What is the meaning of legal opinion from a lawyer?

People take legal opinion very lightly. In fact some lawyers also hand out opinions as if they are predicting about the formation of Government of India in 2014. That is without any understanding of the facts and clarity on the law on subject. This is most unprofessional. Even more unprofessional is people or clients seeking half-cooked and half baked opinions by compelling a professional lawyer with some misleading reason. Continue reading

Occupied Field.

Doctrine of Occupied Field is attracted in a variety of ways. For example if a special law covers a subject, general law stands automatically excluded because that field of law is already occupied.

Claim of Gratuity made¬† under Section 33C-2 Industrial Disputes Act instead of Payment of Gratuity Act — Validity.

It was urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose.

Supreme Court accepted this contention. There is anther example of doctrine of occupied field.

In this case regarding prohibition on manufacture and sale on Gutka (Pan Masala with chewing tobacco), under Prevention of Food Adulteration Act, it was contended that Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (Act 34 of 2003), referable to entry 52, List I and entry 18, List III to the Seventh Schedule of the Constitution of India,  occupies the entire field in relation to tobacco. Therefore the State Government could not do indirectly what it can not do directly. Supreme Court of India accepted the proposition and quashed the notification under PFA Act.

Though it was not relevant in this judgement, Article 254 of Constitution of India also deals with the aspect of occupied field and any Union/Central legislation would have effect of repealing the State Legislation on the same subject if it is in conflict with Central legislation.

Read more details about this doctrine at LawMystry.com