THE PUNJAB PRE-EMPTION ACT 1991

THE PUNJAB PRE-EMPTION ACT 1991- PAKISTAN

(Pb. Act IX of 1991)

C O N T E N T S

SECTIONS

1. Short title, extent and commencement.

2. Definitions.

3. Interpretation.

4. Act to override other laws.

5. Right of pre-emption.

6. Persons in whom the right of pre-emption vests.

7. Priorities in the right of pre-emption.

8. Joint right of pre-emption how exercised.

9. Method of distribution of the property where more than one persons are equally entitled.

10. Withdrawal of claim.

11. Sale of appurtenances of land.

12. Right to revoke sale.

13. Demand of pre-emption.

14. Demand by guardian or agent.

15. Waiver of the right of pre-emption.

16. Death of pre-emptor.

17. Abatement of right of pre-emption.

18. Exercise of right of pre-emption by a Muslim and a non-Muslim against each other.

19. Right of pre-emption non-transferable and indivisible.

20. Where the pre-emptor and vendee equally entitled.

21. Improvements made by the vendee.

22. Improvement made in the status of the vendee-defendant after institution of the Suit.

23. No right of pre-emption in respect of certain properties.

24. Plaintiff to deposit sale price of the property.

25. Deposit or refund of excess price.

26. Sum deposited by pre-emptor not to be attached.

27. Determination of price.

28. Market value how to be determined.

29. Government may exclude areas from pre-emption.

30. Limitation.

31. Notice.

32. Matters ancillary or akin to the provisions of this Act.

33. Application of the Civil Procedure Code and Qanun-e-Shahadat Order.

34. Repeal of Act I of 1913.

35. Saving.

36. Rules.

37. Repeal of Ordinance IX of 1991.


[1]THE PUNJAB PRE-EMPTION ACT 1991

(Pb. Act IX of 1991)

[6 April 1991]

An Act to bring in conformity with the injunctions of Islam the law relating to pre-emption

Preamble.— Whereas it is expedient to re-enact the existing law relating to pre-emption, so as to bring it in conformity with the injunctions of Islam as set out in the Holy Qur’an and Sunnah;

It is hereby enacted as follows:-

1. Short title, extent and commencement.— (1) This Act may be called the Punjab Pre-emption Act 1991.

(2) It extends to the whole of the Punjab.

(3) It shall come into force at once.

2. Definitions.— In this Act, unless there is anything repugnant in the subject or context

(a) “immovable property” means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force;

(b) “pre-emptor” means a person who has the right of pre-emption;

(c) “right of pre-emption” means a right to acquire by purchase an immovable property in preference to other persons by reason of such right; and

(d) “sale” means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of ‘hiba bil-iwaz’ or ‘hiba ba-shart-ul-iwaz’, but does not include—

(i) transfer of an immovable property through inheritance or will or gift, other than ‘hiba bil-iwaz’ or ‘hiba ba-shart-ul-iwaz’;

(ii) a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other court or a Revenue Officer or any local authority;

(iii) exchange of agricultural land; and

(iv) transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt case.

3. Interpretation— In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur’an and Sunnah.

4. Act to override other laws — The provisions of this Act shall have effect notwithstanding anything in any other law for the time being in force.

5. Right of pre-emption— The right of pre-emption shall arise in case of sale of immovable property.

6. Persons in whom the right of pre-emption vests.— (1) The right of pre-emption shall vest—

(a) firstly, in Shafi Sharik;

(b) secondly, in Shafi Khalit; and

(c) thirdly, in Shafi Jar.

Explanation— I ‘Shafi Sharik’ means a person who is a co-owner in the corpus of the undivided immovable property sold.

II ‘Shafi Khalit’ means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.

III ‘Shafi Jar’ means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.

(2) Notwithstanding anything in sub-section (1), the right of pre-emption shall be exercisable only in case of ‘Zaroorat’ or to avoid ‘Zarar’.

7. Priorities in the right of pre-emption.— Where there are more than one participators in the special rights attached to the immovable property sold, the person having a special right shall have precedence over a person having a general right.

ILLUSTRATIONS

I) A garden is irrigated by a water course which opens from a small canal. If this garden is sold, the person having right of irrigation from the water course shall have precedence over a person having right of irrigation from the canal. But if such garden is irrigated from the small canal, the person having right of irrigation from the water course as well as the person having right of irrigation from the canal shall have the right of pre-emption.

II) Where there are more than one pre-emptors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedence over the person having right of passage of water.

III) A participator in the special rights having his property, on the basis of which he claims to be the pre-emptor nearer to the immovable property sold, shall have precedence over the pre-emptor having such property not so near to the immovable property sold.

8. Joint right of pre-emption how exercised.— Where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.

9. Method of distribution of the property where more than one persons are equally entitled— Where more than one persons are found by the Court to be equally entitled to the right of pre-emption, the property shall be distributed among them in equal shares.

ILLUSTRATION

A has one-half share in a house, B has one-third and C has one-sixth share in such house. If A sells his one-half share, the other two co-sharers, namely B and C shall have equal right of pre-emption in one-half of the house and this one-half shall be distributed between B and C in equal shares and not according to their respective shares in the house.

10. Withdrawal of claim.— Where there are more than one pre-emptors having sued jointly or severally and any of them withdraws his claim before the decision of the Court, the remaining pre-emptors shall be entitled to the whole property:

Provided that the claim of the remaining pre-emptors was originally made for the whole property.

11. Sale of appurtenances of land.— Where only trees or a building is sold without land, no right of pre-emption shall exist in such trees or the structures of a building, but where land is sold with trees and building on it, the trees and buildings shall be deemed to be included in the land for purposes of the right of pre-emption.

12. Right to revoke sale.— Where the vendor has stipulated in the contract of sale that it is subject to revocation by him within a period, not exceeding sixty days, specified in such contract, the right of pre-emption shall not be exercised until such period has expired:

Provided that option of defect in, or inspection of, the property or the stipulation as to the vendee’s right to revoke the contract of sale shall not be a bar to the exercise of the right of pre-emption.

13. Demand of pre-emption— (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely—

(a) ‘talb-i-muwathibt’;

(b) ‘talb-i-ishhad’; and

(c) ‘talb-i-khusumat’.

Explanation.— (I) ‘Talb-i-muwathibat’ means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.

Note:- Any words indicative of intention to exercise the right of pre-emption are sufficient.

(II) ‘Talb-i-ishhad’ means demand by establishing evidence.

(III) ‘Talb-i-khusumat’ means demand by filing a suit.

(2) When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make talb-i-muwathibat.

(3) Where a pre-emptor has made talb-i-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption:

Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i-ishhad in the presence of two truthful witnesses.

(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under sub-section (2) and talb-i-ishhad under the sub-section (3), he shall make talb-i-khusumat in the court of competent jurisdiction to enforce his right of pre-emption.

14. Demand by guardian or agent— Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf.

15. Waiver of the right of pre-emption— The right of pre-emption shall be deemed to have been waived if the pre-emptor has acquiesced in the sale or has done any other act of omission or commission which amounts to waiver of the right of pre-emption.

16. Death of pre-emptor— Where a pre-emptor dies after making any of the demands under section 13, the right of pre-emption shall stand transferred to his legal heirs.

17. Abatement of right of pre-emption— (1) Where a pre-emptor, before the decree of a Court, alienates the property on the basis of which he claims the right of pre-emption, such right shall abate.

(2) An alienee of the property under sub-section (1) shall not be entitled to the right of pre-emption.

18. Exercise of right of pre-emption by a Muslim and a non-Muslim against each other— A Muslim and a non-Muslim may exercise the right of pre-emption against each other.

19. Right of pre-emption non-transferable and indivisible— (1) Save as provided in Section 16, the right of pre-emption shall be non-transferable and indivisible.

(2) The claim for pre-emption shall be made on the whole property pre-emptible.

20. Where the pre-emptor and vendee equally entitled— Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally.

21. Improvements made by the vendee— Where a vendee has made any improvements in the immovable property before talb-i-ishhad is made by the pre-emptor under sub-section (3) of Section 13, the vendee shall be entitled to the cost of such improvements.

22. Improvement made in the status of the vendee-defendant after institution of the suit.— Any improvement made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of pre-emptor-plaintiff.

23. No right of pre-emption in respect of certain properties.— (1) No right of pre-emption shall exist in respect of sale of—

(a) waqf property or property used for charitable, religious or public purpose; and

(b) property owned by the Federal or a Provincial Government or a local authority.

(2) The property acquired by a Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible.

24. Plaintiff to deposit sale price of the property.— (1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:

Provided that such period shall not extend beyond thirty days of the filing of the suit:

Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.

(2) Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.

(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.

(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor.

25. Deposit or refund of excess price.— (1) Where a Court passes a decree in favour of pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require the pre-emptor to deposit the remaining amount within thirty days of the passing of the decree.

(2) Where a decree is passed for a lesser amount than the amount already deposited by the pre-emptor, the Court shall refund the excess amount to such pre-emptor.

26. Sum deposited by pre-emptor not to be attached.— No sum deposited in or paid into Court by a pre-emptor under the provisions of this Act shall, while it is in custody of the Court, be liable to attachment by any Civil, Criminal, Revenue or any other Court or a Revenue Officer or a local authority.

27. Determination of price— (1) Where the parties do not agree to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place was fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.

(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor.

28. Market value how to be determined— For the purpose of determining the market value of a property, the Court may consider the following, among other matters, as evidence of such value—

(a) the price or value actually received or to be received by the vendor from the vendee;

(b) the estimated amount of the average annual net profits of the property;

(c) the value of similar property in the neighbourhood;

(d) the value of similar property as shown by previous sales made in the near past.

29. Government may exclude areas from pre-emption.— The Government may, in the public interest, by a notification in the official Gazette, declare that in any local area or with respect to any sale or class of sale, no right of pre-emption shall exist or only such limited right, as it may specify, shall exist.

30. Limitation— The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date—

(a) of the registration of the sale deed;

(b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale deed;

(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale deed or a mutation; or

(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c).

31. Notice— (1) The Officer registering the sale deed or attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.

(2) The notice under sub-section (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of the village or place where the property is situated.

(3) The charges for the notice under sub-section (2) shall be recovered from the vendee by the Officer registering the sale or attesting the mutation, as the case may be, at the time of such registration or attestation.

32. Matters ancillary or akin to the provisions of this Act.— Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari’ah.

33. Application of the Civil Procedure Code and Qanun-e-Shahadat Order.— The Provisions of the Code of Civil Procedure, 1908 (Act V of 1908) and Qanun-e-Shahadat Order, 1984 (P.O. X of 1984) or any other law on the subject for the time being in force shall, mutatis mutandis, apply to the proceedings under this Act.

34. Repeal of Act I of 1913.— (1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed.

(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgements and decrees had been passed before the 1st day of August 1986, further proceedings, if any, relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof.

35. Saving.— (1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgements or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August 1986 and the 28th March 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to sub-section (2), be decided afresh according to the provisions thereof.

(2) Notwithstanding anything in Sections 13 and 30, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made ‘Talb-i-Ishhad’ in the presence of two truthful witnesses.

36. Rules.— Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

37. Repeal of Ordinance IX of 1991.— The Punjab Pre-emption Ordinance 1991 (IX of 1991), is hereby repealed.


[1]This Act was passed by the Punjab Assembly on 21st March, 1991; assented to by the Governor of the Punjab on 31st March, 1991; and, was published in the Punjab Gazette (Extraordinary), dated 6th April, 1991, Pages 913-A to 913-G.

Masroor Ahmad Khan Vs. State of Uttarakhand & Ors- 03/12/2018

It is a settled principle of law that in order to prove that the possession of any person in any immovable property is legal, it is necessary for such person to prove prima facie that he is either the owner of such property or is in possession as a lawful tenant or is in its permissive possession with the express consent of its true owner. Such is not the case here.

DATE: December 03, 2018

SUPREME COURT OF INDIA

Masroor Ahmad Khan Vs. State of Uttarakhand & Ors.

[Civil Appeal Nos.11761-11762 of 2018 arising out of S.L.P. (C) Nos. 25218-25219 of 2018]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final judgment and order dated 28.08.2018 in Special Appeal No.25 of 2015 and order dated 07.09.2018 in Review Application MCC No.1193 of 2018 in Special Appeal No.25 of 2015 passed by the High  Court of Uttarakhand at Nainital whereby the High Court dismissed the special appeal and the Review Application filed by the appellant herein.

3. In order to appreciate the short controversy involved in these appeals, few facts need to be mentioned here-in-below.

4. Respondent Nos.3 and 4 are the Nagar Palika Parishad, Nainital (hereinafter referred to as “the Nagar Palika”). In 1990, the Nagar Palika issued an advertisement to auction their residential quarter Nos.6 and 7 situated at Waverly Compound (Gopala Sadan) Mallital, Naintal. So far as this case is concerned, it relates to quarter No. 6.

5. The appellant herein claimed to be one of the participants in the auction proceedings and also the highest bidder. The appellant claimed that he occupied quarter No.6 and started living therein since June 1990. The appellant complained that in  the year 2001 (18.07.2001), the Nagar Palika instead of executing the sale deed in his favour in relation to quarter No.6, passed a resolution to sell quarter No.6 along with other quarters in public auction.

6. The appellant, therefore, filed an application under Section 35 of the Municipalities Act praying therein for a direction to the Nagar Palika for execution of the sale deed in his favour in relation to quarter No.6.

7. By order dated 21.07.2006, the Commissioner, Nainital passed an order directing Nagar Palika to execute the sale deed in favour of the appellant. He also fixed the rate at which the sale deed was to be executed followed by another order to that effect.

8. The Nagar Palika felt aggrieved and filed application/appeal to the State (respondent No.1). By order dated 12.03.2007, the State set aside the order of the Commissioner dated 21.07.2006 which gave rise to filing of the writ petition by the appellant in the High Court at Nainital. By impugned order, the High Court dismissed the writ petition and also the review application filed by the appellant herein, giving rise to filing of the present appeals by way of special leave in this Court.

9. The short question, which arises for consideration, in this case is whether the High Court was justified in dismissing the special appeal filed by the appellant.

10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.

11. In our opinion, the possession of the appellant since inception, i.e., since June 1990 in quarter No.6 was unauthorized and was that of a trespasser. This we say for more than one reason.

12. First, there was no allotment letter issued by Nagar Palika in relation to quarter No.6 to the appellant in the socalled auction proceedings held in 1990; Second, the appellant also failed to file any such allotment letter nor could file any acceptance letter of Nagar Palika indicating acceptance of his socalled highest bid; Third, the appellant also failed to show as to how much amount he actually paid to the Nagar Palika towards the sale/auction price for quarter No. 6 and, if so, when; Fourth, there was no privity of contract between the appellant and the Nagar Palika which could justify appellant’s entry in quarter No. 6 as being legal and lastly, in the absence of any document of title or/and legal document executed by the Nagar Palika in appellant’s favour in relation to quarter No.6 before the appellant entering in quarter No.6 in June 5 1990, the appellant’s possession cannot be held legal.

13. It is a settled principle of law that in order to prove that the possession of any person in any immovable property is legal, it is necessary for such person to prove prima facie that he is either the owner of such property or is in possession as a lawful tenant or is in its permissive possession with the express consent of its true owner. Such is not the case here.

14. The appellant has not taken any such plea and even if he claims to have taken, then also, in our view, he has failed to prove such plea for want of any evidence.

15. We have also perused the documents filed by the appellant in that behalf. Having perused, we are of the view that these documents are of no help to him to prove his ownership or/and possession in 6 quarter No.6. These documents are not the documents of title, nor do they prove appellants legal possession over quarter No.6 and nor do these documents in any way bind the Nagar Palika.

16. It is for all these reasons, we are of the opinion that the appellant was in possession of quarter No.6 as a trespasser since June 1990 and, therefore, he was liable to be evicted from the said quarter by the Nagar Palika. Not only that the appellant has also rendered himself liable to pay damages for wrongful use and occupation of quarter No.6 since June 1990(see page E) to the Nagar Palika till he vacates the quarter No.6.

17. In order to decide the quantum of damages, we do not consider proper to remand the case to the competent authority under The Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

18. We, therefore, enquired from the lawyers representing the parties as to what is the approximate area of quarter No. 6 and what would be its monthly rent that it could fetch in the market during the period in question.

19. Having heard their views, we have formed an opinion that the appellant should be made liable to pay Rs.3000/per month to the Nagar Palika by way of damages for the use and occupation of quarter No. 6 from June 1990 till he handovers its vacant possession. The sum which we have fixed balances the rights and equities between the parties.

20. The appellant is granted three months’ time to vacate quarter No. 6 situated at Waverly Compound (Gopala Sadan) from the date of this order. The appellant is further directed to pay to the Nagar Palika (respondent No.3 herein) the damages for use and occupation of the quarter No.6 from June 1990 (the month when he occupied the quarter) till the date he vacates the quarter in terms of this order within three months.

21. The damages be calculated at the rate of Rs.3000/per month from June 1990 till the delivery of possession.

22. In case the appellant fails to vacate the quarter and fails to pay the damages, it would be construed as noncompliance of this Court’s order and in that eventuality the Nagar Palika would be at liberty to move to this Court against the appellant for appropriate order.

23. The appeal stands accordingly finally disposed of.

J. [ABHAY MANOHAR SAPRE]

J. [INDU MALHOTRA]

New Delhi;

December 03, 2018


 

ENFORCEMENT OF SHARI’AH ACT 1991

ENFORCEMENT OF SHARI’AH ACT 1991 – PAKISTAN

ACT X OF 1991

An Act for the enforcement of Shari’ah

NOTIFICATION: Gazette of Pakistan, Extraordinary, Part 1, 18th June, 1991

The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 5th June, 1991. and is hereby published for general information:-

Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and authority to be exercised by the people of Pakistan through there chosen representatives  with the limits prescribed by Him is a sacred trust.

And whereas the Objectives Resolution has been incorporated in the Constitution of the Islamic Republic of Pakistan as a substantive part thereof ;

And whereas Islam has been declared to be the State religion of Pakistan and it is obligatory for all Muslims to follow the Injunctions of the Holy Qur’an and Sunnah to regulate and order there lives in complete submission to the Divine law;

And whereas it is one of the fundamental obligations of the Islamic State to protect the honour, life, liberty and the fundamental right a of the citizens as guaranteed under the constitution and to ensure peace and provide inexpensive and speedy justice to people through an independent Islamic system of justice without any discrimination.

And whereas Islam enjoins establishment of social order based on the Islamic values of bidding what is right and forbidding what is wrong (amr bil Ma’ roof wa nahi anil Munkar);

And whereas in order to achieve the aforesaid objectives and goals, it. is necessary to give to these measures constitutional and legal backing,

It is hereby enacted as follows :

1. Short title, extent and commencement

(1)  This Act may be called the Enforcement of Shari’ah Act, 1991.

(2)  It extends to the whole of Pakistan.

(3) It shall come into force at once.

(4) Nothing contained in this Act shall affect the personal laws, religious freedom traditions, customs and way of life of the non Muslims.

2. Definition.

In this Act “Shari’ah” means the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah.

Explanation:– While interpreting and explaining the Shari’ah the recognized principles of interpretation and explanation of the Holy Qur’an and Sunnah shall be followed and the expositions and opinions of recognized jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration.

3. Supremacy of Shari’ah.

(l)  The Shari’ah that is to say the Injunctions of Islam as laid in the Holy Qur’an and Sunnah, shall be the supreme law of Pakistan.

(2)  Notwithstanding anything contained in this Act, the judgment of any Court or any other law for the time being in force, the present political system, including the Majlis-e-Shoora (Parliament) and Provincial Assemblies and the existing system of  Government, shall not be challenged in any Court, including Supreme Court, the Federal Shariat Court or any authority or tribunal:

Provided that nothing contained herein shall effect the right of the non-Muslims guaranteed by or under the Constitution.

4. Laws to be interpreted in the light of Shari’ah.

For the purpose of this Act—

(a)  while interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court ; and

(b) where two or more interpretations are equally possible the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.

5. Observance of Shari’ah by Muslim citizens.

All Muslim citizens of Pakistan shall observe Shari’ah and act accordingly and in this regard the Majlis-e-Shoora (Parliament) shall formulate code of conduct for Government functionaries.

6. Teaching of, and training in, Shari’ah etc.

The State shall make effective arrangements,–

(a) for the teaching of, and training in the Shari’ah, Islamic jurisprudence and all other branches of Islamic law at appropriate levels of education and professional training.

(b) to include courses on the Shari’ah in the syllabi of the law colleges ;

(c) for the teaching of the Arabic language; and

(d) to avail the services of persons duly qualified in Shari’ah, Islamic jurisprudence and Ifta in judicial system.

7. Islamization of education.

(l) The State shall take necessary steps to ensure that the educational system of Pakistan is based on Islamic values of learning, teaching and character building.

(2) The Federal Government shall within thirty days from the commencement of this Act appoint a Commission consisting of educationists, jurists, experts, ulema and elected representatives as it may deem fit and appoint one of them to be its Chairman.

(3) The functions of the Commission shall be to examine the educational system of Pakistan to achieve the objectives referred to in subsection (1) and make recommendations in this behalf.

(4) A report containing the recommendations of the Commission shall be submitted to the Federal Government which shall cause it to be placed before both the Houses of Majlis-e-Shoora (Parliament).

(5) The Commission shall have the power to conduct its proceedings and regulate its procedure in all respects as it may deem fit.

(6) All executive authorities, institutions and local authorities shall act in aid of the Commission.

(7) The Ministry of Education in the Government of Pakistan shall be responsible for the administrative matters relating to the Commission.

8. Islamization of economy.

(l) The State shall take steps to ensure that the economic system of Pakistan is constructed on the basis of Islamic economic objectives, principles, and priorities.

(2) The Federal Government shall, within thirty days from the commencement of this Act, appoint a Commission consisting of economists, bankers, jurists, ulema, elected representatives and such other persons as it may deem fit and appoint one of them to be its Chairman.

(3) The functions of the commission shall be–

(a) to recommend measures and steps, including suitable alternatives, by which the economic system enunciated by Islam could be established ;

(b) to recommend the ways, means and strategy for such changes in the economic system of Pakistan so as to achieve the social and economic well being of the people as envisaged by Article 38 of the Constitution;

(c) to undertake the examination of any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance law or practice and procedure to determine whether or not these are repugnant to the Shari’ah and to make recommendations to bring such laws, practices and procedure in conformity with the Shari’ah and

(d) to monitor progress in respect of the Islamization of economy, identifying lapses and bottlenecks, if any, and suggest alternatives to remove any difficulty.
(4) The Commission shall oversee the process of elimination of Riba form every sphere of economic activity in the shortest possible time and also recommend such measures to the Government as would ensure the total elimination of Riba from the economy.

(5) The Commission shall submit its reports on a regular basis and at suitable intervals to the Federal Government which shall place the same before both the Houses of Majlis-e-Shoora (Parliament) and shall also respond to any queries sent to it by the Federal Government in respect of establishment of the Islamic economic order.

(6) The Commission shall have the power to conduct its proceedings and regulate its procedure in all respects as it may deem fit.

(7) All executive authorities, institutions and local authorities shall act in aid of the Commission.

(8) The Ministry of Finance in the Government of Pakistan shall be responsible for the administrative matter relating to the Commission.

9. Mass media to promote Islamic values.

(l) The State shall take steps to promote Islamic values through the mass media.
(2) The publication and promotion of programs against or in derogation to the Shari’ah, including obscene material shall be forbidden.

10. Protection of life, liberty, property, etc.

In order to protect the life, honour, liberty, property and the rights of the citizens, the State shall take legislative and administrative measures to—

(a)  introduce administrative and police reforms;
(b) prevent acts of terrorism and sabotage and disruptive activities; and
(c) prevent the possession and display of illicit arms.

11. Elimination of bribery and corruption.

The State shall take legislative and administrative measures, to eliminate bribery, corruption and malpractices and provide for exemplary punishment for such offences.

12. Eradication of obscenity, vulgarity, etc

Effective legal and administrative measures shall be taken by the State to eradicate obscenity, vulgarity and other moral vices.

13. Eradication of social evils.

The State shall take effective measures for enactment of law eradicating social evils and promoting Islamic virtues on the principles of amr bil ma’roof wa nahi’ anil Munkar as laid down in the Holy Qur’an.

14. Nizami-i-adl.

The State shall take adequate measures for the Islamization of the judicial system by eliminating laws delays, multiplicity of proceedings in different Courts, litigation expenses and ensuring the quest for truth by the Court.

15. Bait-ul-Mal (Welfare Fund).

The State shall take steps to set up a Bait-ul-Mal for providing assistance to the poor, needy, helpless, handicapped, invalids, widows, orphans and the destitute.

16. Protection of the ideology of Pakistan, etc.

The State shall enact laws to protect the ideology, solidarity and integrity of Pakistan as an Islamic State.

17. Safeguard against false imputations, etc.

The State shall take legislative and administrative measures to protect the honour and reputation of the citizens against false imputations, character assassination and violation of privacy.

18. International financial obligations, etc.

Notwithstanding anything contained in this act or any decision of any Court, till an alternative economic system is introduced, financial obligations incurred and contracts made between a National Institution and a Foreign Agency shall continue to remain and be valid, binding and operative.

Explanation:— In this section, the expression “National Institution” shall include the Federal Government or a Provincial Government, a statutory corporation, company, institution, body, enterprise or any person in Pakistan and the expression “Foreign Agency” shall include a foreign government, a foreign financial institution, foreign capital market, including a bank and any foreign lending agency, including an individual and a supplier of goods, and services.

19. Fulfillment of existing obligations.

Nothing contained in this Act or any decision made thereunder shall affect the validity of any financial obligations incurred, including under any instruments, whether contractual or otherwise, promises to pay or any other financial commitments made by or on behalf of the Federal Government or a Provincial Government or a financial or statutory corporation or other institution to make payments envisaged therein, and all such obligations, promises and commitments shall be valid, binding and operative till an alternative economic system is evolved.

20. Rights of women not to be affected.

Notwithstanding anything contained in this Act, the rights of women as guaranteed by the Constitution shall not be affected.

21. Laws to be enacted by Majlis-e-Shoora (Parliament) and Provincial Assembly only.

Notwithstanding anything contained in this Act or the judgment or any Court, including the Supreme Court, all laws shall be enacted exclusively by the Majlis-e-Shoora (Parliament) and the Provincial Assembly, as the case may be, and no law shall be made or be deemed to have been made unless it is made in the manner laid down in the Constitution.

22. Rules.

The Federal Government may, by notification in the official gazette, make rules for carrying out the purposes of this Act.


 

SC requested Governor of Maharashtra to ensure that a floor test be held on 27.11.2019

Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately. All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m. Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same. Eight weeks time is granted to the learned counsel for the respondents to file their respective counter affidavits.

SHIV SENA AND ORS VS UNION OF INDIA AND ORS-26/11/2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1393 OF 2019

SHIV SENA AND ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS

ORDER

1. There is no gainsaying that the boundaries between the jurisdiction of Courts and Parliamentary independence have been contested for a long time.1 However, there is a need and requirement for recognizing institutional comity and separation of powers so as to tailor judicial interference in the democratic processes only as a last resort. This case pertains to one such situation, wherein this Court is called upon to adjudicate and maintain democratic values and facilitate the fostering of the citizens’ right of good governance.

2. Before we pass any orders, we need to make a brief reference to the factual aspects giving rise to the petition herein. It was well
known that there existed a pre­poll alliance between the


1 Erskine May, Parliamentary Practice, 25th edition, 321 (2019).


Bharatiya Janata Party [for short ‘BJP’] and the Shiv Sena, who contested the Fourteenth Maharashtra Legislative Assembly elections jointly. On 24.10.2019, the results for the aforesaid elections were declared and no single party had the requisite majority in the House. On 09.11.2019, the Governor called upon the BJP to indicate its willingness to form the Government, being the single largest party with 105 seats. However, the BJP declined to form the Government on 10.11.2019, as the alliance with the Shiv Sena allegedly broke down.

3. Subsequently, the Governor invited the Shiv Sena to form the Government. In this regard, the Shiv Sena is said to have shown its willingness to stake a claim to form the Government, claiming to have support of the majority. However, the aforesaid endeavor was not fruitful either. Thereafter, the Governor’s effort to seek the Nationalist Congress Party’s [for short ‘NCP’] willingness to stake a claim to form the Government was also not successful. Ultimately, the Governor recommended President’s Rule on 12.11.2019, which was imposed by a Presidential Proclamation on the same day.

4. It is brought to our attention that the Petitioners, i.e., Shiv Sena, NCP and the Indian National Congress [for short ‘INC’] were in discussion to form a coalition government during this period, and accordingly, a press conference is supposed to have been held on 22.11.2019 regarding the same.

5. It has been canvassed before us that at 5:47 a.m., on 23.11.2019, the President’s Rule was revoked in exercise of powers conferred by clause (2) of Article 356 of the Constitution. Thereafter, the Governor, by letter dated 23.11.2019 invited Respondent No. 3 to form the Government. The oath of office and secrecy was administered accordingly to Respondent Nos. 3 and 4 at around 8.00 a.m. on 23.11.2019 at Raj Bhavan, Mumbai.

6. Aggrieved by the Governor’s action in calling upon Respondent No. 3 to form the Government, the Petitioners have approached this Court under Article 32 of the Constitution on 23.11.2019 with the following prayers:

“a. Pass an appropriate writ/order/direction declaring that action/order of the Hon’ble Governor dated 23.11.2019 inviting Shri Devendra Fadnavis to form the Government on 23.11.2019 as unconstitutional, arbitrary, illegal, void­ab­initio, and violative of Article 14 of Constitution of India; and accordingly quash the same;

b. Pass an appropriate writ/order/direction to the Hon’ble Governor to invite the alliance of Maha Vikas Aghadi comprising of the Shiv Sena, Indian National Congress and the Nationalist Congress Party which has the support of more than 144 MLAs to form the Government under the leadership of Shri. Uddhav Thackeray;

…”

7. At this juncture, it is necessary to extract some of the prayers for interim directions sought by the Petitioners in the present petition:

“a. Issue appropriate directions in terms of summoning a special session of the
Fourteenth Maharashtra Legislative Assembly with the only agenda of administering oath to the MLAs, immediately followed by the holding of a floor test on 24.11.2019;

d. Issue appropriate directions in terms of the order dated 24.02.1998 passed by this Hon’ble Court in Jagadambika Pal (supra) as well as Harish Chandra Singh Rawat (supra) directing that the proceedings of the House be video recorded and a copy of the video recording be placed on record of this Hon’ble Court;

e. Issue appropriate directions appointing a pro­ tem Speaker to preside over the conduct of the floor test;”

8. Further, the Petitioners have filed an affidavit indicating the urgency and requirement for hearing the matter on 23.11.2019 itself. Accordingly, the Hon’ble Chief Justice was pleased to place the matter before this Bench and the matter was heard on 24.11.2019 (Sunday) at 11:30 a.m. After hearing the parties, this Court passed the following order: “Issue notice.

It was brought to our notice by the learned Senior counsels appearing for the petitioners that they have served the respondents through e.mail. However, there is no representation for Respondent Nos.2, 3 and 4.

Mr. Tushar Mehta, learned Solicitor General appearing for the Union of India is willing to produce the relevant record, if necessary, from the Governor also.

Mr. Mukul Rohatgi, learned Senior counsel who is appearing for some BJP MLAs and two independent MLAs, who are not parties to this Writ Petition, opposed the entertaining of the Writ Petition as well as passing of any order.

We have taken note of all the arguments, particularly the argument that the Governor’s decision dated 23­11­2019 inviting the Respondent No.3 to form a

Government on 23­11­2019 is unconstitutional. With regard to the second prayer as at `b’, we are not going to consider the same at present. As adjudication of the issues and also the interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr. Devendra Fadnavis

– Respondent No.3, even though none appeared for the State Government, we request Mr. Tushar Mehta to produce those two letters by tomorrow morning at 10.30 a.m. when the matter will be taken up, so that appropriate order will be passed.”

9. When the matter was taken up for hearing on 25.11.2019, the Solicitor General of India, produced the letters in compliance of the order of this Court dated 24.11.2019.

10. Heard the learned counsel appearing for both sides.

11. The learned Senior Counsel for Petitioner No. 1, Mr. Kapil Sibal submitted that prima facie, the action of the Governor revoking President’s Rule at 5:47 a.m. and administering the oath of office at around 8:00 a.m. reeks of mala fide. The learned Senior Counsel further submitted that Respondent No. 4 was never authorized to form the alliance with Respondent No. 3. Therefore, Respondent No. 3 must prove his majority on the floor of the House. For this purpose, as per established norms, the senior most member must be called for assuming the role of pro­tem Speaker, after which there must be an open ballot and the same should be captured in a video recording so as to ensure transparency.

12. Agreeing with the aforementioned submissions, learned Senior Counsel Dr. A.M Singhvi appearing for Petitioner Nos. 2 and 3 submitted that the Governor turned a blind eye by accepting the proposal of formation of the Government put forth by Respondent No. 3. The letter presented to the Governor, although allegedly signed by 54 elected members of the NCP, was unaddressed and did not have a covering letter or any other statement promising their alliance to the BJP. In the aforesaid context, the sole reliance on the aforesaid letter to prove majority was not prudent. Moreover, when both sides are agreeable to the conduction of a floor test, and an order directing the conduction of the same is not prejudicial to anyone, then there is no reason to defer the same.

13. On the other hand, learned Solicitor General submitted that the satisfaction of the Governor was based on the material placed before him, wherein it was indicated that Respondent No. 3 enjoyed the support of 105 elected members of the BJP, 54 elected members of the NCP and 11 independent elected members (170 in total). The Governor had, in his own wisdom, relied upon the letters of the Respondent Nos. 3 and 4 and he had no reason to disbelieve the same. The Governor is not obligated to conduct a roving enquiry into the same. The learned Solicitor General also contended that this Court cannot monitor the proceedings of the House as per the provision of Article 212 of the Constitution.

14. Adding to the aforesaid submissions, learned Senior Counsel Mr. Mukul Rohatgi appearing for Respondent No. 3 submitted that although a floor test is imperative, this Court cannot sit in appeal over the Governor’s order to set the dates for the floor test. It must be kept in mind that conducting a floor test is the discretion of the Speaker. In light of the above, no interim order can be passed in the aforesaid matter.

15. Lastly, learned Senior Counsel Mr. Maninder Singh appearing for Respondent No. 4 vehemently contended that the jurisdiction under Article 32 of the Constitution cannot be invoked in the present matter and the Governor’s independence should be respected.

16. We may note that, while the learned Solicitor General and learned Senior Counsel Mr. Mukul Rohatgi sought additional time to file affidavits in response, however we are of the opinion that the same might not be necessary at this stage.

17. Having heard the submissions of the learned counsel on the issues of maintainability, extent of judicial review and validity of the Governor’s satisfaction, we are of the opinion that they can be adjudicated at an appropriate time. There is no doubt that the contentions have to be answered, as the petitioners have raised questions concerning important constitutional issues touching upon the democratic bulwark of our nation. However, at this interim stage, we may note that it is imperative for this Court to be cognizant of the need to take into consideration the competing claims of the parties, uphold the democratic values and foster constitutional morality.

18. At the outset, we need to emphasize that recently, in the case of Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly, Writ Petition (C) No. 992 of 2019, this Court had emphasized the requirement of imbibing constitutional morality by the constitutional functionaries. Undemocratic and illegal practices within the political arena should be curtailed.

19. In this context, this Court in Union of India v. Shri Harish Chandra Singh Rawat, (2016) SCC OnLine SC 618, held as follows:

“8. … This Court, being the sentinel on the qui vive of the Constitution is under the obligation to see that the democracy prevails and not gets hollowed by individuals. The directions which have been given on the last occasion, was singularly for the purpose of strengthening the democratic values and the constitutional norms. The collective trust in the legislature is founded on the bedrock of the constitutional trust…”

20. In a situation wherein, if the floor test is delayed, there is a possibility of horse trading, it becomes incumbent upon the Court to act to protect democratic values. An immediate floor test, in such a case, might be the most effective mechanism to do so. A similar view was expounded by B.P. Jeevan Reddy, J., in the celebrated nine­Judge Bench decision of this Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1, wherein he held as follows:

“395. The High Court, in our opinion, erred in holding that the floor test is not obligatory. If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people — and not the Governor

— the position would be clear beyond any doubt….There could be no question of the Governor making an assessment of his own. The loss of confidence of the House was an objective fact, which could have been demonstrated, one way or the other, on the floor of the House. In our opinion, wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House except in an extraordinary situation where because of all­pervasive violence, the Governor comes to the conclusion — and records the same in his report — that for the reasons mentioned by him, a free vote is not possible in the House.”

(emphasis supplied)

21. This was also the opinion expressed by the Sarkaria Commission, Rajmannar Committee and the unanimous opinion expressed by the Committee of five Governors constituted by the President of India. In the aforementioned judgment, B.P. Jeevan Reddy, J., quoted the observations of the Committee of Five Governors with approval, as below:

“393.…The five Governors unanimously recommended that “the test of confidence in the Ministry should normally be left to a vote in the assembly … Where the Governor is satisfied, by whatever process or means, that the Ministry no longer enjoys majority support, he should ask the Chief Minister to face the Assembly and prove his majority within the shortest possible time… A Chief Minister’s refusal to test his strength on the floor of the Assembly can well be interpreted as prima facie proof of his no longer enjoying confidence of the legislature….”

22. Ex facie, Article 212 of the Constitution, relied on by the Respondents, would have no application as it relates to validity of proceedings in the Legislature of a State that cannot be called in question in any court on the ground of any alleged irregularity of procedure. Clause (2) states that no officer or member of the legislature of a State, in whom powers are vested by or under the Constitution for regulating the procedure, conduct of business or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of exercise of those powers by him. Sub­Article (2) has no application because no act of any officer or member of the Legislature of the State has been made the subject matter of the present Petition before this Court. This Court, nearly two decades back, in Jagdambika Pal v. Union of India, (1999) 9 SCC 95, had passed an order, after hearing counsel for the petitioner and the caveators, directing that a special session of the Uttar Pradesh Assembly will be summoned/ convened after two days on 26.02.1998 with the following directions:

“1. …

(ii) The only agenda in the Assembly would be to have a composite floor test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House.

(iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously.

(iv) The result of the composite floor test would be announced by the Speaker faithfully and truthfully.

2. The result is expected to be laid before us on 27­2­1998 at 10.30 a.m. when this Bench assembles again.

3. Ancillary directions are that this order shall be treated to be a notice to all the MLAs,

leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum, no major decisions would be made by the functioning Government except attending to routine matters, not much of any consequence.”

23. Six years later, in Anil Kumar Jha v. Union of India, (2005) 3 SCC 150, similar directions were passed by this Court after recording and taking notice of events that had taken place and few developments which were in the offing, as reported in the media, to observe and direct as follows:

“5. Though many a relief has been sought for in the writ petition, as also in the application for grant of ex parte stay, for the present, we are satisfied that a strong prima facie case on the averments made in the petition duly supported by affidavit, has been made out to issue the following interim directions and we order accordingly:

(1) The session of the Jharkhand State Assembly has already been convened for 10­3­2005 on which day the newly elected Members of the Legislative Assembly shall be administered oath. We direct the session to continue and on 11­3­2005 i.e. the next day and on that day the vote of confidence to be put to test.

(2) The only agenda in the Assembly on 11­3­2005 would be to have a floor test between the contending political alliances in order to see which of the political parties or alliance has a majority in the House and hence a claim for Chief Ministership.

(3) It is emphasised that the proceedings in the Assembly shall be totally peaceful, and disturbance, if any, caused therein shall be viewed seriously.

(4) The result of the floor test would be announced by the pro tem Speaker faithfully and truthfully.

(5) This order by the Court shall constitute notice of the meeting of the Assembly for 11­3­2005 and no separate notice would be required.

(6) Till 11­3­2005 there shall be no nomination in view of Article 333 of the Constitution and the floor test shall remain confined to the 81 elected members only.

(7) We direct the Chief Secretary and the Director General of Police, State of Jharkhand to see that all the elected Members of the Legislative Assembly freely, safely and securely attend the Assembly and no interference or hindrance is caused by anyone therein. Dr. A.M. Singhvi, learned Senior Counsel appearing for the State of Jharkhand through the Chief Secretary and the Director General of Police has very fairly assured the Court that even otherwise it is the duty of the State and its high officials to take care to do so and the direction made by the Court shall be complied with in letter and spirit.”

The aforesaid directions were interim in nature and were passed on the basis of averments made in the petition duly supported by an affidavit. Writ petitions were directed to be listed on the date of hearing fixed.

24. Ten years later, in Union of India v. Sh. Harish Chandra Singh Rawat, (2016) SCC Online SC 442, again an interim order was passed after the special leave petitions were taken up for hearing, though after concession which was made by Mr. Mukul Rohatgi, the then Attorney General for India, that the Union of India has no objection, which the Court had appreciated, to observe that the floor test should be conducted on a special session of Uttarakhand Legislative Assembly to be summoned/convened in which the only agenda would be the vote of confidence sought by the first respondent and apart from the said agenda nothing will be discussed. Directions were issued to the Chief Secretary and the Director General of Police, State of Uttarakhand, to see that all qualified Members of the Legislative Assembly, freely, safely and securely attend the Assembly and no hindrance is caused to them. The floor test was to commence at 11:00 a.m. and was directed to be completed by 1:00 p.m. There was another direction that the Confidence Motion having been put, a division of the House shall take place and members inclined to vote in favour of the Motion shall sit on one side/wing and those voting against the Motion shall sit on the other side/wing. The entire proceedings were to be video­graphed and video recording was directed to be placed before the Court for being perused. The special leave petitions were directed to be listed thereafter.

25. In Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758, the challenge raised was to a press note and communication from a leader of a party to the Governor of the State on the issue relating to whether a particular party had misrepresented the facts. Observing that the sensitive and contentious issue could be resolved by a simple direction requiring holding of the floor test at the earliest. This would remove all possible ambiguities and would result in giving the democratic process, the required credibility. By order dated 14.03.2017, the Governor of the State of Goa was requested to ensure that a floor test is held on 16.03.2017. Further, it would be the only agenda for the day so as to determine whether the Chief Minister administered the oath of office enjoys the support of the majority. The order further highlights that the floor test should be held as early as possible.

26. Lastly, we would refer to G. Parmeshwara v. Union of India, (2018) 16 SCC 46, wherein identical directions were issued in respect of formation of Government in the State of Karnataka to test whether the Chief Minister so appointed enjoyed the majority support of the House. Noticing the fact that the elected members of the Legislative Assembly, as in the present case, were yet to take oath and the Speaker was also not elected, the following procedure was directed to be followed for conducting the floor test:

“8…

(A) Pro­tem Speaker shall be appointed for the aforesaid purpose immediately.

(B) All the elected members shall take oath tomorrow (19­5­2018) and this exercise shall be completed before 4.00 p.m.

(C) The Pro­tem Speaker shall conduct the floor test on 19­5­2018 at 4.00 p.m. in order to ascertain the majority and it shall not be by secret ballot and these proceedings shall be conducted in accordance with law.

(D) Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements so that there is no lapse on this count whatsoever.”

It was directed that the floor test would be conducted immediately

the next date, i.e., the date following the order.

27. We may note that in the present case, oath has not been administered to the elected members even though a month has elapsed since the declaration of election results. In such emergent facts and circumstances, to curtail unlawful practices such as horse trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions in this case. In this context, it is necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not. Since the elected members of the Legislative Assembly are yet to take oath as specified in the III Schedule of the Constitution, and the Speaker is also yet to be elected, we request the Governor of the State of Maharashtra to ensure that a floor test be held on 27.11.2019.

The following procedure is to be followed for conducting the floor test:

a. Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately.

b. All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m.

c. Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot.

d. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.

28. Eight weeks time is granted to the learned counsel for the respondents to file their respective counter affidavits. Rejoinder affidavit, if any, is to be filed within four weeks thereafter. The matter to be listed after twelve weeks.

J. (N.V. Ramana)

J. (Ashok Bhushan)

J. (Sanjiv Khanna)

NEW DELHI;

November 26, 2019.

Law of the Twelve Tables-[451-450 B.C.E]

Lex Duodecim Tabularum

Table I. Proceedings Preliminary to Trial.

1. – If the plaintiff summons the defendant to court the defendant shall go. If the defendant does not go the plaintiff shall call a witness thereto. Only then the plaintiff shall seize the defendant.

2. – If the defendant attempts evasion or takes flight the plaintiff shall lay hand on him.

3. – If sickness or age is an impediment he who summons the defendant to court shall grant him a vehicle. If he does not wish he shall not spread a carriage with cushions.

4. – For a freeholder a freeholder shall be surety ; for a proletary anyone who wishes shall be surety.

5. – There shall be the same right of bond and of conveyance with the Roman people for a steadfast person and for a person restored to allegiance.

6. – When the parties agree on the matter the magistrate shall announce it.

7. – If they agree not on terms the parties shall state their case before the assembly in the meeting place or before the magistrate in the market place before noon. Both parties being present shall plead the case throughout together.

8. – If one of the parties does not appear the magistrate shall adjudge the case, after noon, in favor of the one present.

9. – If both parties are present sunset shall be the time limit of the proceedings.

10. – . . . sureties . . . subsureties . . . with platter and loincloth . . .

Table II. Trial.

1 a. – The penal sum in an action by solemn deposit shall be either 500 asses or 50 asses … It shall be argued by solemn deposit with 500 asses, when the property is valued at 1,000 asses or more, but with 50 asses, when the property is valued at less than 1,000 asses. But if the controversy is about the freedom of a person, although the person may be very valuable, yet the case shall be argued by a solemn deposit of 50 asses. . . .
1 b. – An action by demand for a judex . . . concerning that which is claimed in accordance with a stipulation . . . concerning division of an inheritance among joint heirs.

2. – . . . a serious sickness . . . or a day appointed for the hearing of a case with an alien . . . If any of these circumstances is an impediment for the judex or for the arbiter or for either litigant, on that account the day of trial shall be postponed.

3. – Whoever needs evidence shall go every third day to shout before the doorway.

Table III. Execution of judgment.

1. – Thirty days shall be allowed by law for payment of confessed debt and for settlement of matters adjudged in court.

2. – After this time the creditor shall have the right of laying hand on the debtor. The creditor shall hale the debtor into court.

3. – Unless the debtor discharges the debt adjudged or unless someone offers surety for him in court the creditor shall take the debtor with him. He shall bind him either with a thong or with fetters of not less than fifteen pounds in weight, or if he wishes he shall bind him with fetters of more than this weight.

4. – If the debtor wishes he shall live on his own means. If he does not live on his own means the creditor who holds him in bonds shall give him a pound of grits daily. If he wishes he shall give him more.

5. – . . . Meanwhile they shall have the right to compromise, and unless they make a compromise the debtors shall be held in bonds for sixty days. During these days they shall be brought to the praetor into the meeting place on three successive market days, and the amount for which they have been judged liable shall be declared publicly. Moreover, on the third market day they shall suffer capital punishment or shall be delivered for sale abroad across the Tiber River.

6. – On the third market day the creditors shall cut shares. If they have cut more or less than their shares it shall be without prejudice.

Table IV. Paternal Power.

1. – A notably deformed child shall be killed immediately.

2 a. – To a father . . . shall be given over a son the power of life and death.
2 b. – If a father thrice surrenders a son for sale the son shall be free from the father.

3. – To repudiate his wife her husband shall order her . . . to have her own property for herself, shall take the keys, shall expel her.

4. – A child born within ten months of the father’s death shall enter into the inheritance . . .

Table V. Inheritance and Guardianship.

1. – . . . Women, even though they are of full age, because of their levity of mind shall be under guardianship . . . except vestal virgins, who . . . shall be free from guardianship . . .

2. – The conveyable possessions of a woman who is under guardianship of male agnates shall not be acquired by prescriptive right unless they are transferred by the woman herself with the authorization of her guardian . . .

3. – According as a person has made bequest regarding his personal property or the guardianship of his estate so shall be the law.

4. – If anyone who has no direct heir dies intestate the nearest male agnate shall have the estate.

5. – If there is not a male agnate the male clansmen shall have the estate.

6. – Persons for whom by will . . . a guardian is not given, for them . . . their male agnates shall be guardians.

7 a. – If a person is insane authority over him and his personal property shall belong to his male agnates and in default of these to his male clansmen.
7 b. – . . . but if there is not a guardian for him . . .
7 c. – . . . Administration of his own goods shall be forbidden to a spendthrift. . . . A spendthrift, who is forbidden from administering his own goods, shall be . . . under guardianship of his male agnates.

8. – If a Roman citizen freedman dies intestate without a direct heir, to his patron shall fall the inheritance . . . from said household . . . into said household.

9. – Those items that are in the category of accounts due to the deceased . . . shall be divided among the heirs by ordinary operation of law in proportion to their shares of the inheritance. . . . Debts of the estate of a deceased shall be divided, according to law, among the heirs, proportionally to the share of the inheritance that each acquires.

10. – . . . Action for division of an estate shall be available for joint heirs wishing to withdraw from common and equal participation . . .

Table VI. Ownership and Possession.

1. – When a person makes bond and conveyance, according as he specified with his tongue so shall be the law.

2. – . . . It shall be sufficient to make good those faults that have been named by his tongue, while for those flaws that he has denied expressly, when questioned about them, the vendor shall undergo a penalty of double damages . . .

3. – Warranty of prescriptive right in land shall be for two years to acquire ownership. . . . Of all other things . . . prescriptive right shall be for one year to acquire ownership.

4. – Against an alien a warranty of ownership or of prescriptive right shall be valid forever.

5. – . . . If any woman is unwilling to be subjected in this manner to her husband’s marital control she shall absent herself for three successive nights in every year and by this means shall interrupt his prescriptive right of each year.

6 a. – If the parties join their hands on the disputed property when pleading in court . . .
6 b. – Both conveyance and surrender in court . . . shall be confirmed.

7. – . . . Interim possession shall be granted in favor of liberty.

8. – One shall not take from framework timber fixed in buildings or in vineyard . . . One shall be permitted neither to remove nor to claim stolen timber fixed in buildings or in vineyards, . . . but against the person who is convicted of having fixed such timber there an action for double damages shall be given.

9. – . . . Whenever the vines are pruned, until the timbers are removed . . .

Table VII. Real Property.

1. – . . . Clearance shall be two and one-half feet . . .

2. – . . . in an action for regulating boundaries . . .

3 a. – . . . inclosure . . . inherited plot . . .
3 b. – . . . cottages . . .

4. – Ownership by prescriptive right . . . shall not be within five feet.

5 a. – If they disagree . . .
5 b. – . . . Three arbiters shall regulate boundaries . . .

6. – The width of a road . . . shall be eight feet on a straight stretch, on a bend . . . sixteen feet.

7. – They shall build and repair the road : unless they keep it free from stones one shall drive one’s beast or carriage where one wishes.

8 a. – If rain water damages . . .
8 b. – If a watercourse conducted through a public place does damage to a private person the said person shall have the right to bring an action . . . that security against damage may be given to the owner.

9 a. – . . . Branches of a tree shall be pruned all around to a height of fifteen feet.
9 b. – If a tree from a neighbor’s farm has been felled by the wind over one’s farm, . . . one rightfully can take legal action for that tree to be removed.
10. – . . . It shall be lawful to gather fruit falling upon another’s farm.

11. – Articles sold . . . and delivered shall not be acquired by the purchaser, unless he pays the price to the seller or in some other way satisfies the seller, as, for example, by giving a surety or a pledge . . .

12. – A slave is ordered in a will to be a free man under this condition : ” if he has given 10,000 asses to the heir ” ; although the slave has been alienated by the heir, yet the slave by giving the said money to the buyer shall enter into his freedom. . .

Table VIII. Torts or Delicts.

1 a. – Whoever enchants by singing an evil incantation . . .
1 b. – . . . If anyone sings or composes an incantation that can cause dishonor or disgrace to another . . . he shall suffer a capital penalty.

2. – If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensation with him.

3. – . . . If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 asses ; or of 150 asses, if of a slave.

4. – If one commits an outrage against another the penalty shall be twenty-five asses.

5. – . . . One has broken . . . One shall make amends.

6. – If a quadruped is said to have caused damage an action shall lie therefor . . . either for surrendering that which did the damage to the aggrieved person . . . or for offering an assessment of the damage.

7. – If fruit from your tree falls onto my farm and if I feed my flock off it by letting the flock onto it . . . no action can lie against me either on the statute concerning pasturage of a flock, because it is not being pastured on your land, or on the statute concerning damage caused by an animal . . .

8 a. – Whoever enchants away crops . . .
8 b. – . . . Nor shall one lure away another’s grain . . .

9. – If anyone pastures on or cuts by night another’s crops obtained by cultivation the penalty for an adult shall be capital punishment and, after having been hung up, death as a sacrifice to Ceres . . . A person below the age of puberty at the praetor’s decision shall be scourged and shall be judged as a person either to be surrendered to the plaintiff for damage done or to pay double damages.

10. – Whoever destroys by burning a building or a stack of grain placed beside a house . .  shall be bound, scourged, burned to death, provided that knowingly and consciously he has committed this crime ; but if this deed is by accident, that is, by negligence, either he shall repair the damage or if he is unable he shall be corporally punished more lightly.

11. – Whoever fells unjustly another’s trees shall pay twenty-five asses for each tree.

12. – If a thief commits a theft by night, if the owner kills the thief, the thief shall be killed lawfully.

13. – By daylight . . . if a thief defends himself with a weapon . . . and the owner shall shout.

14. – In the case of all other . . . thieves caught in the act freemen shall be scourged and shall be adjudged as bondsmen to the person against whom the theft has been committed provided that they have done this by daylight and have not defended themselves with a weapon ; slaves caught in the act of theft . . . shall be whipped with scourges and shall be thrown from the rock ; but children below the age of puberty shall be scourged at the praetor’s decision and the damage done by them shall be repaired.

15 a. – The penalty for detected and planted theft shall be triple damages . . .
15 b. – . . . by platter and by loincloth . . .

16. – If a person prosecutes for theft which is not of the type wherein the thief is caught in the act … the thief shall settle the loss by paying double damages.

17. – Title to a stolen article . . . shall not be acquired by prescriptive right . . .

18 a. – . . . No person shall practice usury at a rate of more than one twelfth . . .
18 b. – . . . A thief shall be condemned for double damages and a usurer for quadruple damages.

19. – From a suit about an article deposited . . . an action for double damages shall be given.

20 a. – If guardians are suspect in their administration there shall be the right to accuse them as such . . .
20 b. – If . . . guardians steal a ward’s property . . . there shall be an action . . . against a guardian for double damages ; each guardian shall be held for the entire sum.

21. – If a patron defrauds a client he shall be accursed.

22. – Unless he speaks his testimony whoever allows himself to be called as a witness or is a scales-bearer shall be dishonored and incompetent to give or obtain testimony.

23. – . . . Whoever is convicted of speaking false witness shall be flung from the Tarpeian Rock.

24 a. – If a weapon has sped accidentally from one’s hand, rather than if one has aimed and hurled it, to atone for the deed a ram is substituted as a peace offering to prevent blood revenge.
24 b. – If anyone pastures on or cuts stealthily by night . . . another’s crops . . . the penalty shall be capital punishment, and, after having been hung up, death as a sacrifice to Ceres, a punishment more severe than in homicide.

25. – . . . for administering a drug.

26. – . . . No person shall hold nocturnal meetings in the City.

27. – These guild members shall have the power . . . to make for themselves any rule that they may wish provided that they impair no part of the public law . . .

Table IX. Public Law.

1/2. – Laws of personal exception shall not be proposed. Laws concerning capital punishment of a citizen shall not be passed . . . except by the Greatest Assembly . . .

3. – A judex or an arbiter legally appointed who has been convicted of receiving money for declaring a decision shall be punished capitally.

4. – . . . the investigators of murder . . . who have charge over capital cases . . .

5. – . . . Whoever incites a public enemy or whoever betrays a citizen to a public enemy shall be punished capitally.

6. – For anyone whomsoever to be put to death without a trial and unconvicted . . . is forbidden.

Table X. Sacred Law.

1. – A dead person shall not be buried or burned in the City.

2. – . . . More than this one shall not do : one shall not smooth a funeral pyre with an ax.

3. – . . . Expenses of a funeral shall be limited to three mourners wearing veils and one mourner wearing an inexpensive purple tunic and ten flutists. . . .

4. – Women shall not tear their cheeks or shall not make a sorrowful outcry on account of a funeral.

5 a. – A dead person’s bones shall not be collected that one may make a second funeral.
5 b. – An exception is for death in battle and on foreign soil.

6 a. – . . . Anointing by slaves is abolished and every kind of drinking bout . . . there shall be no costly sprinkling, no long garlands, no incense boxes . . .
6 b. – . . . A myrrh-spiced drink . . . shall not be poured on a dead person.

7. – Whoever wins a crown himself or by his property, by honor, or by valor, the crown is bestowed on him at his burial . . .

8. – . . . Nor gold shall be added to a corpse. But if anyone buries or burns a corpse that has gold dental work it shall be without prejudice.

9. – It is forbidden . . . to build a new pyre or a burning mound nearer than sixty feet to another’s building without the owner’s consent.

10. – It is forbidden to acquire by prescriptive right a vestibule of a sepulcher or a burning mound.

Table XI. Supplementary Laws.

1. – . . . There shall not be intermarriage between plebeians and patricians . . .

2. – . . . regulations concerning intercalation . . .

3. – . . . regulations concerning days permissible for official legal action . . .

Table XII. Supplementary Laws.

1. – . . . There shall be introduced a seizure of pledge against a person who buys an animal for sacrifice and does not pay the price ; likewise against a person who does not make payment for that animal which anyone lets to him for this purpose, that the lessor may spend money received therefrom on a sacred banquet, that is, on a sacrifice.

2 a. – If a slave commits a theft or does damage to property . . . .
2 b. – From delinquency of children of the household and of slaves . . . actions for damages shall be appointed, that the father or the master may be permitted either to undergo assessment of the claim or to deliver the delinquent for punishment . . .

3. – If one has obtained an unjustifiable grant of interim possession and if his adversary wishes . . . the magistrate shall grant three arbiters ; by their arbitration . . . the unjustifiable holder of interim possession shall settle the plaintiff’s loss of enjoyment of the thing by paying double damages.

4. – It is forbidden to dedicate for consecrated use a thing concerning whose ownership there is a controversy ; otherwise a penalty of double the value involved shall be suffered . . .

5. – . . . Whatever the people ordain last shall be legally valid.

Unplaced Fragments.

1. – Nancitor (shall obtain) in the Twelve Tables is the same as nactus erit (shall have obtained) or prenderit (shall have seized).

2. – Quando (when, since, et cetera) . . . in the Twelve Tables . . . is written with c as its last letter (quandoc).

3. – When sub vos placo (I beg you) is said almost exclusively in prayers it means that which supplico (I beseech) signifies, as in the laws transque dato (and he shall surrender) and endoque plorato (and he shall shout).

4. – Dolo malo (by malicious deception) : what . . . was added malo (malicious) . . . either is an archaism, because in the Twelve Tables it was written thus by the old writers, or is a constant epithet attached to dolus (deception) . . .

5. – The Twelve Tables indicates in several laws that it is allowed to appeal from any judgment and penalty.

6. – The ancestors wished no . . . bond for binding good faith to be firmer than a sworn oath. This the laws in the Twelve Tables indicate.

7. – Eight kinds of penalties are in the laws : fines, shackles, flogging, retaliation in kind, ignominy, exile, death, slavery . . .

8. – Formerly they used only bronze coins, and these were asses, double-asses, half-asses, quarter-asses ; nor any gold or silver coin was in use, just as we can understand from the Law of the Twelve Tables.

9. – By two negative words the law, as it were, permits rather than prohibits . . .

10. – Detestatum (having renounced under oath) means testatione denuntiatum (having renounced by attestation).

11. – During that very time almost, that I may speak like the decemvirs, a law concerning a limitation of thirty years had been promulgated.

12 a. – Duicensus (twice assessed, doubly assessed) in the Twelve Tables means deuteron apogegrammenos (registered a second time).

12 b. – A person was called duicensus (twice assessed, doubly assessed) when he was assessed with another, that is, assessed with his son.

13. – Only sunrise and sunset are mentioned in the Twelve Tables ; after several years was added also midday.


DUODECIM TABULARUM LEGES [Latin Text]

TABULA I

Si in ius vocat, ito. Ni it, antestamino. Igitur em capito.

Si calvitur pedemve struit, manum endo iacito.
Si morbus aevitasve vitium escit, iumentum dato.
Si nolet, arceram ne sternito.

Assiduo vindex assiduus esto.
Proletario iam civi quis volet vindex esto.

nex . . . forti sanati . . .

Rem ubi pacunt, orato. Ni pacunt, in comitio aut in foro ante meridiem caussam coiciunto.
Com peroranto ambo praesentes. Post meridiem praesenti litem addicito. Si ambo praesentes,
solis occasus suprema tempestas esto.

vades . . . subvades . . .

TABULA II

<Actor dicito:> ex sponsione te mihi . . . dare oportere aio. Quando tu negas, te praetor iudicem sive arbitrum postulo uti des.

. . . morbus sonticus . . . aut status dies cum hoste . . . quid horum fuit unum iudici arbitrove reove, eo dies diffissus esto.

Cui testimonium defuerit, is tertiis diebus ob portum obvagulatum ito.

TABULA III

Aeris confessi rebusque iure iudicatis XXX dies iusti sunto.

Post deinde manus iniectio esto. In ius ducito. Ni iudicatum facit aut quis endo eo in iure vindicit,
secum ducito, vincito aut nervo aut compedibus XV pondo, ne maiore aut si volet minore vincito.
Si volet suo vivito, ni suo vivit, qui eum vinctum habebit, libras faris endo dies dato. Si volet, plus dato.

Tertiis nundinis partis secanto. Si plus minusve secuerunt, se fraude esto adversus hostem aeterna auctoritas <esto>.

(Aulus Gellius, 20 I 46: Erat autem ius interea paciscendi ac nisi pacti forent habebantur in vinculis dies LX. Inter eos dies trinis nundinis continuis ad praetorem in comitium producebantur, quantaeque pecuniae iudicati essent, praedicabatur. Tertiis autem nundinis capite poenas dabant,aut trans Tiberim peregre venum ibant.)

TABULA IV

Si pater filium ter venum duit, filius a patre liber esto.

TABULA V

Uti legassit super pecunia tutelave suae rei, ita ius esto. Si intestato moritur, cui suus heres nec escit, adgnatus proximus familiam habeto. Si adgnatus nec escit, gentiles familiam habento.

(Gaius I .155: Quibus testamento…tutor datus non sit, iis lege XII [Tabularum] agnati sunt tutores.)

Si furiosus escit, adgnatum gentiliumque in eo pecuniaque eius potestas esto. . . . ast ei custos nec escit . .

Ex ea familia . . . in eam familiam.

TABULA VI

Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita ius esto.

Si qui in iure manum conserunt tignum iunctum aedibus vineave sei concapit ne solvito . . .. duplione . . . quandoque sarpta, donec dempta erunt.

(Gaius, I, 111: Lege XII tabularum cautum est, ut si qua nollet usu in manum mariti convenire, ea quotannis trinoctio abesset atque eo modo cuiusque anni [usum] interrumperet.)

TABULA VII

. . . ambitus . . . sestertius pes . . .

Si iurgant . . . tres arbitri . . .

Viam muniunto: ni sam delapidassint, qua volet iumento agito.

Si aqua pluvia nocet . . .

TABULA VIII

Qui malum carmen incantassit . . .

Si membrum rup<s>it, ni cum eo pacit, talio esto.

Manu fustive si os fregit libero, CCC <assium>, si servo, CL <assium> poenam subito si iniuriam faxsit, viginti quinque poenae <asses> sunto.

. . . rup<s>it . . . sarcito.

Qui fruges excantassit . . . neve alienam segetem pellexeris . . . <capite>. . . si nox furtum faxsit, si occisit, iure caesus esto.

Luci . . . si se telo defendit, . . . endoque plorato.

Lance et licio <ito>.

Si adorat furto, quod nec manifestum erit . . ., <duplione damnum decidito>.

Patronus si clienti fraudem fecerit, sacer esto.

Qui se sierit testarier libripensve fuerit, ni testimonium fatiatur, inprobus intestabilisque esto.

Si telum manu fugit magis quam iecit, <arietem subicito>.

TABULA IX

<privilegia ne inroganto.>

<de capite civis nisi per maximum comitiatum . . . ne ferunto.>

TABULA X

Hominem mortuum in urbe ne sepelito neve urito.

. . . hoc plus ne facito: rogum ascea ne polito.

Mulieres genas ne radunto neve lessum funeris ergo habento.

Homine mortuo ne ossa legito, quo post funus faciat.

Qui coronam parit ipse pecuniave eius honoris virtutisve ergoduitur ei . . .

Neve aurum addito. At cui auro dentes iuncti escunt. Ast in cum illo sepeliet uretve, se fraude esto.

TABULA XI

<conubia plebi cum patribus>

(Cicero. De Republica, II 36-37: Qui [Xviri] cum X tabulas summa legum aequitate prudentiaque conscripsissent, in annum posterum Xviros alios subrogaverunt…qui duabus tabulis iniquarum legum additis…conubia haec illi ut ne plebei cum patribus essent, inhumanissima lege sanxerunt.)

. . . dies intercalandi . . .

. . . dies fasti . . .

TABULA XII

Si servo furtum faxit noxiamve no<x>it.

Si vindiciam falsam tulit, si velit is . . . tor arbitros tris dato, eorum arbitrio . . . fructus duplione damnum decidito.


[451-450 B.C.E]

The Institutes of Justinian in Latin

Justinian

INTRODUCTION

IMPERATORIS IVSTINIANI INSTITVTIONVM

PROOEMIUM

IN·NOMINE DOMINI NOSTRI IESU CHRISTI.
IMPERATOR CAESAR FLAVIUS IUSTINIANUS ALAMANNICUS
GOTHICUS FRANCICUS GERMANICUS ANTICUS ALANICUS
VANDALICUS AFRICANUS PIUS FELIX
INCLITUS VICTOR AC TRIUMPHATOR
SEMPER AUGUSTUS CUPIDAE
LEGUM IUVENTUTI

Imperatoriam maiestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus et bellorum et pacis recte possit gubernari et princeps Romanus victor existat non solum in hostilibus proeliis, sed etiam per legitimos tramites calumniantium iniquitates expellens, et fiat tam iuris religiosissimus quam victis hostibus triumphator.

Quorum utramque viam cum summis vigiliis et summa providentia adnuente Deo perfecimus. et bellicos quidem sudores nostros barbaricae gentes sub iuga nostra deductae cognoscunt et tam Africa quam aliae innumerosae provinciae post tanta temporum spatia nostris victoriis a caelesti numine praestitis iterum dicioni Romanae nostroque additae imperio protestantur. omnes vero populi legibus iam a nobis vel promulgatis vel compositis reguntur. Et cum sacratissimas constitutiones antea confusas in luculentam ereximus consonantiam, tunc nostram extendimus curam et ad immensa prudentiae veteris volumina et opus desperatum, quasi per medium profundum euntes, caelesti favore iam adimplevimus.

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The Institutes of Justinian

Justinian

Institutiones

Natural, Common, and Civil Law: Institutes of Justinian

II. Natural, Common, and Civil Law.

The law of nature is that law which nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the earth, the air, or the water. Hence comes the union of the male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides men are considered as having knowledge of this law.

1. Civil law is thus distinguished from the law of nations. Every community governed by laws and customs uses partly its own law, partly laws common to all mankind. The law which a people makes for its own government belongs exclusively to that state and is called the civil law, as being the law of the particular state. But the law which natural reason appoints for all mankind obtains equally among all nations, because all nations make use of it. The people of Rome, then, are governed partly by their own laws, and partly by the laws which are common to all mankind. We will take notice of this distinction as occasion may arise.

2. Civil law takes its name from the state which it governs, as, for instance, from Athens; for it would be very proper to speak of the laws of Solon or Draco as the civil law of Athens. And thus the law which the Roman people make use of is called the civil law of the Romans, or that of the Quirites; for the Romans are called Quirites from Quirinum. But whenever we speak of civil law, without adding the name of any state, we mean our own law; just as the Greeks, when “the poet” is spoken of without any name being expressed, mean the great Homer, and we Romans mean Virgil.

The law of the nations is common to all mankind, for nations have established certain laws, as occasion and the necessities of human life required. Wars arose, and in their train followed captivity and then slavery, which is contrary to the law of nature; for by that law all men are originally born free. Further, by the law of nations almost all contracts were at first introduced, as, for instance, buying and selling, letting and hiring, partnership, deposits, loans returnable in kind, and very many others.

3. Our law is written and unwritten, just as among the Greeks some of their laws were written and others were not written. The written part consists of leges (lex), plebiscita, senatusconsulta, constitutiones of emperors, edicta of magistrates, and responsa of jurisprudents [i.e., jurists].

4. A lex is that which was enacted by the Roman people on its being proposed by a senatorian magistrate, as a consul. A plebiscitum is that which was enacted by the plebs on its being proposed by a plebeian magistrate, as a tribune. The plebs differ from the people as a species from its genus, for all the citizens, including patricians and senators, are comprehended in the populi (people); but the plebs only included citizens [who were] not patricians or senators. Plebiscita, after the Hortensian law had been passed, began to have the same force as leges.

5. A senatusconsultum is that which the senate commands or appoints: for, when the Roman people was so increased that it was difficult to assemble it together to pass laws, it seemed right that the senate should be consulted in place of the people.

6. That which seems good to the emperor has also the force of law; for the people, by the Lex Regia, which is passed to confer on him his power, make over to him their whole power and authority. Therefore whatever the emperor ordains by rescript, or decides in adjudging a cause, or lays down by edict, is unquestionably law; and it is these enactments of the emperor that are called constitutiones. Of these, some are personal, and are not to be drawn into precedent, such not being the intention of the emperor. Supposing the emperor has granted a favor to any man on account of his merit, or inflicted some punishment, or granted some extraordinary relief, the application of these acts does not extend beyond the particular individual. But the other constitutiones, being general, are undoubtedly binding on all.

7. The edicts of the praetors are also of great authority. These edicts are called the ius honorarium, because those who bear honors [i.e., offices] in the state, that is, the magistrates, have given them their sanction. The curule aediles also used to publish an edict relative to certain subjects, which edict also became a part of the ius honorarium.

8. The answers of the jurisprudenti are the decisions and opinions of persons who were authorized to determine the law. For anciently it was provided that there should be persons to interpret publicly the law, who were permitted by the emperor to give answers on questions of law. They were called jurisconsulti; and the authority of their decision and opinions, when they were all unanimous, was such, that the judge could not, according to the constitutiones, refuse to be guided by their answers.

9. The unwritten law is that which usage has established; for ancient customs, being sanctioned by the consent of those who adopt them, are like laws.

10. The civil law is not improperly divided into two kinds, for the division seems to have had its origin in the customs of the two states, Athens and Lacedaemon. For in these states it used to be the case, that the Lacedaemonians rather committed to memory what they observed as law, while the Athenians rather observed as law what they had consigned to writing, and included in the body of their laws.

11. The laws of nature, which all nations observe alike, being established by a divine providence, remain ever fixed and immutable. But the laws which every state has enacted, undergo frequent changes, either by the tacit consent of the people, or by a new law being subsequently passed.


Justice and Law: Institutes of Justinian

I. Justice and Law.

Justice is the constant and perpetual wish to render every one his due.

  1. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.
  2. Having explained these general terms, we think we shall commence our exposition of the law of the Roman people most advantageously, if we pursue at first a plain and easy path, and then proceed to explain particular details with the utmost care and exactness. For, if at the outset we overload the mind of the student, while yet new to the subject and unable to bear much, with a multitude and variety of topics, one of two things will happen—we shall either cause him wholly to abandon his studies, or, after great toil, and often after great distrust to himself (the most frequent stumbling block in the way of youth), we shall at last conduct him to the point, to which, if he had been led by an easier road, he might, without great labor, and without any distrust of his own powers, have been sooner conducted.
  3. The maxims of law are these: to live honestly, to hurt no one, to give every one his due.
  4. The study of law is divided into two branches; that of public and that of private law. Public law regards the government of the Roman empire; private law, the interest of the individuals. We are now to treat of the latter, which is composed of three elements, and consists of precepts belonging to the natural law, to the law of nations, and to the civil law.


 

SC : Interim prayers sought by Shiv Sena to conduct floor test within 24 hours have to be considered after perusing order of Governor -24/11/2019

SUPREME COURT OF INDIA JUDGMENTS

The interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr. Devendra Fadnavis

SHIV SENA & ORS VS UNION OF INDIA & ORS-24/11/2019

ITEM NO.301 COURT NO.2 SECTION X

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Writ Petition(s)(Civil) No(s).1393/2019

SHIV SENA & ORS. PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. RESPONDENT(S)

(FOR ADMISSION and IA No.179675/2019-APPROPRIATE ORDERS/DIRECTIONS)

Date : 24-11-2019

This petition was called on for hearing today.

CORAM :

HON’BLE MR. JUSTICE N.V. RAMANA
HON’BLE MR. JUSTICE ASHOK BHUSHAN

HON’BLE MR. JUSTICE SANJIV KHANNA

For Petitioner(s)

Mr.Kapil Sibal, Sr.Adv. Dr.Abhishek Manu Singhvi, Sr.Adv. Mr.Devadatt Kamat, Sr.Adv. Mr.Majeed Memon, Sr.Adv. Mr.Sunil Fernandes, AOR Mr.Muhammad Ali Khan, Adv. Mr.Rajesh Inamdar, Adv. Ms.Nupur Kumar, Adv. Mr.Javedur Rahman, Adv. Mr.Aditya Bhat, Adv. Mr.Ashwain Raj, Adv. Ms.Srinidhi Rao, Adv. Mr.Ali Rahim, Adv. Ms.Priyansha Indra Sharma, Adv. Ms.Anju Thomas, Adv. Mr.Darpan Sachdeva, Adv. Mr.Nishant Patil, Adv. Mr.Ashok Basoya, Adv. Mr.Hemant Shah, Adv. Mr.Shriram Pingle, Adv. Mr.Prastut Dalvi, Adv. Ms.Kajal Dalal, Adv. Mr.Amit Bhandari, Adv. Mr.Rahul Kaushik, Adv.

For Respondents:

Mr.Tushar Mehta, SG

Mr.Rajat Nair, Adv.
Mr.Kanu Agrawal, Adv.

Mr.Manan Popli, Adv.

Mr.Rajeev Ranjan, Adv.
Mr.Shantanu Sharma, Adv.

Mr.Bhuvan Kapoor, Adv.
Mr.B.V.Balaram Das, aor

Mr.Mukul Rohatgi, Sr.Adv.
Mr.Saurabh Kirpal, Adv.

Ms.Ranjeeta Rohatgi, AOR
Ms.Diksha Rai, Adv.

Ms.Misha Rohatgi, Adv.

Ms.Devanshi Singh, Adv.
Mr.Vamshi Rao, Adv.

Ms.Samten Doma, Adv.
Mr. Samrat Shinde, Adv.

Mr. Anand Dilip Landge, AOR

Mr. Debasis Misra, AOR

Mr. Vishaal S. Jogdand, Adv.
Mr. Suhas Kadam, Adv.

Mr. Shreyas Gacche, Adv.
Mr. Jagdev, Adv.
Mr. R.C. Paul Kanak Raj, Adv.

Ms. Pareena Swarup, Adv.
Dr. Santan Ray Choudhari, Adv.
Mr. R. Sharath, Adv.
Mr. R.S. Jha, Adv.
Mr. Bijay Kumar Jha, Adv.

Mr. Manav, Adv.
Ms. Nanita Sharma, Adv.
Ms. Alpana Sharma, Adv.
Mr. M.S. Vinayak, Adv.
Mr.Jay Prakash Somani, Adv.

Mr. Choudhari Samsuddin Khan, Adv.
Mr. Rajnish Kumar, Adv.
Ms. Meera Bhatia, Adv.

UPON hearing the counsel the Court made the following

ORDER

Issue notice.

It was brought to our notice by the learned Senior counsels appearing for the petitioners that they have served the respondents through e.mail. However, there is no representation for Respondent Nos.2, 3 and 4.

Mr. Tushar Mehta, learned Solicitor General appearing for the Union of India is willing to produce the relevant record, if necessary, from the Governor also.

Mr. Mukul Rohatgi, learned Senior counsel who is appearing for some BJP MLAs and two independent MLAs, who are not parties to this Writ Petition, opposed the entertaining of the Writ Petition as well as passing of any order.

We have taken note of all the arguments, particularly the argument that the Governor’s decision dated 23-11-2019 inviting the Respondent No.3 to form a Government on 23-11-2019 is unconstitutional. With regard to the second prayer as at `b’, we are not going to consider the same at present. As adjudication of the issues and also the interim prayers sought by the petitioners to conduct floor test within 24 hours has to be considered after perusing the order of the Governor as well as the letters submitted by Mr. Devendra Fadnavis – Respondent No.3, even though none appeared for the State Government, we request Mr. Tushar Mehta to produce those two letters by tomorrow morning at 10.30 a.m. when the matter will be taken up, so that appropriate order will be passed.

(VISHAL ANAND)
COURT MASTER (SH)

(ANAND PRAKASH)

BRANCH OFFICER