Tag Archives: Section 65B

Admissibility of Electronic Records as Evidence under Indian Evidence Act 1872

Standard

Whether Electronic Records in form of SMS-Whatsapp Messages are Admissible in the court of Law

Section 2(1) (t) of the IT Act, an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro filche”.

Text Messages qualify to be an electronic record as it is a data or record generated and stored , received or sent and fits into the definition of section 2(1)(t). Does fall under the ambit.

Section 4 of the IT Act 2000 gives legal recognition to the electronic records.

Section 65B. Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded

or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a

document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in

any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of

which direct evidence would be admissible.

Sub-Section (1) of Section 65B lays down ground/basis for text messages as form f data on record to be an electronic evidence.

PARTIAL REMEDY – CONTEND THAT REQUIREMENT OF A CERTIFICATE IS NECEESSARY FOR Text MSG to be ADMISSIBLE (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showingthat the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. intervention) by means of any appropriate equipment.

In REKHA SHARMA VS CBI this principle of Certificate being given to an electronic record was considered.

Case Laws

State vs Mohd Afzal – Electronic Records are Admissible

It was held that the electronic records are admissible as evidence. If someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation then the person challenging it must prove the same beyond reasonable doubt.

The defendants had contended that the Computer and digital knowledge can easily be tampered with.

Fulfilment of 4 conditions under Section 65B(2) –

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

IN PEOPLE V WATKINS ( IMP CASE LAW PROVING ADMISSIBILITY)

The Illinois court provided a detailed analysis of the admissibility of the text message photos. To establish a foundation for admissibility, text messages are treated like any other documentary evidence. To authenticate a document, the proponent must present evidence to demonstrate that the document is what the proponent claims it to be. The proponent need only prove a rational basis upon which the fact finder may conclude that the document did in fact belong to or was authored by the party alleged. The trial court, serving a limited screening function, must then determine whether the evidence of authentication, viewed in the light most favourable to the proponent, is sufficient for a reasonable juror to conclude that authentication of the particular item of evidence is more probably true than not.

People v. Von Gunten (In California Court of Appeal) – Text Message can be transmitted by more than one person. Hence questioning the authenticity of message in question

Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e-mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e-mail messages.

Lorraine v. Markel American Insurance Company (D.Md. May 4, 2007) 241 F.R.D. 534.

Case provides a comprehensive analysis of how to authenticate digital evidence such as digital photos, email and text messages.

State v. Byrraju Ramliag: E-Signatures are admissible in court of law

Section 65B of The Gujarat Land Revenue Code

Standard

Section 65B of the Gujarat Land Revenue Code

Section 65B- Use of certain lands for Bonafide industrial purpose was instituted in the Gujarat  Land Revenue Code 1879(Also Known as the Bombay Land Revenue Code 1879) (Hereinafter referred as ‘The Principal Act’) by the 1997 Amendment having a retrospective effect from 24/12/1996.

This Principal Act governs all the land records in the state. Through the land records all information is accessible such as the succession, sale, acquisition, due to the change in ownership title of the land records as grounds to dismiss filed etc.    Section 65B of the Gujarat Land Revenue Code 1879 is divided over 5 sub-sections which govern the use of certain lands for Bonafide industrial purpose.

“Bona Fide Industrial Use” means the activity of manufacture, preservation or processing of goods, or any handicraft, or industrial business or enterprise, carried on by any person as given under the Maharashtra Land Revenue Rules 1969.

Clause (a) of Section 65B of the Principal Act means to designate any land used for agricultural or any non agricultural purposes other than industrial purpose in the following manner:

  • Such a land can be designated for the use of Industrial purposes if it is so designated by any draft or final plan such as a development plan or a town planning scheme under the Gujarat Town Planning and Urban Development Act, 1976.
  • If such a land is not designated for any such purpose mentioned in (i) it can be used for specifically mentioned bonafide industrial purpose by notification in official gazette by abiding to the rules mentioned in this Act.

Sub-clause (i) & (ii) under Clause(a) would mean a land that is designated for use of industrial purpose as mentioned under the Gujarat Town Planning and Urban Development Act, 1976 and one that­­­­­­ is situated in an area where no plans or schemes are put in force by the State Government by notification in the official gazette.

The proviso clause for (a) states that the use of such land for bona fide industrial purpose in pursuance of the provisions mentioned under the Bombay Land Revenue (Gujarat Amendment) (Second) Ordinance 1996, when it was in force, shall not be considered to be invalid inspite of the fact that such land has not been designated for such use under this Act.

Clause (b) of Sub-Section (1) sets certain conditions under which the occupants of such land can use the whole portion of the land or a part thereof for bona fide industrial purposes.

In Ambuja Exports Ltd. V. State of Gujarat,[1] The Court, in this order distinguished this case from falling under the ambit of Section 65B of the Gujarat Land Revenue Code, 1879, by holding that the land in question should qualify under Section 65B (1) (a), (i) and (ii), which states that the land should either be designated for Industrial purpose in draft or final development plan or draft or final town planning scheme under Gujarat Town Planning and Urban Development Act under (i) or that it should be set aside by the Government for Industrial Purpose under (ii) without qualifying under any of the schemes mentioned in (i). Both conditions are not met with and hence this land did not qualify under Section 65B to be used for Bonafide Industrial Purpose in this case.  Hence this section was distinguished as not applicable in this case.

  (I) the Occupants of such land can use it for a Bonafide industrial purpose other than the purpose of manufacturing or storage of any chemical or petrochemical.

The Following are the lands under Clause (b) of sub-section (1) which the occupant could lawfully use for such Bonafide industrial purpose without seeking the permission of the collector –

(a) The Occupant must have a Clear Title over such land. This means that the occupant should not have a defective title or pending suit/litigation or any other hindrance for use of such land for specific purpose.

(b)  It mentions Certain Restrictions and constraints imposed upon the occupants of such land for reaping benefits out of such land.

Some of the limitations imposed upon by this sub-clause are as follows-

  • Such a Land that is not shown as reserved for a public purpose in draft or final development plan under the Gujarat Town Planning and Urban Development Act 1976.
  • Such Land that is not notified for acquisition under the Land Acquisition Act, 1894 or any other law for the time being in force.
  • Such land should not be one which falls under the alignment plans for the construction of roads by the State Government. It should also not fall within the alignment of the command area of any irrigation project authorised by the State Government.
  • Such Land which is not situated within 30 Metres from the boundary of any land held for purpose of Railway b the Central Government or the Indian Railway Company Ltd.
  • Such Land that is not situated within 15 Metres of High Voltage transmission line.
  • Such a Land that is not situated within 5Kms Periphery of the area within the jurisdiction of any area development authority or Urban development authority.

The proviso clause states that nothing stated above would affect the use of land for bona fide purposes under the provisions of the Bombay Land Revenue (Gujarat Amendment) (Second) Ordinance, 1996 when it was in force notwithstanding the fact that such land fell within 5 kms of the periphery of land coming under the jurisdiction of any Area Development Authority or Urban Development Authority

The State Government can exempt clause (vi) (Land situated within 5Kms Periphery or Urban dev authority) from being followed by an occupant or even a class of occupants, through its Notification in the Official Gazette.

(II) The occupants of such land can use it for the purpose of manufacture or storage of any chemical or petrochemical without having to take the permission of the Collector. It is subject to following the conditions mentioned in sub-clause (I).

  • An ancient monument which has been declared as a ‘protected monument’ under sub-section (1) of Section 3 of the ancient Monuments Preservation Act, 1904
  • An ancient monument which has been declared as a ‘protected monument’ under sub-section (3) of Section 4 of the Gujarat Ancient Monuments and Archaeological Sites and Remains Act, 1965.
  • A forest land or waste land which has been declared as ‘reserved forest land’ under Section 3 of the Indian Forest Act, 1927.
  • An area declared as a ‘Protected Forest’ under Section-29 of the Indian Forest Act, 1927.
  • An area declared as ‘sanctuary’ under 18 (1) of the Wild Life (Protection) Act, 1972.
  • An area declared as ‘national park’ under Section 35 of the Wild Life (Protection) Act, 1972.

In Valsad Jilla Paryavaran Trust v. State of Gujarat & Ors,[2] a Public Interest Litigation was filed by the Petitioners on ground that one of the Respondents was going to start and industrial unit without having the necessary permissions and verification process. The respondent No. 12 contended that they have already filed appropriate application before the Collector under Section 65B of the Bombay Land Revenue Code 1897. The petitioners have prayed for bringing the aforesaid subsequent event in the present Public Interest Litigation and also to restrain the respondent No. 12-company from proceeding further in establishing and starting its industrial unit. The Concerned collector rejected the application of the writ petitioners over claim of Objections raised in pursuance of the Respondent’s Industrial activities.                     The Gujarat High Court observed that there had been no appeal over the Collector’s Order and the commencement of such industrial activity which is in consonance cannot be subjected to a Public Interest Litigation. Hence the Gujarat HC did not entertain the Appeal.

In State of Gujarat v. Patel Raghav Natha,[3] respondent, who was an occupant of agricultural land, applied to the Collector, under s. 65 of the Bombay Land Revenue Code, 1879, for permission to convert the land to non-agricultural use. The Collector gave the permission in July 1960 on condition that the land shall be used exclusively   for constructing residential houses. The Municipal Committee, which had objected to the grant of permission before the Collector, moved the Commissioner for exercising his powers under s. 211 of the Code. The Commissioner, in October, 1961, passed an order in which, after reciting the objections of the Municipality and the arguments of counsel he boldly stated his conclusion that the land did not belong to the respondent and set aside      the Collector’s order without giving any reasons. The Commissioner’s order was quashed by the High Court on the ground that the Commissioner had no authority to pass the order under s. 211 of the Code.

Under Sub-Section (2)(a), the occupant must comply with all the laws/orders/notifications/directions given by either the Central Government or the State Government or any other competent local authorities having such power to commence the use of land for his Bonafide industrial purpose.

Complying with Sub-Section 2(b), the Occupant Must, within 30 days of the commencement of use of his land for bona fide industrial purpose, send a notice consisting of the date of commencement of such use along with other particulars as prescribed by this Act to the Collector and endorse a copy of the same to the Mamlatdar.

The ‘date of commencement’ of usage by the occupant of land for bonafide industrial purpose shall be deemed to have begun, under the ambit of this section, right since the time the occupant ceases to use the land for agricultural or non-agricultural purposes.

As Per the Provisions of Sub-Section (3)(a) and (b), the collector if satisfied that the occupant has validly commenced the use of land for a Bonafide industrial purpose under sub-section (1), he shall issue a certificate of commencement within such period as may be prescribed by rules made under the act. If the collector is not satisfied, he shall give the occupant an opportunity to be heard or refuse such certificate provided that the Certificate has not been issued under clause(a) and the Conversion Tax leviable under Section 67(A) is paid.

Section 4(a) levies penalties up to 10,000 along with other agricultural assessment as deemed proper by the collector over non-compliance of Notice and other particulars as given under sub-section 2(b) in a specific period of time.

As Per Section 4 (b), (i) and (ii) when the occupant commences the use of land for bona fide industrial purposes without fulfilling specified conditions or without receiving approval through the certificate, he would be held liable and would have to pay non-agricultural assessment to restore the land for its original use within such period as specified by a notice sent by the collector.

In Filatex v. Valsad,[4] An Industrial plant was supposed to be built to manufacture Texturized Yarn. The petitioner in this case was required to send a notice to the collector within 30 days from the commencement of the use of land for bona fide industrial purposes. The petitioner did send the notice within the specified time period but this notice was met with large number of objections from the villagers. The Court held that the petitioner shall continue with the construction of his land only after he gets clearance from the Collector of Valsad, preferably within one month from the date of the passing of the order.

An Occupant is Subjected to paying a Fine not exceeding 5000 along with  o one-hundred rupees per hectare of land which has not been restored per extra day for which such restoration is delayed after expiry of such period according to the notice given for such a purpose by the collector, for Not Abiding By the Provision set by Sub-section (4)(c)(i) and(ii).The Collector shall adopt methods which are necessary for restoration of such land to its original use and shall make the occupant liable to incur costs on this behalf.

The occupant shall commence bona fide industrial activity within 3 years of him having sent a notice to the Collector and 5 years from such date, he should have begun with the production of goods and services as per provision given under Sub-Section 5(a). The Occupant may extend his period of 3Years and 5Years provided; the extension application is accepted by the collector.

The Occupant on failing to abide by the Provisions of Sub-section 5(a) would be liable in addition to the Non-Agricultural assessment under Section 48, a further assessment of 5 Rupees per Square Metre of land till he commences his business activities – Sub-Section 5(b).

That’s Section 65B of the Gujarat Land Revenue Code For You !!!!

[1]  SCA No. 2780 of 2008

[2] 2014 SCC OnLine Guj 3442

[3]  1970 SCR (1) 335

[4] 2010 SCC OnLine Guj 11043