles showing higher level of emissions than the prescribed limits under Central Motor Vehicles Rules 1989 the registration number of such vehicles should be informed to concerned RTO, Dy. RTO Or Asst. RTO by the permit holder of the testing Centre within 24 hours.

What should I do with the PUC Certificate? Do I need to keep the PUC Certificate in the vehicle?

Yes. You must carry a valid PUC certificate in the vehicle.

As per the Central Motor Vehicle Rules 1989 Rule 115:

115. Emission of smoke, vapour, etc. from motor vehicles:
(7) After the expiry of a period of one year from the date on which the motor vehicle was first registered, every such vehicle shall carry a valid ‘Pollution under control’ certificate issued by an agency authorised for this purpose by the State Government. The validity of the certificate shall be for six months and the certificate shall always be carried in the vehicle and produced on demand by the officers referred to in sub-rule (1) of rule 116.

This means that you must have the PUC Certificate in the vehicle at all times and it must be produced immediately when asked by any officer not below the rank
of Sub-Inspector of Police or the Inspector of Motor Vehicles.

I have heard that it is NOT mandatory to keep the PUC Certificate in the vehicle and I can produce it within 7 days from the RTO officer asking me in writing.

That is NOT correct.

Section 115 (given above) is very clear that “the certificate shall always be carried in the vehicle and produced on demand”

It has been misinterpreted as being part of Section 116 which states that:

(1) Notwithstanding anything contained in sub-rule (7) of rule 115 any officer not below the rank of Sub-Inspector of Police or the Inspector of Motor Vehicles who has reason to believe that a motor vehicle is not complying with the provisions of sub-rule (2) or sub-rule (7) of rule 115, may in writing direct the driver or any person incharge of the vehicle to submit the vehicle for conducting the test to measure the standards of emission in any one of the authorised testing stations, and produce the certificate to an authority at the address mentioned in the written direction within 7 days from the date of conducting the check.

Section 116 clearly starts with the word notwithstanding.

This means that even if a vehicle has a valid PUC Certificate as given in section 115, but the officer believes that the vehicle maybe a source of pollution beyond the limits, he may ask for the vehicle to be rechecked.

This order to retest the vehicle for PUC norms, must be in writing and can be replied to within 7 days.

It does not mean that the PUC certificate need not be carried with the vehicle or that it can be produced within 7 days.

Is the PUC valid throughout India? Do I need to take a separate PUC if I am travelling to a different state in India?

Yes. The PUC certificate is valid throughout India.

As per section 116:

(8) The certificate issued under sub-rule (7) shall, while it remains effective be valid throughout India.