In this article, Aditya Shrivastava, marketing executive at iPleaders discusses how to choose legal internships.

While in law school, most of us struggle with one major fear throughout the 5 years – to secure a good internship.

A bigger struggle is – with so many companies, firms, start-ups, and lawyers – where should one go. At one hand the opportunities almost seem inaccessible as most of the high profile places do not even reply to the emails, HRs are inhospitable on the calls, and nothing seems to work till you use a recommendation. On the other hand, there is always a constant contemplation whether to take the internship which has been offered.

Irrespective of the situation, the truth is that internships are perhaps the best to improve your chances of getting a job or a pre-placement offer. It gives you a hands-on experience in the area you want to specialize in, boosts your contacts, creates a desirable network and helps you adjust to the corporate set up.

Have you ever thought what it would be like if you could hand pick your own internships?

Can you imagine if you apply to organisations and receive an acceptance without much hassle?

Can you be the one selecting a firm that suits your needs and not the other way round?

All these questions might sound very eutopic but it is very much possible. The first question is: How do you select which is the right internship for you? Do you put in sufficient effort for zeroing down a place to intern?

Here are some of the ways in which you can decide what is the best place for you to intern:

1. Have An Objective

The very first step to decide on an internship is my determining what do you expect to gain from it. Are you looking to get a hands-on experience in the area you are trying to make your career in, just seeking a brand name on your CV or focussing on a specific skill-set?

There are huge possibilities that a big law firm or a company might not help you in developing your skill-set. You might learn the intricate nuances of litigation under an able lawyer who might not have a huge brand name and learn nothing at all while working with a litigation law firm. It is for you to set your priority straight. You need to avoid being blinded by alluring brand names and your peers. You need to concentrate on what you want – to learn or to have a big brand name on your resume.

A small tip – you need to know that an employer might not be concerned about where you have interned. He would be interested in what you have learnt in the course of your internship. The chances of being recruited by a smaller firm or company are way higher than a huge brand name. As you begin applying at organisations, it is important that you research first – what do you want to do and who can provide it to you.

At iPleaders we get numerous applications each day for our internship program, with people calling our office a “firm”, and seeking internships to become better lawyers. Our internship program helps you become a better researcher and writer – a skill which is needed by everyone in the industry but acquired by a few. However, the point is that we are not a law firm.

These are few basics that not many teach you. However, if you ask any of our Ace Your Internship Program students, they will clearly know what kind of application to send where. Their objectives are crystal clear and they exactly know what they need to do to get the recruiter’s attention in the blink of an eye for all the right reasons. Do you think you can do that?

2. Are Paid Internships Better?

It is understandable that for a student it might be extremely important to manage funds and get some extra pocket money. However, think it over from this perspective. Are few extra bucks more important than a place to learn or perform? Is some extra pocket money better than a secure career?

We all like some extra money. Finances clubbed with a good experience is always better. However, if you are getting an unpaid internship where you can learn more, always opt for that. A couple of friends in the industry tell me that every time they post an internship opportunity with stipend their inboxes flood with applications. However, in case of an unpaid internship, the response is very cold.

Did you know that legal internships are not always paid? You’d be lucky to find internships where they remunerate you to teach you. This is more so a case when it comes to mid-level law firms or government internships. Most of the employers believe in testing your skills and getting their work done. However, if you perform well, chances are they might give you a job too. At iPleaders, we believe in target- based internships; if the interns achieve it, they get paid. If they don’t, they don’t get paid.

Having said that, it’s always nice to be paid. In a recent study by the National Association of Colleges and Employers, close to two-thirds of college graduates who worked at a paid internship eventually received a job offer, compared to slightly more than one-third of those working at unpaid internships.

Have you ever thought what you could do to get a paid internship when there are hundreds of students wanting to get through the same place? Have you ever wondered how can you score an internship that gives you the best of both worlds? If I were you, I would opt for this course.

As a tip, just choose whichever internship will help you in the long run.

3. Figure Out The Structure

Now that you have figured out the ideal place to intern, find out what structure is in place for the interns. You need to research and figure out what kind of interns the company looks at. Get a gist of what the company is to offer you in terms of learning experience, expectations, and most importantly the future possibilities that are in store for you.

This can be done by asking the HR Department or any other person who is responsible to hire interns. There are high possibilities of a small firm to not have any such structure, but you need to ensure, whether you will be provided with the relevant experience or not.

4. Should You Opt For Smaller Organisations?

To decide whether interning at a large company would be more impactful or at a smaller place does not come easy. It is obvious that a big company will come with a brand name and recognition that might provide you with an opportunity to work with more experienced individuals. You might get to network more and get better exposure as compared to a larger law firm or company. Your work responsibilities would naturally be more than a first-year associates responsibility at a big law firm due to the hierarchy that is followed in such law firms.

The work environment in a larger company might be more competitive. You might find it difficult to make a place for yourself or getting noticed may take longer than you expected. It might even take you a while to interact with the senior associates. However, that might not be the case at a smaller firm or company.

You can choose a smaller organisation and get a hands-on feel of how they usually  work. Although, it is possible that you may not get a benefit from the name of the brand, however, you are most likely to get unparalleled work experience.

How To Make The Choice?

The answer to this is pretty simple. You need to be credible enough to be able to become the first choice. This is very much possible. Numerous students who took up this online course were able to get to the organisations of their choice. This course enabled them to reach a level where they were able to get the internships of their choice and perform better than their peers.

It does not matter how long you take to find the right kind of internship, but how you perform after you get one is what counts in the end. You need to give your best shot and be on your toes all the time. Concentrate less on your physical appearance and be mentally prepared for any kind of challenge put to you.

Remember: a good impression, once made, will always help you.

All the luck!

In this article, Smita Singh discusses Arbitration in landlord and tenant disputes.

Lease of immovable property

Transfer of Property Act 1882, a central legislation, contains the general law governing lease of immovable property.[1] It specifies the rights and liabilities of landlord and tenant, in absence of contract to the contrary[2]. It also stipulates how the tenancy will come to an end.[3] After tenancy comes to end, in case the tenant fails to vacate the tenanted premises, the landlord is required to file civil suit for ejectment to obtain possession.

State enacted Rent Acts

Several States have enacted Rent or Tenancy laws[4] which regulate the rights and obligations of landlord and tenant. These laws have social objective of protecting the interest of certain class of tenants. Such protection is afforded usually based on quantum of rent or the nature, size or location of tenanted premises), so as to prevent arbitrary evictions from tenanted properties. Such legislation override the inconsistent provisions of Transfer of Property Act as well as terms of contract between landlord and tenant. These special laws often exclude ordinary jurisdiction of civil courts. Instead, they confer exclusive jurisdiction to special courts to adjudicate specified disputes between landlord and tenant including the grounds on which tenants could be ejected.

Arbitration in landlord and tenant disputes

Under the Arbitration and Conciliation Act 1996 (Arbitration Act), an arbitral award will be set aside if “the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force”[5].

The Supreme Court for long maintained that ehe Supreme Court where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the dispute, are non-arbitrable[6].

It has held that when under a special statute (for instance Rent or Tenancy statutes), exclusive jurisdiction is given to special court by denying jurisdiction to other courts, the parties by agreeing for arbitration could not opt out of the rights conferred under such special statutes or oust the jurisdiction of special courts.

In cases where the scheme of a statute show that pursuant to a social objective exclusive jurisdiction is conferred on special courts, the public policy has been construed to require that contracts to the contrary that nullify the rights conferred on beneficiaries of such statute including contract for arbitration by ousting jurisdiction of Special Courts, to be impermissible[7].

Decisions of Supreme Court[8] show that a dispute is considered incapable of arbitration only if following three conditions are fulfilled:

i) The matter is governed by a special statute;

ii) Under such special statute the tenant enjoys statutory protection against ejectment; and

iii) Such special statute confers exclusive jurisdiction on specified Courts.

The view of Supreme Court as aforesaid did not make every dispute between a landlord and tenant, incapable of adjudication through arbitration.

DICTUM OF SUPREME COURT IN HIMANGNI ENTERPRISES V. KAMALJEET SINGH AHLUWALIA

Recently however in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 the Supreme Court has ruled that even in respect of premises to which the application of special Rent Act is exempted, the parties could not enforce arbitration, even though they had agreed to get their disputes concerning such premises adjudicated through arbitration. Consequently, it is held that the civil suit filed by one of the parties, by giving a goby to an arbitration agreement is maintainable. It is held:

“24. The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the civil court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises.”

THE PROBLEM

In humble submission of the author, the decision that even if tenanted premises/landlord-tenant relationship is governed by the Transfer of Property Act, the civil suit would be triable by the civil court and not by the arbitrator, appears to be inconsistent with the previously held view[9].

The rationale that Arbitration Act will not apply since the exemption from application of Rent Act to a premises could be withdrawn in future, appears to miss the point that a tenancy matter is considered incapable of determination by arbitration only if it is governed by a special statute; under such special statute the tenant enjoys statutory protection against ejectment; and such special statute confers exclusive jurisdiction on specified Courts.

So long as the matter is governed by general law, irrespective of any likelihood of special Rent Act becoming applicable in future, it remains capable of arbitration. Mere potential application of special law does impact the arbitrability of a dispute. In case of exemption from the application of special law being withdrawn the matter though may become incapable of arbitration, so long as exemption is available, the parties are free to agree to arbitration as dispute resolution mechanism as an alternative to civil court. Such agreement should be enforceable if while recourse is taken to arbitration proceedings, the exemption from special statute is available.

It is very common for many commercial and other leases to which application of Rent /Tenancy statutes is exempted, to contain an arbitration agreement. Landlord and tenant agree to arbitration clause so as to resolve their disputes by recourse to arbitration which could be expeditious and cost effective compared to traditional civil courts.

THE WAY FORWARD

Unless the position as regards the validity /enforceability of arbitration clause in tenancies governed by general law, is clarified to restore the previously prevailing view, the parties inspite of arbitration agreement, will be compelled to take recourse to time consuming and expensive ordinary civil proceedings. They are also likely to indulge in litigation over enforceability of arbitration agreement. This could be counterproductive.

References

[1] Chapter V of Transfer of Property Act 1882 comprising sections 105 to 117

[2] Section 108

[3] Section

[4] For instance Karnataka Rent Act 1999

[5] Sections 34(2)(b) and 48(2)

[6] Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532

[7] Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523 and Ranjit Kumar Bose v. Anannya Chowdhury (2014) 11 SCC 446

[8] Ibid 6 and 7

[9] Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523 and Ranjit Kumar Bose v. Anannya Chowdhury (2014) 11 SCC 446

In this article, Syed Jeelan does a Critical Analysis of Muslim Marriage Law Bill, 2017.

Most distasteful and hideous modes of Talaq coined as Triple Talaq, Talaq-ul-biddat, or Talaq-e-bidat now being made void with the audacious efforts made by the Government on a very urgent and ad-hoc basis legislating and criminalizing Triple Talaq as void and punishable, which is the outcome of Supreme Court verdict in Shairabanu Vs. Union of India paving way to pass a legislation bill on the Muslim Women (Protection of rights on Marriage) Bill 2017.

The preamble of the Act says to protect the rights of married Muslim women and to prohibit divorce by pronouncing Talaq by their husbands and to provide for matters connected therewith or incidental thereto.

Apart from making the triple Talak void the act aims to provide:

• Subsistence allowance from the husband for the livelihood
• Custody of minor children.
• Daily supporting needs of:
  • The wife, and
  • Dependent children

The Preamble says to protect the rights of married Muslim women, the protection mentioned in the preamble is extended to Muslim women and till now no law is made protects the rights of married women whose marriage is in existence whether in Hindu or Christian. As the question of rights arose only on divorce and so far there are enactments made only for divorced women and not for those whose marriage is in existence.

The Muslim Women (Protection of rights on marriage) Bill 2017 made the pronouncement of Talaq:

• Void, and
• Maintain the existence of the marriage

The Preamble has been conveniently drafted to accommodate all sorts of Talaq in further as it reads to prohibit divorce by pronouncing talaq by husbands and it did not restrict the preamble by confining or substituting the word Talaq with Triple Talaq or by pronouncing the Triple Talaq in place of Talaq.

Sec 2(b) of the Muslim Women (Protection of rights on marriage) Bill 2017 define Talaq as means Talaq-e-bidat or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

Any other similar form of Talaq is not defined and the entire community and the Shariat and the Supreme Court has also identified only three forms of Talaq even in its verdict stated supra where only husband alone exercises option i.e

• Talaq-ul-Hasan,
• Talaq-e-Hasan, and
• Talaq-e-bidat

All the forms of Talaq have irrevocable effect irrespective of time, on the last pronouncement of Talaq.

Muslim Marriage Law Bill, 2017

The Historical Background of Talaq-ul-biddat is depicted by Ameer Ali as its name signifies the mode of divorce:

• The heretical, or
• Irregular mode

It was introduced in the second century of the Mohammedan era, the Omayyad monarchs finding that the checks imposed by Prophet Mohammed (PBUH) on the facility of repudiation interfered with the indulgence of their caprice, endeavored to find an escape from the strictness of law and found a loophole to effect their purpose.[1]

1. Hazrat Ibn Abbas (R.A) reports that in the period of Prophet of Allah (PBUH) and the Caliphate of Hazrat Abu Bakar (R.A.) and initial two years of the caliphate of Hazrat Umar (R.A.) if somebody used to pronounce divorce thrice, it used to be counted as one only. The Hazrat Umar (R.A.) said that people are acting in too much of haste since they were getting so much gap, he enforces the divorce on Muslims.[2]
2. There was a period when there was a steep increase in the number of women prisoners of war coming from Iraq and Syria who were known for their beauty and charm. Arab citizens were so much fascinated with these women and they started pronouncing three divorces in one go, and in Arab they could choose the new women. These women had no knowledge of the rules of Shariat, were convinced and married by the Arab men.
3. When the Arab men revert to their earlier wives, the lots of misunderstanding and disputes took place in the families which led to the unpleasant situations. To overcome the deterioration of the situation Hazrat Umer (R.A.) declared the three pronouncements of divorce at one go as equivalent to three divorces and made the divorce effective. Hazrat Umer (R.A) has taken this step to tackle a special situation and out of administrative exigencies and the Caliph of the time is empowered under the special circumstance to temporarily suspend certain commandments which unfortunately has become a practice and now requires a statute to abolish the same.
4. Hence it is to be understood that though Triple Talaqs is given in one instance it used to be considered as only one and it is only for temporary period Umer for administrative purposes and to have deterrent effect on Muslim men to avoid divorcing their wives has made it as effective otherwise the Triple Talaq used to be treated as only one and the husband can take back his wife without Halala. Triple Talaq has no effect and it will be declared void.

Talaq will be void and illegal if the pronouncement satisfies any of the following condition precedent

1. The bill containing chapter II Declaration of Talaq to be Void and Illegal if any pronouncement of Talaq by a person upon his wife, by words:
   1. in electronic form
   2. spoken, or
   3. written, or
   4. in any other manner whatsoever, shall be void and illegal.
2. Sec 2(b) defines Talaq or Talaq-e-bidat and also contains any other similar Form of Talaq. Any other similar form of Talaq is neither defined nor explained in the Bill. Even otherwise Muslim men were left only with other two forms of Talaq:
   1. Talaq-ul-Hasan, and
   2. Talaq-e-hasan
3. The word Talaq is a generic word for divorce which used for all sorts of Talaq. Section 3 barred all the modes of talaq which are adopted by Muslim men. The preamble itself bars other modes of Talaq i.e:
   1. To protect the rights of married Muslim women,
   2. To prohibit divorce by pronouncing talaq by husband, and
   3. To provide for matters connected therewith or incidental thereto.
4. The preamble prohibiting divorce by pronouncing Talaq. The Preamble should have contained to prohibit divorce by pronouncing Triple Talaq in single sentence or Talaq-e-bidat.

Criminalizing the Talaq

Section 3

Section 3 says Talaq by a husband to his wife shall be punishable with imprisonment for a term which may extend to three years and fine.

Muslim marriage is a contract

Muslim Marriage is a contract wherein all the ingredients of Sec 10 of Contract Act are present here i.e:

• Two Parties (Bride and Bridegroom),
• Competency
• Free consent

Both the parties will be asked thrice and give their consent and Maher (which is the consideration for the lawful object of Marriage) and the contract into writing called Nikahnama is executed by both Parties i.e wife and a husband. There should at least one witness from each party and an independent person (Vakil) shall be present and signature should be done by the wife and the husband on nikahnama. Thus Marriage under Muslim law is a pure contract.

The bill has made a mere pronouncement of Talaq a Crime and Punishment up to 3 years will be awarded (though it will not repudiate the marriage). The Legislation does not define the quantum of Fine and it depends on the Powers of First Class Magistrate to be imposed i.e maximum Fine of Rs.5000/-

Restitution of Conjugal Rights

In Muslim law, a civil suit has to be filed in the Munsif Court and Court fee on nominal value to be filed. Further, a suit alone to be filed for divorce by a Muslim wife under Dissolution of Muslim Marriage Act 1939.

Many a time the judiciary has witnessed numerous cases challenging the validity of Talaq-ul-bidat. But all the decisions have rendered the concept of Triple talaq as valid though it is sinful in theology.

Patna 81 F.B. Fazlur Rahman Vs. Mt. Aisha & Ors A.I.R. 1929

Wherein the Advocate appearing for the appellant made strenuous effort to bring before the judiciary illegality of Talaq-ul-bidat. In this case it was brought before the judiciary an instance from Hades which was referred by Ameer Ali as quoted that “when once news was brought to him Prophet (PBUH) that one of the disciples had divorced his wife, pronouncing the Triple Talaq at one and the same time the Prophet stood up in anger on his carpet and declared that the man was making a plaything of the words of God, and made him take back his wife”.

It was conceded by the learned counsel for the Appellant that it was the son of the 2nd Caliph Omar who was concerned in the incident referred to by Mr. Ameer Ali.[3]

Here it is to be noted that even though the disciple of Prophet tried to divorce his wife by pronouncing Triple Talaq at once and the same time the Prophet made him take back his wife so it indicates that there is no divorce at all and wife can be taken back without halala. Prophet has punished the person who gave triple Talaq. The legislation is being been made criminalizing the Talaq.

Why Indian Muslim husband resort to Triple Talaq

In India, many of the Muslims are not aware of the Different Modes of Talaqs due to which Muslim Husband resorts to Triple Talaq. Even otherwise if the Muslim Husband wants to pronounce Talaq by adopting other Modes i.e Talaq-ul-Hasan or Talaqul-e-Hasan on the very first pronouncement of Talaq the wife will resort to 498A IPC and Domestic Violence Act, making the husband and his entire family accused of harassment and demand for dowry which further aggravate the issue and Husband naturally resort to Triple Talaq and the opportunity of reconciliation is lost. Unless these penal provisions are banned the marital life cannot be restored.

The Number of Divorce cases filed before 1983 i.e before 498A is introduced very less compared to present days and people used to only leave or abandon their wives but there used to be reconciliation, the introduction of 498A the situation has aggravated leading to irreversible breakage of marriages and piling of litigation in court.

If the wife is living an immoral life than the custody of the children will be given to the husband according to Muslim law. The custody of a minor child in Islam is called Hizanit, which means the care of the infant. As per the Shariat law, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty. Whereas under section 6 the magistrate is empowered to give custody of minor children to the mother and which is contrary to the Personal Law/ Shariat Law.

Offence to be cognizable and Non-Bailable

Anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the code.

Section 7 of the bill has made the offence to be cognizable and non-bailable. Let us understand the three aspects mentioned in Section 7:

• A non-obstinate clause is a legislative device to give an overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment
• To avoid the operation and effect of all contrary provisions, to which such non-obstante provision has been given overriding effect
• The provisions of Cr.P.C will not have overriding effect and at the same time, the section was made cognizable and non-bailable.

Section 2 (c)

Section 2 (c) of the Criminal Procedure Code, 1973 defines cognizable offences.

Cognizable offence are those offences in which a police officer may arrest without warrant, as per the first schedule of the Criminal Procedure Code, 1973 or under any other law for the time being in force.

Lalita Kumari vs. Govt. of UP

In the above case, Supreme Court on 12 November 2013 held that the police must compulsorily register the FIR on receiving a complaint if the information discloses a cognizable offence, and no preliminary inquiry is permissible in such a situation.

The police cannot refuse to register the case on the ground that it is either not reliable or credible.

Gurmito vs. State of Punjab And Ors 1996 CriLJ 1254 P&H

In the above, case it was held that the refusal to file FIR on the ground of the place of crime does not fall within the territorial jurisdiction of the police station, amount to dereliction of duty. Information about cognizable offence would have to be recorded and forwarded to the police station having jurisdiction.

State of Andhra Pradesh vs. Punati Ramulu And Others, AIR 1993 SC 2644

Hence a mere complaint that Muslim husband said Talaq is sufficient to file FIR and arrest without any preliminary inquiry or investigation as in cases of murder, rape, dacoity etc.

Section 2(a) of Criminal Procedure Code defines the bailable offence. Offences which are shown as bailable in the first schedule are bailable offence.

As per the last item of the first schedule of Cr.P.C an offence in order to be bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only.

Some of the common bailable offences are:

• Simple Hurt (Section 337 of IPC)
• Bribery (Section 171E of IPC)
• Public Nuisance (Section 290 of IPC)
• Death by Rash or Negligent Act (Section 304A of IPC)

The requirement of a separate act

By incorporating a provision in Muslim Women Dissolution of Marriage Act that the pronouncement of Triple Talaq in a single instance has no effect on marriage the Talaq shall not be effective. Or the Muslim Ulmas or Muslim Law Board would have been directed to identify and make Talaq-e-bidat as void and has no effect on marriage.

Conclusion

The drafting of the bill may not meet the need of Muslim women in the true sense as criminalizing the utterance of talaq will not give an opportunity for reconciliation and re-joining instead and will have the adverse effect and will lead to permanent breakage of marriage. The bill will prove to be a curse on Muslim community and is an invasion of rights of Muslim husband’s personal Rights nor would the legislation help in rendering Justice. The bill should be reviewed retaining the voidability of Triple Talaq in one go and such talaq to be treated as null and void or as single Talaq and there provision should be made for filing restitution of conjugal rights and restraining the husband from pronouncing Talaq until a fair reconciliation and Arbitration is done to remove the differences which task to be entrusted to Some Arbitration council who knows Shariat law and social practices instead of criminalizing and penalizing the husband then only the true spirit and aim of the act and preamble will come into light and the purpose will be served.

How to Give Talaq to Your Muslim Wife- Complete Legal Guide

References

[1] Mohammedan Law by Nishi Purohit

[2] Muslim

[3] Ameer Ali, Mohammedan Law II, 514

[4] AIR 2002 SC 3551

[5] 2004(1)ALT Crl 483 A.P

In this article, Mahima Wahi discusses how to file a Curative Petition.

Curative Petitions are such petitions that have seen a comparatively newer introduction in the field of law in our country. Such petitions serve as the final and last option for the parties to get justice as promised and guaranteed to each one of us through The Constitution of India. However, this concept is relatively new and faced a lot of criticism by the Bench as being a concept that could shake the trust of the public that the public at large bestows on them. The parameters within which a curative petition may be allowed are narrow and therefore, such petitions when allowed are treated to be rare.

Understanding the concept of Curative Petition

The concept was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra Vs. Ashok Hurra and Anr., where the issue raised pertained to “whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?”[1].

The conflict arose between the parties on account of matrimonial discord, it was here that the question regarding the validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.[2]

Jurisprudence behind Curative Petition

The objective behind allowing such a petition is only to minimize any abuse of the processes of law and to cure gross miscarriage and lapses in the system of justice.
It is considered as the last and final option available for redressal of grievances.
It is generally not allowed to happen in an open court and is heard in the chamber of the judge.
It is a rare phenomenon that the same may be heard in an open court.
The aggrieved parties have the statutory right to appeals or civil reviews or revisions depending on the nature of dispute and issues which escalate vertically to appellate/ revisional/ reviewing forums.[3]
The General jurisprudence of Appeals allows parties to use their chance in the highest court of the country i.e., The Supreme Court of India by way of Writs, SLP’s or statutory appeals.
Once a decision is given by the Supreme Court of India the same may be considered final and binding. The reasoning behind the same lies in the Latin maxim “interest Reipublicae Ut sit finis litium” which means in the interest of society and public as a whole, any litigation must come to an end considering the time taken for each litigation to reach a final outcome.

However, in the interest of justice, the founding fathers and mothers inserted Article 137 of the Constitution, which allows a review of orders passed by the Supreme Court.[4]

The question which came to the light was regarding any situation where the parties feel that even after the revision petition, the justice has not been served. The question seemed logical and practical as the main aim of the judiciary is to give proper meaning to the provisions of law and any miscarriage of justice shall be harmful for the society at large.

Actus Curiae Neminem Gravabit

Keeping in mind that in the Apex Court, there lies no appeal against an order of its own which means that there is no intra court appeal in the Supreme Court. It is also a well-settled principle that an act of the court shall prejudice no one; the same is based on the Latin Maxim “actus curiae neminem gravabit”. Considering that it would be an extremely strong discretionary power which could only be exercised in rare cases.

Therefore, finding an answer to the above-stated question doesn’t only seem as a necessity but also as an imperative step to prevent any lapses in the prevalent system of law. The question was decided by introducing this interesting and new concept of “Curative Petitions”. It may be noted that while introducing such a concept, it was mentioned that the basis of such petitions can only be limited to the question of law and law only, no question of facts and numbers would be entertained under such a petition.

Procedure for filing a Curative Petition

Before we jump onto the analysis of the landmark judgment given in Rupa Ashok Hurra Vs. Ashok Hurra, it is important to note the procedural aspects laid down in the Handbook on Practice and Procedure and Office Procedure of The Supreme Court of India.[5] The following points under the handbook, explain in detail the procedure and requisites that shall be fulfilled for filing a curative petition:

The Supreme Court shall have Inherent and Plenary Jurisdiction to hear such petitions. It is made clear under Chapter 2 of the Handbook.
Order XLVIII of the Supreme Court Rules states when can a Curative Petition be filed which is after the dismissal of a case in exercise of review jurisdiction under Article 137 of the Constitution, by way of circulation, a curative petition can be filed under the inherent jurisdiction of the Court to prevent abuse of its process and cure gross miscarriage of justice, as per the law laid down in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.[6] It can be either a civil petition or a criminal petition.
The handbook further adds on Page 36 that such a petition which is filed under Order XLVIII of the rules shall be circulated to and heard by a bench of three senior most judges as well as the judges who passed the judgment in question. Unless otherwise ordered by the court, such a petition shall be disposed of by circulation without any oral arguments. But in case the Bench before which such a curative petition is circulated deems just and proper, it may list the same for hearing before the same Bench, as far as possible.
The affidavit which may accompany the curative petition shall clearly mention that the petition is governed by the judgment of the Court as given in the case of Rupa Ashok Hurra Vs. Ashok Hurra.[7]
Chapter X of the Handbook enlists how various petitions that are to be submitted before the Apex Court are to be prepared. It shall be made following the below-listed grounds:It shall be governed by the laws laid down under landmark judgment given in the matter of Rupa Ashok Hurra Vs. Ashok Hurra.
It shall contain specifically that no new grounds have been taken and the grounds mentioned in the petition had been taken in the application for review, which was dismissed by circulation.[8]
It shall always be accompanied with the following:A certificate of the senior advocate that the petition meets the requirements delineated in the case mentioned;
A certified or authenticated copy of the judgment or order complained of; and
A certificate of the advocate-on-record to the effect that it is the first curative petition in the impugned matter.
The handbook also states clearly that there is no limit within which a curative petition must be filed; it also specifically mentions that it shall not be governed by the provisions of The Limitations Act, 1963. However, it does mention that the same must be filed within a reasonable time from the date of the impugned judgment.
In the third schedule of the handbook, the fee for such petitions finds mention. It states that the same fee as was paid in the original proceedings shall be levied.
Analysis of the Judgment

Rupa Ashok Hurra v. Ashok Hurra (2002)4 SCC 388; AIR 2002 SC 1771

In the judgment given by Hon’ble Justice Syed Shah Mohd. Quadri (for C.J., himself, Variava and Patil, JJ.) a bare reading of Article 32 of the Constitution of India led to the understanding that:

The Right to move the Supreme Court by appropriate proceedings for the enforcement of the rights of Fundamental Rights is guaranteed;
The Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III. Without prejudice to the powers of the Supreme Court;
To empower by law any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) of Article 32;
The constitutional mandate embodied in clause (4) of the Article 32 shall not be suspended except as otherwise provided for by the Constitution of India.
High Court cannot issue Writs to other High Court

The bench having critically and crucially examined the nature and historical background of writs in India as well as under the English Laws, it was noted that a “High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different bench of the same High Court”

Naresh Shridhar Mirajkar Vs. State of Maharashtra

Basing the view on a writ filed in the Supreme Court of India challenged an oral order of the High Court of Bombay. It was held in this case that:

It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption.
To begin with the High Court’s cannot issue a writ to the Supreme Court because the writ goes down and not up.
Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court placed on an equal footing in the matter of jurisdiction.
Where the county court exercised the powers of the High Court, the writ was held to be wrongly issued to it.[9]
After hearing both the parties in all fairness, the bench recorded that the jurisdiction of this court under Article 32 cannot be invoked and challenge a final judgment/order passed by this court after exhausting the last resort provided under Article 137 read with Order XL Rule 1 of the Supreme Court Rules, 1996.

Amicus Curiae

However, the Amicus Curiae suggested an adoption of an unusual unanimous approach to apply to a situation where even after exhaustion of Article 137 of the Constitution of India an aggrieved party might be provided with an opportunity under inherent powers of this Court to seek relief to avoid and prevent the miscarriage of justice because then it would render the party helpless leaving no recourse to any other forum.

Facts presented by Mr. Shanti Bhushan, Petitioner’s Counsel

Mr. Shanti Bhushan, Petitioner’s Counsel, brought to the attention of the bench that the principle of finality of the order of this Court had to be given a go-by and the case re-examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice.[10]
He further brought to the attention of the court that under Order XLVII, Rule 6 of the Supreme Court Rules, the Hon’ble Supreme Court of India had inherent jurisdiction and any cases falling under the above-mentioned clauses came under their jurisdiction.
Reference was made by Mr. Shanti Bhushan to Supreme Court Bar Association Vs. Union of India[11]
He relied on the judgment to show that such a power was exercised by this Court and pleaded to fashion appropriate procedure for entertaining application to reconsider earlier judgment of this Court at the instance of an aggrieved person to do justice to the parties.[12]
Various arguments by eminent lawyers like Mr. K.K Venugopal, Mr. Shanti Bhushan, Mr. Anil B. Divan, Dr. Rajeev Dhawan, Mr.Ranjit Kumar etc were put forward basing their submissions on many landmark cases from Indian courts as well as from foreign courts including the ones mentioned above.

It was further noted that a petitioner is entitled to relief ex debito justitiae if he establishes:

A violation of natural justice or where there has been an apprehension of biasness which adversely affects the party or parties, the grounds mentioned in the petition should have been taken in the Review Petition and it should have been dismissed by circulation. It shall also contain a certification by a Senior Advocate confirming that the above-listed -requirements have been fulfilled.
The bench was of the view that because the matter related to the re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available.
It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.[13]
However, if by the end of the case, it is found that the case was filed without any merits and was deemed vexatious then, the court may also impose exemplary and heavy costs on any such party or parties.
Curative Petitions ought to be treated as a rarity

Hon’ble Justice Banerjee went on to add his own submissions to the case stating that “curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute”[14].

Held

In totality, a benevolent view was taken by the bench to ensure that there is no miscarriage of justice. In view of the same, the judgment held that technical difficulties and apprehensions over the reopening of cases had to give way to a final forum for removing errors in a judgment where administration of justice may be affected.[15] However, the same may be subjected to the fulfillment of requirements mentioned herein above. Such petitions may be treated as rarest of the rare to maintain the trust and credibility, people of the country look up to from the Apex court of the country.

With this case, the concept of Curative Petition was brought to light

The judgment enlisted various requirements that would be needed to file such a petition, on the same side of the coin Justice Banerjee, emphasized on treating these petitions under the umbrella of rarest of the rare.
They stuck to the view that such matters shall not shake the interest and trust of the public at large and shall act as a tool to prevent gross miscarriage of justice.
A good system of justice carries the burden of natural justice on its shoulders in a way that it benefits the people of the country the most. It ensures that no injustice shall be caused to any person and that decisions should never be subjected to prejudice of any sort.
As quoted by Victor Cousin “The universal and absolute law is that natural justice which cannot be written down, but which appeals to the hearts of all”, the Hon’ble Supreme Court gave similar connotation and introduced this concept which gave a new insight to the whole system of justice.
It is to be believed that a system which bases reliance both on the principles of law, as well as natural justice, is a system for the good and benefit of the people.
Recent Judgments of Curative Petition

Naz Foundation Trust Vs. Suresh Kumar Koushal And Ors.[16]

The judgment was given by Hon’ble Justice(s) S. A Bobde and Ashok Bhushan clarified the position that it may not be necessary to delve into the merits of the case presented by the bar at all times. All that was noted was that since the issues were of considerable importance and public interest, the curative petition was placed before the Chief Justice of India, to list before the suitable bench.

Yakub Abdul Razak Memon vs State of Maharashtra[17]

Justice Kurian of the Supreme Court of India did not agree with the view taken by Justice Anil Dave, he emphasized that Curative Petitions must be heard in accordance with the guidelines mentioned in Rupa Ashok Hurra Vs. Ashok Hurra.

Central Bureau of Investigation and Ors. Vs. Keshub Mahindra and Ors.[18]

Even though the handbook makes it clear that Curative Petitions may not be governed by the provisions of The Limitations Act, it does state that such a petition must be filed within a reasonable time period. In the above-stated matter, the curative petition was dismissed stating that no satisfactory reason was stated in the petition as to why it took 14 years for the petitioners to file such a petition.

CONCLUSION

As much as we may want to believe, Judges whether of the Supreme Court, High Courts or district courts, they aren’t gods. They are humans and humans are bound to make errors at some level or the other. While the decisions of the lower courts can be reviewed, appealed against or revised under various Articles of the Constitution, the apex court could not go against its own order to make changes. However keeping in view that error is natural and may be committed by any human, it was imperative to introduce a concept that would allow The Supreme Court of India to review an order passed by them.

References

[1] Utkarsh Anand, Explained- 1993 Mumbai serial blast: What is curative petition?, The Indian Express, July 29, 2015

[2] Supra 1

[3] Namit Saxena, The last chance after Last Chance-Curative Jurisprudence, http://www.livelaw.in/last-chance-last-chance-curative-jurisprudence/

[4] Supra 3

[5] Supreme court of India handbook on practice and procedure and office procedure, 2017

[6] Rupa Ashok Hurra Vs. Ashok Hurra, (2002)4SCC388

[7] Supra 6

[8] SUPREME COURT OF INDIA HANDBOOK ON PRACTICE AND PROCEDURE AND OFFICE PROCEDURE, 2017, Pg. 75

[9] Naresh Shridhar Mirajkar Vs. State of Maharashtra; 1898 (1) Q.B. 669 (India)

[10] Supra 6

[11] Supreme Court Bar Association Vs. Union of India;(1998)4SCC409 (India)

[12] Supra 6

[13] Supra 6

[14] Supra 6

[15] Supra 1

[16] Naz Foundation Trust Vs. Suresh Kumar Koushal And Others, (2016)7SCC485

[17] Yakub Abdul Razak Memon vs State of Maharashtra (2015) 9 SCC 552

[18] Central Bureau of Investigation and Ors Vs. Keshub Mahindra And Ors., (2011)6SCC216

This article is written by Aditya Shrivastava, marketing executive at iPleaders.

After working in a Multinational National Company (MNC) for half a year, and interning at a couple of MNCs during my graduation, I realized that most MNCs are not very keen on taking freshers. However, I thought this is merely a hypothesis and there must be MNCs which recruit freshers. This positivity stemmed from the fact that I get almost 5 spam emails from various recruiters which read as, “Aditya, recruiters at MNCs are waiting for candidates like you.” or “Congratulations! Your CV is shortlisted for XYZ position at ABC MNC.”

I did a quick fact-check. I called more than 5 Human Resource (HR) Managers working at different MNCs in India. All of them replied saying the same thing, “Our company does recruit freshers but only from the university we have a tie-up with.” There were others who said that they believe in hiring from the best pedagogy, “We hire people from different parts of India so that we can have diversity, and currently we are aggressively recruiting women to set-up an example. However, this is restricted to the institutes we think are the best.”  In simple language this means – either come from an institute with which we have a tie up or look somewhere else.

Most of these companies have dedicated campus recruitment teams. They are seldom open to taking freshers through regular openings/walk-in interviews. On speaking at a stretch to one of these HRs, he said, “The case worsens when it comes to non-mainstream fields such as law. We are a technology company and profiles like law need expertise, so we only go with the ones who come with relevant experience.”

This idea is no stranger to any other structured organization. It is safe to say that as professionals, we may have the required skill, experience and opportunities to solve the perpetual obstacles in terms of job opportunities. However, just like the current set of freshers, we must have also faced huge hurdles in cracking opportunities we really wanted. Had I not interned at the right places or not signed up for this online course by NUJS Kolkata, I would be probably facing the same battles as most of my batchmates who graduated in 2017 are facing. Lack of expertise or unrealistic expectations is one of the major reasons why recruiting agencies are facing hiring blues while recruiting freshers. Despite the multiple claims by MNCs, one can see a clear divide in the claims made to hire young talent over experienced personnel.

India Today conducted a survey of job openings by over 450 small and big companies, corporates and in-house wings located in Delhi-NCR, Mumbai, Hyderabad, and Bangalore. It was revealed that the biggest challenge lies in the lack of specific skill sets in today’s generation.

This article is an attempt to point out the top three problems that the employers face while recruiting a fresher in the legal teams:

Lack of Practical Knowledge

Legal professionals are expected to have the requisite legal acumen to deal with any kind of question posed in front of them. Most of the MNCs have four kinds of job roles. Legal Advisory, Litigation, Contracts and Documentation and Compliance. Each of them is distinct in nature and require different skills and aptitude.

A fresher often doesn’t know the industry or the laws governing the industry. They are not prepared to directly handle the clients or advise them on any legal question. They lack skills to draft a full proof contract. They do not understand what they are expected to do. In-house legal work is generally complicated and they cannot be trusted with it because it requires an all-round knowledge of various laws. Freshers fail to garner enough industry or domain knowledge. Inadvertently, their recruitment suffers.

To be absolutely honest, no one hones these skills from the very onset of their career. It is a very unrealistic expectation for any company to have for a fresher. Having said that, there are innumerable individuals who have managed to crack such interviews. It does require hard work but when you need a job you do what is required of you to get it.

I was able to crack the very first interview with an MNC because I not only read the job description beforehand but I also started preparing a year in advance. I read the relevant laws and took an online course which updated me with all the knowledge I needed. I also spoke to various seniors to get a thorough idea of the practical knowledge that would be required. If you try hard it is not very difficult to get through this bottleneck.

2. Freshers Are Not Ready For The Job

Transcending from law schools, most freshers have high expectations from the first job. They are looking for a learning experience. They want a job that allows them to apply their legal knowledge to practice.

Knock knock! MNCs work in a very different way. They expect you to be able to take quick decisions in times of crisis. Your client is the business the company runs. You are expected to make sure that you can find solutions to legal problems the business is facing without harming the revenues.

Let me give you an example. A competitor has filed a case against your company for comparative advertising. The Delhi High Court passed an order on Friday evening stating that your company must stop airing the impugned advertisement in effect from the coming Monday. You’re aware of the order, but it did not strike you to inform the marketing team about the same. Come Monday morning, there is a contempt case filed against the Marketing Head of the company for breach of the court order. Did you know that the Marketing Head could go to jail for contempt? What could you have done to avoid it? Would you be ready to take such responsibility?

Apart from this, when it comes to focus, initiatives or efficiency freshers tend to take things lightly. They find it difficult to accept various protocols. Most freshers either lack flexibility or are too humble that they succumb to the surroundings.

While I was researching, I realized that I quit my first job because I thought it wouldn’t help me develop my knowledge or skill-set.

The solution to this problem lies with you alone. Freshers need to have a reality check! You need to comprehend the realities of a workplace. You might ask how can one know without having any experience?

The answers to this lie in networking. If you are planning to join a company, look up for the employees working there and connect with them on LinkedIn or Facebook. Take up online courses which provide you with mentors for guidance. Talk to your peers who are placed in similar companies or ask them to help you connect. At the time of the interview leave no stone unturned to ask the recruiter any question you have about the job profile.

3. Treating Companies As A Stop-Gap Arrangement

A lot of fresher tend to treat their job as a stop-gap arrangement till the time they make it to a better company or a biglaw firm. This is a constant problem that MNCs face. Freshers are conditioned to believe that the best they could make out of their degree in law is to earn big bucks by working at the top law firms. This belief often leads to freshers leaving their job within the first six months of joining.

The problem of attrition is so huge that the companies are now reluctant to take in freshers. Owing to the growth of law firms, companies and startups – freshers today have endless opportunities. They might struggle a lot to get their hands on the first stint. But once they gain a little work experience they start looking out for better opportunities. Their interest shifts from learning to better packages, higher designation or preferred location. They go to lengths to shift to get a better package as they know the workload would roughly remain the same.

While most of the recruiters believe the problems lie with the freshers, however, in my opinion, the challenge equally remains with the company. Everyone looks for stability, however, how much a company can do to retain an employee depends majorly on its policies. They need to ensure that the right amount of opportunities combined with challenges are provided to the freshers. They need to provide guidance, conduct induction sessions and make them understand the roles and responsibilities that they shall be entrusted with.

It’s important to understand that irrespective of what the may recruiters think, the reality is that every year a lot of freshers are recruited in companies. If you have prepared well and you are ready to take the challenge, it is difficult to say no to you.

Good luck!

This article is written by team LegalWizz. The article discusses whether it is compulsory to file logo with Trademark Application or not.

Brand name links stakeholders with the integrity and vision of the organisation, whereas the visual representation of the same through a logo strengthens your image value in a better way. After all, an image speaks 1000 words. The owners of the brand name generally opt for the Trademark Registration with the wordmark as well as the logo designed carefully.

The first topic to be discussed is whether online registration application filing will require both Word mark and a logo? The brief answer to this is clear no. The applicant can either file application with only word mark or only logo or with both choosing the appropriate category of the Trademark. Online TM Registration allows your different categories under which the application will fall. Word Mark and Device are main two categories which will be discussed here. The application of Trademark filed as only “word or brand name or tagline” will be considered under category of “Word Mark” whereas the application which involves only “Logo or Logo with word mark” will fall under category known as “Device.”

Choosing a logo that will represent your organisation without any words is a careful part as the interpretation is left on the person interfacing same. Hence, the customary interpretation in the industry should be considered while designing of the logo as the message spread by the use of logo will also affect the business and goodwill of the client.

How the logo should be chosen?

A logo to be submitted for the application of Trademark Registration should not be nearly visually identical in form of shapes or designs nor it should be similar or adopted from the famous logos or designs that can cause ambiguity in the mind of consumers and can create untrue impression of connection with said brand. Hence, a uniquely designed logo is required for allowing registration as well as its establishment of unique identity among others in the market.

The logo can be applied with the word mark or separately in different application. When the application contains both Word mark and Logo, the logo shall contain only word mark within its design. In case the applicant wants to add the tagline in the logo, the same shall also be added in applied word mark. It is normally seen that the Registry asks the applicant to choose between the word mark and the logo, in case any dissimilarity is found. Hence, to avoid such consequences to choose between both, better option is to include the brand name or word mark in the designed logo. Combining your Brand Name and Logo will allow making an application with single Trademark Application online. In case the applicant wants to design the logo differently, the logo can be separately applied as discussed above.

When the brand name applied hold huge value in monetary terms or clientele and the brand name is very common, the applicant can always see bright side of making different application. When the Registry denies the word mark, few chances are there to get the application for logo passed based on its distinct design and shapes.

Should the logo be colour specific?

Designing a logo and choosing colour pattern is not clearly related to making an application unless it is similar to other brands. What colours are to be used and included are sole discretion of the applicants. Yet, a question always arises whether to apply the logo with colour pattern or only in black & white pattern. When you include different colours in the application, it means you are applying for design with such particular colours. Therefore you are claiming to provide right on particular design with colour pattern. Hence, you cannot alter the colours used in the logo afterwards and continue using ™ or ® sign besides it. The rights will be limited only to applied colour pattern of Logo. If for any reason, the colour pattern is changed for the logo and the owner wants to claim rights over it, a fresh application shall be made with payment of Government Fees in concerned class.

When you apply for the logo in B&W pattern, you do not mark ownership for any particular colours, but only the designs. Hence, at any time the applicant or owner will be able to change the colours as per requirement and trends. This will help the applicants that require changes based on prominent fashion trends and using different colours to influence the market.

Change in Logo

Any change in pattern, design or shape of logo will require the applicant to file a new application to secure the rights over same. As said, when we are registering a particular shape, the rights of owners will be limited to application filed. Application cannot pursue his rights over a logo even with a minor variation, using ™ or ® mark will be prohibited for particular change. Therefore, while designing a logo, one should foresee the upcoming demands and trends to reduce the chances of change in logo in future to eliminate additional cost for filing new application.

Keep an eye on application status

Responsibility of the applicant does not end with making an application for online TM Registration only. The applicant is also required to track the status of the application filed on regular period of every 20 to 30 days. The applicant shall respond to the queries of the Registry within the time prescribed. While raising a query or objection, the registry does not refrain the applicant to use a ™ sign or waive the rights over the brand name or logo, but provides an opportunity to put forward the grounds to support the application. The applicant can track the application status at http://ipindiaonline.gov.in/eregister/eregister.aspx using “Trade Mark Application Status” option.

The conclusion says that the logo and brand, if applied together shall be consistent with each other. Get assisted by your attorney for better understanding of application for your brand name and logo. Need guidance? Reach Trademarks experts at toll-free number 89806 85509 for free consultation. Visit our webpage for Trademarks Registration for more information.

In this article, Smita Singh discusses the concept of kharab land in Karnataka.

Kharab is a land which is common for anyone transacting in the land in Karnataka to come across. This article will clarify the concept of “kharab” to enable those transacting in land to deal appropriately.

Classification of land

The term “Kharab” indicates a classification/type of land. As per Rule 21(2) of the Karnataka Land Revenue Rules, 1966 during the process of classification, land included as arable (i.e. unfit for cultivation) is to be treated as “Pot Kharab”. Pot Kharab lands, in turn, have following two categories:

1. ‘A’ kharab
2. ‘B’ kharab

‘A’ kharab

‘A’ kharab is classified as unfit for agriculture at the time of survey including the farm buildings or threshing floor of the holder.

The ‘A’ kharab area may form part of the land held under private ownership. It comprises the portion that is not used for cultivation, but for purposes like:

• Farm buildings, or
• Threshing floor etc.

Therefore sometimes, it could be exempted from the land revenue assessment. ‘A’ kharab area can be brought under cultivation. It is capable of conveyance or conversion to non-agricultural use.

It is pertinent to mention that Kharab ‘A’ land is capable of ownership and cannot be claimed to be adjunct to cultivable land. Kharab ‘A’ land does not get automatically transferred along with adjoining agricultural/cultivable area. Merely because a land is classified as ‘A’ kharab, it cannot be assumed that it is under private ownership.

Significantly, section 67(1) of the Karnataka Land Revenue Act, 1964 declares that all lands which are not the property of any person are the property of the state government. It provides:

• All public roads, streets, lanes, paths, bridges, ditches, dikes, fences
• The bed of:
  • The sea, harbors, creeks below high water mark and of rivers,
  • Streams, nalas, lakes
  • Tanks, and all canals and watercourses
• All standing and flowing waters, and
• All lands wherever situated which are not the property of individuals or of aggregate of persons legally capable of holding property, and except insofar as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be with all rights in or over the same or appertaining thereto, the property of the State government.

‘B’ kharab

‘B’ kharab is not assessed because:

• It is reserved or assigned for the public purpose
• It is occupied by a road or recognized footpath or by a tank or stream used by persons other than the holders for:
  • Irrigation
  • Drinking, or
  • Domestic Purposes
• Used as a burial ground or cremation ground
• Assigned to village potteries

The kharab land which is categorized as ‘B’ kharab belongs to the government and the same can neither be converted nor conveyed by private parties.

Saudagar Rasul Khan v. State of Mysore ILR 1973 Mys 56

One of the earliest decisions of Karnataka High Court on the above-mentioned case while considering a private individual’s claim of ownership over kharab land, the court held that:

Because the Revenue Rules permit the owner of the adjacent cultivable land to bring the kaharb land belonging to the government under cultivation, one should presume that when the cultivable land is sold, some sort of the title in respect of the adjacent kharab land is also conveyed. It is difficult to accept this proposition. Kharab land is so called because it is not cultivable and is a classification made for purposes of revenue exemption. Kharab land is also capable of ownership, and cannot be regarded as an adjunct to the cultivable land which gets transferred along with the cultivable land. Acquisition of the title to the Kharab land is similar to the acquisition of the title to the cultivable land.

Later decisions hold that a private party can claim compensation in respect of kharab land that gets acquired by the state in the exercise of the power of eminent domain by establishing ownership and that the same was not kharab ‘B’/government kharab[1].

Private ownership over kharab land

Private ownership over kharab land can thus be claimed only if it is established that:

• The kharab extent belongs to private party i.e. he acquired the title validly, and
• The kharab portion is not ‘B’ kharab.

Source of acquisition

To ascertain the title to kharab extent is validly acquired, the source of acquisition for instance:

• Issued by state authorities,
• Sale deed,
• Gift deed etc. will have to be examined.

Dealing with a private individual ownership claim over land described as “kharab” and occupied by the tank.

R. Hanumaiah v. State of Karnataka, (2010) 5 SCC 203

The Supreme Court in the above case specified the nature of proof required for declaration of the title against the government as follows:

• Suits for a declaration of the title against the government, though similar to suits for a declaration of the title against private individuals differ significantly in some aspects.
• The first difference is in regard to the presumption available in favor of the government.
  • All lands which are not the property of any person or which are not vested in a local authority, belong to the government.
  • All unoccupied lands are the property of the government unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.
• The second difference is in regard to the period for which title and/or possession has to be established by a person suing for a declaration of the title.
  • Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual.
  • On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for a title against the government.
  • This follows from Article 112 of the Limitation Act, 1963, which prescribes a longer period of thirty years as the limitation in regard to suits by the government as against the period of 12 years for suits by private individuals.

Government properties are spread over the entire State and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.

Loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

Whether the government contests the suit or not, before a suit for declaration of the title against a government is decreed, the plaintiff should establish

• Either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where the title is claimed with reference to a grant or transfer by the government or a statutory development authority), or
• By establishing adverse possession for a period of more than thirty years. In such suits the court cannot ignore the presumptions available in favor of the government grant declaratory decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds, etc. based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government.

Thus, in absence of acquisition title to kharab land, a private party will not be allowed to claim title over the same, particularly against the government.

To rule out that kharab portion is not ‘B’, kharab the revenue records viz.

• Akarband
• Tippani
• Kharab uttar extract
• Village map, and
• RTCs must be examined.

Keeping the aforesaid aspects in mind, any transaction for acquiring kharab land should be proceed only if it comprises ‘A’ kharab and title to the same is validly acquired.

Sadashivaiah v. State of Karnataka, ILR 2003 KAR 508 and Dundappa Yankappa Halli vs The State of Karnataka arising out of Writ Petition Nos. 82178 92/2013 (LA-RES) decided on January 9, 2014[1]

This article is written by Aditya Shrivastava, marketing executive at iPleaders.

A lot of individuals enter law schools with very little idea of how their career is going to look like five years down the line. Their idea of a stable career in law develops by attending seminars, or by observing their relatives and neighbours who have turned out to be fabulous corporate lawyers or are earning amazing salaries. The truth, however, is that most of them are battling over law firm internships throughout our law school. They have superficial knowledge of how much salary they will earn with limited or next-to-no idea about what the work is going to be like.

This lack of idea is further aggravated when someone decides to join a multinational company’s compliance team. While most of you may think that you are going to work on various company laws, SEBI regulations, RBI guidelines, FEMA etc., the stark reality is that lawyers working in the compliance and contract management teams are constantly dealing with various client projects, some foreign laws and majorly working on excel sheets. Most of the laws that you have studied in law school prove to be of no help. At the outset, I would like to say that this does not hold true for in-house counsels working in the legal team of a company.

However, the same laws become extremely crucial when you are appearing for an interview. An interview at a law firm or an MNC is difficult to crack, and you need to be prepared for it irrespective of what the future may hold for you. Thankfully, I took up an online course which helped me crack every interview I appeared for. I was working at a technology giant as a Senior Process Executive which I quit within 5 months. Had I paid attention to my course mentor, I would have conveniently avoided that job and looked for a job in the creative space at the very first go. But, this is specific to me. I am writing this article to help you make an informed choice.

So is it worth joining the compliance team?

I will list out three reasons why you can consider joining the compliance team of a company over a law firm and leave it for you to judge whether you are willing to take it or not.

MNC’s and small to mid-sized law firms pay roughly the same

If you have come across an article which gives you specific data as to how much a law firm or a company on an average pays, I urge you to discard it as farce. In the legal industry, a pay package depends on a lot of factors. It can be the institutional pedagogy, grades, company policy, etc. There are firms which hire two freshers, one is paid INR 23,000 per annum and the other is paid INR 40,000 per annum.

In MNCs, the situation is slightly different. An article by Economic Times states, “Compliance jobs are the latest hot jobs in India, specifically in the lending sector!” An MNC’s compliance team, generally, has a slightly better pay package than the small or mid-sized law firms because they have the capacity to pay more. As per payscale, if you are a compliance officer, your salary can range anywhere from INR 1,87,503 in the worst case to INR 9,98,120 in the best case scenario. However, an MNC might not have regular bulk opening like law firms because their requirement for compliance executives is generally low.

Another factor that must be kept in mind while opting for working at a company (whether it is an Indian conglomerate or an MNC) is the tax liabilities. If you choose to work with a law firm, your tax liability is only 10% TDS, which you can claim if your salary is below the tax bracket. However, the moment you join a company, you are termed an employee and your tax liability can be anywhere between 10% to 30% depending on your salary.

Relaxed and international work standards

MNCs are generally compliant with international rules and guidelines. Thus, their working standards and conditions are in strict compliance with good working conditions for all. Unlike law firms, where work hours have no bar and you might be expected to work on a Sunday, if you’re working in compliance nobody expects you to stay back in an MNC post your work hours.

Most of the MNCs have a software like TruTime, which records your entering and exiting time along with attendance. If your work timings are 9 am to 6 pm, and if you have worked a day extra, you can actually opt to not work for an extra hour the next day. In addition to this, the number of casual and sick leaves, work-from-home facility, medical insurance, home rent allowance, traveling allowances are all a part of the package that you are offered, which can be quite comforting.

Companies generally have team building activities which result in wonderful lunch and dinners. This is combined with work assessment and appraisal. Of course, there are exceptions from your work too. You cannot take the company for a ride just because their policies are comforting. You are expected to deliver. I believe working conditions in an MNC are more relaxed than a law firm.

Experience and Brand Value

One of the many reasons you can consider working for an MNC is the brand value associated with it. If you have an MNC on your resume it will be recognized by everyone.

In terms of experience, an MNC tends to offer you a lot of work related to contract abstraction and document vetting. If you’re working with the compliance team, it will make you relatively better at handling people because you get accustomed to dealing with international clients because of a number of projects.

Though, don’t get your hopes too high. There are many lawyers who have not been able to land a job at a law firm after gaining work experience at an MNC. Working with a compliance team of an MNC might be a good option if you are willing to stay in the corporate set-up. However, it might not help you if you are looking for a company to law firm shift.

MNCs have few disadvantages to them too. I am listing them here so that you can get a better perspective.

You might not get a very “legal” experience

MNCs mostly work on formulas. After all, most of them are either dealing with technology, manufacturing or consulting. They allot a set of tasks to each executive and the executives are expected to follow the set of guidelines and procedures.

For example, if you working with the compliance team on anti-money laundering for a US-based project you will be required to check whether the clients of the company are compliant with specific provisions of the Patriot Act or not. This would either be done on a client tool or an excel sheet. Although, you might learn a lot about how to check various compliances and US laws, it might not help you in dealing with Indian laws.

You won’t get to visit a court

Unless you are working as the legal counsel or in litigation, you might not get a chance to visit the court. In all honesty, it was a huge plus for me because I thought it was something that I wanted to save myself from – the scorching sun and all the hard work. However, I have deliberately used past tense because I don’t think the same way anymore.

If you are someone like me who enjoys sitting in AC cabins and does not want to draft or appear for clients in the court, go for it. However, if you are keen on learning how the entire judicial system functions, learn the court procedures, argue and prove your case, it might not be the best thing for you to do.

Coming back to why I think it’s an advantage today is primarily because I came in contact with Mohona, my present manager. I realized litigation gives you an experience and knowledge which no amount of corporate or compliance work does.

Having said that, if you are okay with not going to a court, life in an MNC can be rewarding.

You might be frustrated or bored with monotonous work and lifestyle

A huge humdrum about working in the compliance team at an MNC is the kind of work and lifestyle it has to offer. You slowly start becoming everything that you never wanted to be. It is like growing up. You would be stuck at 9 am to 6 pm job, wearing a name tag and doing the same routine job.

It does have few merits to it. Life tends to become more systematic and you know exactly what to expect each day. However, the thrill of attending or arguing a case or researching about the new laws in India and how to implement it goes missing.

Having said this, life in an MNC can be quite fun, rewarding and smooth. It is certainly not a bad option at all. What is more challenging is to get a job in the first place. When I first appeared for an MNC interview in my fourth year, I could hardly answer any question. However, it was only after I took this course that I could manage to get a job in the company I wanted.

Be it a company or a law firm, you need to acquire skills or knowledge to crack any interview. How you plan to do it is in your hands.

All the luck.

This article is written by team RecruVia.

A Resume is your professional advertisement and writing a Resume is considered a life skill, rather than just another activity in your job search. It is meant to sell to the reviewer, what benefit you are to their organisation and why they should interview you. To make a good Resume, start by creating a master Resume. From there, synthesise for a shorter Resume. Take help by getting a dispassionate assessment of what you’ve written by another set of eyes (such as, your friend or mentor), and proofread your Resume enough number of times.

So how do you ensure that your CV is read?

• Your Resume should be short and impactful – Universally, it is a common and widely accepted practice to have a 1-page Resume. Many experts agree that a single-page Resume will suffice for every 10 years of experience[i]. A good Resume should communicate precisely and to the point.
• Your Resume should be well formatted versus good looking – It may seem trivial, but from the ease-of-reading perspective, some fonts stand out against others: Calibri, Georgia, Garamond, Arial or Helvetica are advisable. Generally, it is a good practice to choose a font size between 10 and 12. Line spacing and page layout should be judiciously prepared and not end up looking crampy.
• Make your Resume a very powerful advertisement – You would already know, that a reviewer only has 30 seconds[ii] to evaluate your Resume for further shortlisting. A crisp, focussed Resume demonstrates an ability to synthesise, prioritise, and convey the most important information about you.[iii] Essentially, your Resume should be able to tie together your experience and aspirations in one common theme.
• Align your ultimate purpose in your Resume; i.e., to get that interview – Resume making is a reflection exercise and helps you identify the scenarios and situations in which your performance was outstanding. When developing your Resume and describing your experiences, focus on your highest level of responsibility in the position, transferable skills that can be used across industries, such as leadership or communication and include your accomplishments. Emphasise ways you made a difference, took initiative, and how your role contributed to the larger goals of the group or organisation.

Five Keys to Meet your Goal

1. Tell the organisation why you want to work there – Your keenness should resound in your Resume, which would make the reviewer want to more than just glance at it.
2. Explain why you are qualified for that role – Customise your Resume to include only those roles that are best suited to the organisation.
3. Tell them why you will be a good fit – Line it up with the organisation’s mission statement by including your hard skills as well as soft skills, specific interests, which accentuate/speak about your strengths or how they add value to you, as a professional etc.
4. Be clear about your intentions – The reviewer should understand exactly what you bring to the table, which clearly sets the base for them wanting to interview you.
5. Do, all of the above, concisely – The lesser the flowery language and use of adjectives, the greater the impact in terms of understanding unmistakably what you wish to convey. Short paragraphs, bullet points, precise sentences usually do the trick.

Resume Contents

It is very important to include only that content, which you can talk about honestly and intelligently in an interview. Remember, every word counts. All your information should be up-to-date and quantifiable. Also, when uploading your Resume in a softcopy, it may be advisable to name the Resume as ‘first name_last name_company name’.

It is recommended to include the following, in your Resume:

• Your full name – Avoid using initials or just your first name (unless that’s your official full name).
• Distinct headings and sub-sections – A well set-out Resume directs the Recruiter to the relevant content which is well-structured under specific headings. Paragraphs are for a book, not a Resume.
• Your valid contact information –Make sure it’s there and complete in terms of address, contact number and a professional email address. Include your LinkedIn profile, preferably.
• Introduction/objective – It sets the initial impression about you, in the mind of the recruiter and should be able to communicate effectively (in one or two sentences), the number of years of your experience, industry domain you have worked for, technical skills and your personal strengths. For the legal sector, tailor it to the individual organisation by also including your interest in the legal sector, the firm or organisation, and the specific role, applied for.
• Professional experience – Don’t just list what you’ve done, instead, highlight your contributions and/or accomplishments and show the results achieved. For lawyers, it is very important that you mention your Bar admission and/ or memberships.
• Education – Focus on what is relevant to the organisation and be honest about your grades. Omission may lead to lesser chances for that interview call.
• Other experience or interests – Make sure these have a point by delving deeper into the organisation’s profile, so that it matches up with the organisation’s structure to make you a suitable fit. Examples would include: Pro bono work, volunteering, leadership programmes, etc. Include real interests, as opposed to aspirational hobbies.
• Technical skills/ certifications – Use this section only if it’s relevant. The callous use of “proficient in Microsoft Word and Microsoft Excel” are not looked at kindly in today’s legal sphere.

Resume Fails – Common Problems in Resume Writing

• A meaningless introduction
• Trying to use one Resume for everything
• Not considering the specific company/role in your objective or summary
• Being too general
• Putting your key information on the third page instead of first
• Listing tasks without results
• Just listing your duties and roles instead of accomplishments and results
• Too much information
• Catch phrases-filled objective or summary statement
• Missing/incorrect contact information
• Using multiple font types
• Inconsistent formatting, uniform spaces, and indentations
• Not using a PDF version of your Resume while applying online
• Spelling mistakes and abbreviations
• Typos/ grammar/ writing in the 3rd person
• Too much use of Bold and italics
• Revealing confidential information such as a client\’s name
• Lying or fabricating information on your Resume

Finally, a good Resume is a work in progress. Nevertheless, a short, impactful Resume could catapult your current career ambitions into the next logical step in the process: the interview. RecruVia’s tailormade platform helps you by creating precise, customised, standardised Resumes, with drop down options for specific legal skills, soft skills and a section to describe yourself accurately. The process takes less than 15 minutes and the platform uses algorithms to match your interests and expertise with the job requirements listed on the portal.

To know more about RecruVia, please visit https://www.recruvia.com

References

[i] “Work Rules!: Insights from Inside Google That Will Transform How You Live and Lead” by Laszlo Bock, 2015

[ii] “Human Resource Management in a Business Context” by Alan Price, 3^rd Edition, 2007.

[iii] Laszlo Bock, former SVP of People Operation at Google.