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Chapter 1
General
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| The business of the Law Department consists of the following:- |
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(1)
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General Administration of the
Department. |
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(2)
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Drafting- |
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(a) Legislative Project.
(b) Legislation.
(c) Unification of laws
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(3)
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Legal Advice- |
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Advice on legal matters referred to this
Department by the other departments of the Secretariat. |
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(4)
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Subsidiary Legislation. |
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(5)
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Publication. |
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(6)
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Conveyancing. |
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(7)
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Translation. |
| The business of the Law Department is transacted
by the Secretary to the Government and Legal Remembrancer assisted
by other officers in the Department.
The Law Department is generally guided by the procedure laid down
in the Secretariat Manual in the working of the Department. But,
in view of the special nature of the work in the Department sometimes
procedure slightly different is adopted in respect of certain items
of work in the department.
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Chapter 11
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GENERAL ADMINISTRATION
OF THE DEPARTMENT
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| Since the law Department is a separate unit
within the Secretariat, matters relating to the establishment, staff,
Budget, contingencies, furniture, stationery and all other administrative
matters of the Department are attended to in the Department itself.
The administration of the department of Law Officers including that
of the Administrator General and official trustee is also attended
by the Law Department. The following statutes are administered by
the Law Department:- |
(i) The Notaries Act.
(ii) The Ezhava Act.
(iii) The Nair Act.
(iv) The Kshatriya Act.
(v) The Nambudiri Act.
(vi) The Court Fee and Suit Valuation Act.
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Chapter 111
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| 1. |
Except as otherwise expressly provided in this Manual
, the Law Department is not , in respect of legislation , an originating
or initiating Department. The functions of Law Department with regard
to the preparation of legislation is to put into technical shape the
projects of legislation of which the policy has been approved. |
| 2. |
Every proposal to initiate legislation shall be considered
in the Department to which the subject matter of the legislation relates.
Once the policy is settled that Department shall consult the Law Department. |
| 3. |
Law Department shall consider the proposal and advice
the Administrative Department as to - |
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(i) need for the proposed legislation from a legal
point of view;
(ii) the competence of the State Legislature to enact the measure
proposed;
(iii) the requirements of the Constitution as to obtaining the
previous sanction of the President thereto; and
(iv) the consistency of the proposed measure with the provisions
of the Constitution and in particular those relating to the Fundamental
Rights
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| 4. |
The advice tendered at this stage will be of a general
character. The examination of the various provisions in detail will
be done at the drafting stage. The advice shall be with particular
reference to the following aspects:- |
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(1) whether the proposal relates to any of the matters enumerated
in Lists II and III of the Seventh Schedule to the Constitution,
in which case alone the State Legislature is competent to enact;
(2) whether there is any other law in force in the State which
relates to the same subject and serves the same object or which
can be made to serve the same subject with suitable amendments;
(3) whether the proposed legislation will have the effect of imposing
restrictions on the freedom of trade, commerce or intercourse with
or within the State, and if so, whether it will be saved by clause
(a) of Article 304 and if not whether the restrictions are reasonable
and required in the public interest and whether the previous sanction
of the President should be obtained in pursuance of the proviso
to Article 304(b) of the Constitution for the introduction of the
Bill in the Legislative Assembly;
(4) whether the proposed measure will offend any of the provisions
of the Constitution relating to Fundamental Rights.
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| 5. |
When the Administrative Department comes to a decision
as to whether the proposed legislation should be proceeded with and
forwards the file to the Law Department with a memorandum, a Statement
of Objects and Reasons and the Financial Memorandum(in cases where
the legislation involves expenditure from the Consolidated Fund of
the State) as required by rule 46 of the Rules of Business, the Law
Department shall prepare a draft Bill and return the file to the Administrative
Department with the draft. |
| 6. |
. If the approval of the Cabinet for the draft Bill
is obtained and the Administrative Department forwards the file to
the Law Department for preparing the final draft of the Bill under
rule 50 of the Rules of Business, the Law Department shall finalise
the Bill and return the file to the Administrative Department indicating
the formalities required to be complied with under the Constitution,
in respect of the Bill. |
| 7. |
In respect of certain types of Bills, the Constitution
requires certain formalities to be complied with before their introduction
in, or consideration by the State Legislature: |
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(1) Under Article 207(1) of the Constitution, no Bill which makes
provision for any of the matters specified in sub-clauses (a) to
(f) of clause (1) of Article 199 shall be introduced in the State
Legislature except on the recommendation of the Governor. These
matters are-
(a) the imposition, abolition, remission, alteration or regulation
of any tax;
(b) the regulation of the borrowing of money or the giving of any
guarantee by the State or the amendment of the law with respect
to any financial obligations undertaken or to be undertaken by the
State;
(c) the custody of the Consolidated Fund or the Contingency Fund
of the State, the payment of moneys into, or the withdrawal of moneys
from, any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of
the State;
(e) the declaring of any expenditure to be expenditure charged
on the Consolidated Fund of the State or the increasing of the amount
of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of
the State or the public account of the State or the custody or issue
of such money.
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No recommendation is, however, necessary for the moving
of an amendment making provision for the reduction or abolition of
any tax. Under Article 207(2), a Bill shall not be deemed to make
provision for any of the matters referred to in clauses (a) to (f)
of Article 199(1) by reason only that it provides for the imposition
of fines or other pecuniary penalties or for the demand or payment
of fees for licences or fees for services rendered or by reason that
it provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local purposes.
(2) Under Article 207(3) of the Constitution, a Bill, which, if
enacted and brought into operation, would involve expenditure from
the Consolidated Fund of the State shall not be passed by the Legislative
Assembly unless the Governor has recommended to the Assembly the
consideration of the Bill.
(3) Under the proviso to Article 304(b) of the Constitution, no
Bill or amendment for the purpose of imposing reasonable restrictions
on the freedom of trade, commerce or intercourse with or within
the State as may be required in the public interest, shall be introduced
or moved in the State Legislature without the previous sanction
of the President.
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| 8. |
When the Administrative Department returns the file after obtaining
the recommendation of the Governor, previous sanction of the President,
etc., wherever necessary, the Law Department shall send three copies
of the draft Bill with the Statement of Objects and Reasons and
the Financial Memorandum (Where necessary) appended thereto, to
the Secretary, Legislative Assembly for publication in the Gazette.
The Law Department shall also communicate to the Secretary, Legislative
Assembly the recommendation of the Governor, wherever it is necessary,
for the introduction or consideration of the Bill and also inform
him the nature of the motion which the Government propose to move
with regard to the Bill. Ten copies of every Bill falling within
the concurrent legislative filed shall be sent by the Law Department
to the Government of India, Ministry of Law.
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| 9. |
If a Bill is referred to a Select Committee the Law
Secretary or any other officer deputed by the Law Secretary in this
behalf shall attend all meetings thereof and the Law Department shall
assist the Legislature Secretariat in revising the Bill in the light
of the decisions taken at the meetings of the Committee and in preparing
the report of the Select Committee. |
| 10. |
Whenever orders of the Minister are received from the Administrative
Department concerned that an amendment should be moved to a Bill
which has been introduced in the Legislative Assembly, the Law Department
shall examine the proposed amendment and, if there is no legal objection,
draft the amendment in the proper form and forward a copy of the
draft amendment to the Secretary, Legislative Assembly. A copy of
the amendment shall be forwarded to the Private Secretary to the
Minister for the information of the Minister and another copy to
the Administrative Department from which the proposed amendment
was received. Regarding non-official amendments to Bills, the Law
Department shall follow the procedure laid down in rule 56 of the
Rules of Business.
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| 11. |
(1) After a Bill is finally passed and the Legislature
Secretariat sends a copy thereof as passed to the Law Department for
formal scrutiny, it is open to the Law Department to point out mistakes
in the Bill, if any, relating to printing, spelling, punctuation,
numbering of sections or clauses, or cross-references and marginal
headings, for correction by the Speaker under rule 91 of the Rules
of Procedure and Conduct of Business in the Legislative Assembly.
When fair copies of the Bill as passed by the Legislative Assembly
with the superscription "This Bill was passed by the Legislative
Assembly on . . . . . . . . ." and duly signed by the Speaker
are obtained from the Secretary, Legislative Assembly, the Law Department
shall take steps to obtain the assent of the Governor or the President,
as the case may be, in accordance with the procedure hereinafter laid
down. |
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(2) If the Bill does not require the assent of the
President, the file with three copies of the Bill duly signed by the
Speaker shall be submitted to the Governor along with a self contained
note explaining the scope and object of the Bill for signifying his
assent to the Bill.
(3) If the Bill requires the assent of the President, the file with
four copies of the Bill duly signed by the Speaker shall be submitted
to the Governor along with a similar note for reserving the Bill for
the consideration of the President. The Law Department shall thereafter
forward three copies of the Bill as reserved by the Governor to the
Government of India, Ministry of Home Affairs, together with six copies
each of the following documents requesting them to obtain and communicate
the assent of the President to the Bill:- |
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(a) Bill as introduced in the Legislative Assembly;
(b) Bill as reported by the Select Committee together with the
report of the Select
Committee.
(c) Bill as passed by the Legislative Assembly;
(d) Explanatory notes on clauses of the Bill;
(e) Extracts from the proceedings of the Legislative Assembly;
and
(f) Enactments sought to be amended or repealed.
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| 12. |
Bills falling under the following categories require
the assent of the President under the provisions of the Constitution:- |
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(1) Bills with respect to matters enumerated in List
III of the Seventh Schedule to the Constitution, which contain any
provision repugnant to the provisions of an earlier law made by Parliament
or an existing law with respect to that matter [Article 254(2)].
(2) Bills providing for matters specified in Articles 31 and 31-A
of the Constitution; and
(3) Bills which seek to impose or authorise the imposition of
a tax in respect of any water or electricity stored, generated,
consumed, distributed or sold by any authority established by any
existing law or any law made by Parliament for regulating or developing
any inter-state river or river valley (Article 288).
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| 13. |
13. (1) On receipt of the copy as assented to by the
Governor or the President, as the case may be, the Law Department
shall take steps to publish the Act in the Gazette after assigning
a number to the same and requiring the superintendent of Government
Presses to furnish the required number of spare copies of the Act.
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(2) On receiving the spare copies of the Act, the same
shall be distributed to the Administrative Department concerned, the
Translation Section for translating and publishing the same in the
Gazette, and to the Secretary, Legislative Assembly. Copies shall
also be forwarded to the Ministry of Home Affairs and the Ministry
of Law. After distribution of copies the whole file shall be retransferred
to the Administrative Department. |
| 14. |
(1) The provisions contained in paragraphs 2 to 6 (both
inclusive) shall, so far as may be, apply to Ordinances to be promulgated
by the Governor in exercise of the powers conferred by clause (1)
of Article 213 of the Constitution of India. In the case of Ordinances,
which before promulgation by the Governor, require the instructions
from the President, the instructions are to be obtained by the Administrative
Department.
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(2) Under the proviso to Article 213 (1) of the Constitution,
the Governor shall not without instructions from the President promulgate
an Ordinance if- |
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(a) a Bill containing the same provisions would under the Constitution
have required the previous sanction of the President for the introduction
thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing
the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same
provisions would under the Constitution have been invalid unless,
having been reserved for the consideration of the President, it
had received the assent of the President.
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(3) Where the Administrative Department
forwards the file to the Law Department with the orders of the Council
of Ministers approving a draft Ordinance and recommending its promulgation,
the Law Department shall submit the file to the Governor with two
Sign Manual copies of the draft Ordinance and a self-contained note
explaining the circumstances which necessitated the promulgation of
the Ordinance and the scope of the provisions contained therein.
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(4) When a file is returned by the Governor
after the promulgation of the Ordinance the Law Department shall assign
a number to the Ordinance and direct the Superintendent of Government
Presses to arrange for publishing it in the Gazette. Sufficient number
of spare copies shall also be obtained and distributed to the Administrative
Department concerned and the Translation Section for translating and
publishing the translation in the Gazette. A copy of the Ordinance
shall also be forwarded to the Secretary, Legislative Assembly for
laying the same before the Legislative Assembly as required by clause
(2) of Article 213 of the Constitution. Copies shall also be forwarded
to the Ministry of Law and Ministry of Home Affairs. |
| 15. |
(1) Personal laws, measures designed solely
to codify and consolidate existing enactments and legislations of
a formal character such as Repealing and Amending Bills shall be initiated
in the Law Department. |
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(2) In the case of codification and consolidation
of existing enactments, where there are differences between existing
provisions, the Law Department shall obtain the remarks of the Department
to which the subject-matter of the enactments relates as to which
provision would be suitable from an administrative point of view.
(3) After obtaining the remarks of the Administrative Department,
the Law Department shall prepare a draft Bill and return the file
to the Administrative Department for obtaining the orders of the
Minister concerned.
(4) The further procedure with Bills for codification shall be the
same as those Bills initiated at the instance of the Administrative
Department.
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| 16. |
(1) Non-official Bills received from
the Secretary, Legislative Assembly, shall be considered by the Law
Department in its technical aspects such as whether there is any other
law in force in the State which relates to the same subject and serves
the same object, the competence of the State legislature to enact
the measure, the need for the previous sanction of the President or
the recommendation of the Governor, etc., and the file shall, with
its opinion , be transferred to the Administrative Department concerned.
The Law Department shall also submit a copy each of the bill to the
Chief Minister and the Governor.
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(2) After the receipt of the file from
the Administrative Department fixing the position of Government with
respect to the Bill, the Law Department shall follow the procedure
herein before laid down for Official Bills. |
| 17. |
As soon as copies of a Central Act or Ordinance
are received from the Government of India, Ministry of Law, with directions
to republish the same in the Gazette, the Law Department shall take
steps to republish the Act or Ordinance in the Gazette and to obtain
the required number of spare copies from the Government Press. Copies
shall be distributed to the Administrative Department, and the other
Sections of the Law Department. In cases where it is considered necessary
that translation of a Central Act or Ordinance has to be published
in the Gazette, the Law Department shall send copies of the Act or
Ordinance to the Translation Section for preparing the translation
of the Act or Ordinance and for arranging its publication in the Gazette.
As soon as a Central Act or Ordinance is republished in the State,
the information shall be furnished to the Ministry of Home Affairs
as to the number and date of the Gazette in which the Central Act
or Ordinance is republished. |
| 18. |
The Law Department shall arrange for the
exchange of copies of Acts and Ordinances and bills of this State
for copies of the Act, Ordinances and bills of the other States. The
receipt of the Acts, Ordinances and Bills of other States shall be
entered in a register kept for the purpose. Steps shall also be taken
to get such Acts, Ordinances and Bills bound annually, to be kept
in the Law Department Library . |
| 19. |
All papers relating to the commencement and prorogation of the
Legislative Assembly and the transaction of legislative business
in the Legislative Assembly shall be dealt with in the Law Department.
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Chapter IV
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| 1. |
The advice of the Law Department may be
sought on the following matters:- |
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(a) interpretation of statutes, statutory
rules, bye-laws, orders, deeds.
(b) cases in which disputes have arisen or are likely to arise
between Government and other persons or action in a Court of Law
is threatened against Government.
(c) defamatory attacks on Government servants.
(d) cases where sanction of Government has been sought for prosecuting
Government servants.
(e) matters relating to disciplinary proceedings.
(f) appeals from acquittals and filing of appeals where interests
of Government are involved.
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| 2. |
The advice of Law Department may not be
sought on the following matters:- |
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(a) hypothetical cases.
(b) ordinary departmental procedure of which the Administrative
Department itself has special knowledge.
(c) points arising before a Government Officer acting as an arbitrator,
or umpire in any dispute.
(d) cases where subordinates of Government are required by statutes
to exercise judicial powers.
(e) plaints, written statements, etc., prepared by Law Officers.
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| 3. |
A reference to the Law Department for
their opinion on any legal matter may be made by any Department of
the Secretariat. The Heads of Departments should not directly refer
any matter for the opinion of the Law Department. They should address
the Administrative Department concerned and the Administrative Department
after examining the question shall forward the case with their remarks
to the Law Department. If any reference is received direct from the
Head of Department it shall be returned to him for forwarding it to
the concerned Administrative Department. |
| 4. |
(a) A consolidated statement of facts
must be given while referring a case for advice. Proper references
should be made to all relevant materials within the knowledge of the
Department making the reference. |
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(b) The points on which advice is sought
should be stated clearly and categorically. |
| 5. |
The opinion expressed by the Law Department
shall not be quoted or referred to as an opinion b y the Law Department,
in any Government proceedings or communications. |
| 6. |
Copies of the remarks offered by the Law
Department to various Departments will be collected and bound month-war
in the Law Department. |
| 7. |
The indices will be prepared and arranged
according to the alphabetical order of statutes and published monthly.
The monthly collections are again rearranged and digested in annual
volumes. |
| 8. |
The opinion of the Advocate-General, (if any, obtained), case laws
referred to, followed, distinguished, etc., are invariably indicated
in these indices.
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Chapter V
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| 1. |
Whenever it is proposed in a Secretariat
Department to issue rules, bye-laws, notifications or orders under
any statute, that Department shall carefully prepare a draft of the
same in consultation with the concerned Head of the Department. This
will ensure that the needs of the departmental head have been properly
assessed and the requirements adequately met. The draft so got up,
may usefully be compared with the corresponding rules or notifications
framed by the Government of India or by other State Governments, on
the same subject and necessary alterations made. The draft should
then be fair typed in half margin with a preamble and referred to
the Law Department with a detailed explanatory note. Precedents, if
any, should also be put up invariably. |
| 2. |
The Law Department shall then examine the
rules with reference to the vires and form of drafting. |
| 3. |
The alterations, if any, in the draft forwarded
by the Administrative Departments shall be first made in pencil. After
approval of the alteration by the passing officer, they shall be made
in red ink, the pencil corrections shall be erased off before the
file is returned to the Administrative Department. If the corrections
are numerous or when the draft has to be changed revised draft will
be forwarded.
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Chapter VI
Publication
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| 1. |
The Department publishes annual volumes
of the Acts and Ordinances passed each year. Annual volumes of the
statutory rules and notifications issued by the State Government are
also published. Similarly annual volumes are also published of the
more important rules and notifications issued by the Central Government
which are republished in the State Gazette. Lists containing references
to the enactments that are applicable to the State as on 1st January
of every year are also published. |
| 2. |
The reprinting of individual enactments
with amendments incorporated is also undertaken by the Law Department
whenever such reprinting becomes necessary. |
| 3. |
The State Code containing the enactments
in force in the State and the Rules Code containing the rules and
notifications in force in the State are also published. The State
Code and the Rules Code are periodically revised. |
| 4. |
The Law Department also maintains folder
volumes containing individual Acts and the rules and notifications
issued thereunder as corrected up-to-date. These folder volumes will
not be removed from the section on any account and will be available
in the sections for reference purposes. |
| 5. |
Registers containing details regarding the Acts passed, the amendments,
if any, to the Acts, the date on which the Acts come into force,
the rules and notifications issued under each Act, etc., will be
maintained by the Law Department.
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Chapter VII
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| 1. |
The conveyancing work consists of - |
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(i) the scrutiny of title deeds;
(ii) drafting and scrutiny of the deeds of conveyance;
(iii) offering legal adv ice to other Departments of the secretariat
on stamp duty, . registration, etc.
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| 2. |
The title deeds are generally scrutinised
with particular attention to encumbrances for a minimum period of
24 years and with reference to the personal law of the party. In scrutinising
the title deeds, the original documents shall always be insisted on,
the certified copies being accepted when the loss of the original
has been properly explained away and the Administrative Department
have recorded that they are satisfied that the original has been lost.
In case the Administrative Department does not make such a record,
their attention shall be specifically drawn to that matter and the
remarks made only subject to their being satisfied about the loss
of the originals. |
| 3. |
The stamp duty payable, shall be indicated
in the remarks and where registration is necessary it must also be
mentioned. |
| 4. |
A stock file of model forms used in conveyancing shall be regularly
maintained, and these forms shall be adhered to as far as possible.
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Chapter VIII
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The State Acts and Ordinances are translated
into Malayalam by the Translation Section of the Law Department. Acts
and Ordinances are also translated into Tamil and Kannada when such
translations are found necessary. Translation of rules and notifications
which have statutorily to be translated into regional languages is
also attended to b y the Translation Section. The Translation Section
also attends to translation of documents into English whenever such
translation is found necessary. All other miscellaneous translation
work at Government level is attended to by this Section. |
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Chapter IX
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Library
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| 1. |
The Library is mainly intended for the reference
purposes of the Law Department. |
| 2. |
Cataloguing of books.-The Librarian
shall maintain an up-to-date copy of the catalogue of books in the
Library with sufficient space for inserting additions. The catalogue
shall be in two parts, the first containing a list of the books arranged
according to the subjects and the second part containing a list of
the books arranged according to the names of the authors in the alphabetical
order. The necessary additions to the lists will be made immediately
after new books are received and entered in the stock register. Annual
and other periodical publications, such as departmental administration
reports are not numbered, the books being arranged in the Library
almirahs in accordance with the dates of the publication. |
| 3. |
Issue of books.--Issue of books
in the Library will be only on the presentation of a written requisition
signed by the officer applying for the book. |
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(i) The Librarian shall supply the books
promptly, without any delay. In case the book applied for is already
with an officer, the Librarian shall approach the concerned officer
and if the book can be spared by him, may take the same. The supply
of books shall be entered b y the Librarian in the register kept for
the purpose.
(ii) Books shall ordinarily be supplied only to members of the
staff of the Law Department. When an officer of a Department other
than the Law Department requires a book for reference, a formal
written request must be made for the purpose signed by an officer
not below the rank of an Assistant Secretary of the Department concerned
and the book will be issued under the written order of an officer
not below the rank of an Assistant secretary of the Law Department.
A separate register shall be maintained to record such issue of
books. In all such cases, the requisition shall be countersigned
by the Officer of the Law Department who sanctions the issue of
the book.
(iii) Issue of Reminder Memo.-If a book is kept by an officer
for more than one month, the Librarian shall issue to that officer
in the first week of every month a Reminder Memo showing particulars
of the books outstanding from him. The officer shall return the
books within three days from the receipt of the memo or obtain orders
from his superiors for keeping the book further.
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| 4. |
Keeping books up-to-date.-The Librarian
shall see that all the statutes, rules etc., in the Library are kept
up-to-date. As regards books with the officers, it is primarily the
function of the Stenographers attached to the officers to keep the
books up-to-date. |
| 5. |
Gazettes of Kerala, Madras and Central
Governments are bound into convenient volumes and kept year war. The
Gazettes are not to be taken out of the Library. They will under no
circumstance be allowed to be taken out of the Department for the
reference of any other Department or officer.
Copies of all Bills published by the Secretary of the State Legislative
assembly and the Select Committee Reports when published will be
collected by the Librarian and arranged in the chronological order,
contents prepared and bound into annual volumes and kept in the
Library for reference purposes.
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