Legally Speaking – Commonly Asked Legal Questions

 

The following are some commonly asked questions for which quick and easily accessible answers are often hard to find. If at all some explanation is found, it is usually in extremely lengthy official terms.

Our aim is to attempt to remove such difficulties and provide easy access to these frequently asked questions.

 

What are the issues Citizens must know on Conveyance, Cooperative Housing Society Registration and Stamp Duty?

In case of purchase of flat in a Cooperative Housing Society, stamp duty is required to be paid on the basis of market value mentioned in the Ready Reckoner of that particular year when purchase took place, issued by the State Govt. every year.  The transaction also has to be registered with Sub-Registrar’s office within whose jurisdiction the property is situated.  Depending upon the year of construction of the building there is rebate in the valuation. 

It is advisable to get the value of the property adjudicated by the stamp office before paying the stamp duty, whereby you avoid the sale deed being impounded for under valuation. 

In the event of the builder not transferring the land and building to the name of the society, there is a provision whereby the property is deemed to have been conveyed to the society, on an application made by the Society to the sub-registrar who under his signature shall sign the Deemed Conveyance.

 

What are the issues involved in Leave &License (L/L) of a property/flat and what is the process?

Leave & License agreement must state the exact description of the property given on License.  It should also mention the period of the License and License fee or compensation.  Licensor needs to take permission of the Society to give his flat on L/L and would attract non-occupancy charges by the Licensor as per the Society Byelaws.  L/L is required to be registered and will attract stamp duty on the basis of license fee, deposit and period of lease.

A copy of the L/L has to be given to the local Police Station within whose jurisdiction the property is located.

 

What legal aspects should a person keep in mind when purchasing or selling a flat?

The person purchasing a flat should ensure that the title of the seller is clear and marketable and the Seller is in a position to give vacant and peaceful possession of the premises on or before the completion of the Sale. The Purchaser must ensure that the Written Permission of the Landlord is obtained in case of tenanted premises for transfer to his name and in case of premises in Cooperative Housing Society, the Society has to give NOC for such transfer.

 

What are the legal aspects involved in starting a small business at home?

There is no prohibition if an individual starting a small business at home.  However if the premises are meant for residential purposes and are tenanted premises, then permission by the Landlord will be required for changing the user of the premises. Otherwise it amount to violation of conditions of tenancy and may result in eviction of the tenant.

If the premises are residential in nature but in a Co-Operative Housing Society, then without the permission of the Society no business can be conducted in the residential premises. However, if the rules of the society contemplate complete prohibition of user other than residential, then the society cannot grant permission unless its rules are amended.

Any kind of business would attract the provisions of Bombay Shop & Establishment Act requiring the business to be registered either as Shop or Establishment as defined under the said Act.  However, if a person carries on his profession for sustaining himself in a part of the house, then no such permission is required, such as an Advocate, CA, Architect, Doctor can use a small portion of the premises as office or consultation place then the same shall not be treated as Shop or Establishment as defined under the said Act. Recently Bombay High Court held that a Doctor’s Clinic does not require a license under Bombay Shop & Establishment Act.

 

What are the legal provisions involved when dealing with domestic help in the case of security, child rights and minimum wages?

At the moment there is no law dealing with the financial security or the minimum wages of the domestic help.  However, a Draft Bill is on the Anvil.  However there is a law* preventing minor children from being employed as domestic help.

*Mention which law

 

What are the different types of medical malpractice?

The medical malpractice could be of two types.  There could be medical negligence for such damages and prosecution is provided and medical malpractice could include a person not qualified to render to medical services because of lack of qualification and the lack of experience in dealing with the medical problem.  The same could attract provisions of Criminal law including cheating under section 420 of the Indian Penal Court or in case physical harm the relevant section of IPC could also be attracted.

 

How does an individual file a case for medical malpractice?

As regards issues under Consumer Protection Act in order to sue for damages an application has to be made before the appropriate Consumer Court depending upon the quantum of compensation claimed and the jurisdiction within which cause of action arose.

Simultaneously Criminal proceedings can also be initiated under the relevant IPC Section/s, in the Court for criminal cases.

 

How to draft an Affidavit?

An Affidavit is a document on Oath and the same contains facts which the author of the Affidavit states on solemn affirmation.  The Affidavit has to be solemnly affirmed or sworn before an authority under Indian Oaths Act.  An Affidavit can also be affirmed by the Notary Public – a Person who is authorised to administer Oath under the Notaries Actand normally such a Person is an Advocate or Solicitor. A Notary can also be Gazetted Officers and Officers of the Courts, such as Registrar and their subordinates such as Assistant Registrar or Deputy Registrar.

Any subsequent statements on an Affidavit or under Oath, contrary to the earlier statements on an Affidavit, would invite criminal proceedings for perjury under Indian Penal Court.

 

How to register an FIR?

There are two types of offences viz. Cognizable and Non-Cognizable offence.  In case of Non-Cognizable Offence, the Police Officer takes down the complaint and because of the nature of the offence, he is not required to take any further steps, in which case the complainantif he deems fit, will have to file a private complaint before a Magistrate and if the Magistrate finds a prima facie case made out in the complaint, then he will order investigation by the police.

In case of Offence which is of Cognizable nature, the police is bound to take down the complaint in the form of first information report (FIR) and is bound to take action according to law.

An FIR has to be registered with the Police Station in whose jurisdiction the offence deemed to have been committed. After lodging FIR the Police is bound to investigate the matter according to law.

 

What are the rights of an Individual when it comes to the Police searching their premises?

Ordinarily the premises of an individual cannot be searched by the police without obtaining Warrant from the Magistrate for such search

 

What Rights does an Individual have while being arrested?

When an Individual is arrested, the Police is required to produce the Individual within 24 hours before the Magistrate after registering FIR.

If the law permits, depending upon the alleged nature of the offence, then an application made on behalf of the individual, bail to be granted.  However if the Police requires the custody of the Individual for making further investigations and informs the Court that if the Individual is granted bail, then it is likely that the Individual may abscond or go out of the jurisdiction of the Court or may tamper with evidence or may influence the witnesses to the alleged offence, then the Court may grant Police Custody for a particular period depending upon the nature and investigation to be done. But if no further investigation is required to be done, then the Magistrate may grant Judicial Custody, in which case it would be easier for the Individual to seek bail.

 

What are the different legal aspects related to the Insurance sector?

The Insurance Companies being service provider are covered under the Consumer Protection Act and the denial of claim either in part or in full, could be redressed under Consumer Protection Act by applying to the appropriate Consumer Redressal Forum or opt.

 

What legal aspects does a person need to keep in mind if he or she owns a pet?

There is no specific law as regards owning or keeping pets.  However the other residents of the co-op. society or tenants in case of tenanted premises can certainly object if the pet creates nuisance or is dangerous to the health and limb of the neighbours.  For certain pets it is necessary to obtain Municipal license which the owner must procure and to avoid nuisance the owner should confine the pet to his own premises and not allow the pet to loiter in the common areas of the building which may eventually lead to nuisance to others.

 

How to register a marriage and what are the various Acts under which a marriage can be registered?

There are two types of marriages i.e. under Personal Law or under Special Marriages Act.  If a marriage is under Personal Law then after the marriage takes place the priest or person who officiates marriage has to sign marriage registration form along with the parties to the marriage and then the marriage is registered in the office of the Marriage Registrar.

If the marriage is under Special Marriage Act then, thenordinarily thesaid marriage takes place in the office of the Marriage Registrar after completing formalities required under the law and that itself is a registered marriage.

When the Parties want the Marriage Registrar to do the registration of the marriage at a place outside his office, then on payment of certain statutory amount, it can also be done at a place of the choice of the marrying parties.

The Special Marriage Act – The purpose of enacting the Special Marriage Act is for National Integration whereby, a Man and a Woman who are entitled to marry under the provisions of the Special Marriage Act, can do so even if they are from different religions.

 

What are the various provisions by which Divorce can be obtained and a Marriage can be annulled?

Every religion has its own marriage and divorce laws and the procedure laid down therein has to be followed.  Annulment is also part of personal law.  When the prerequisites of marriage are not fulfilled, then the marriage is not a valid marriage in the eyes of law and on the application of any party the same can be annulled.

 

What are the legal rights of divorcees and widows in matters of inheritance and property disputes?

The legal rights of widows and divorcees in the matter of inheritance and property, the same are enshrined in the Personal Law applicable to such widows or divorcees.  However as per the divorce where women are concerned, they are entitled to alimony which is calculated on various circumstances including the financial status of the divorcee and the ex-husband.

With the change of circumstances, the quantum of alimony can vary, if the financial status subsequently changes.  However, the Divorcee will have no share or right of inheritance of the property of her ex-husband except right to alimony as mentioned above.  As regards the right of the widows, she will have share equivalent to her deceased husband’s mother, (if living) and her children in the property of her deceased husband.

 

What are the legal provisions, if any, regarding Maternity leave?

As far as Maternity Leave is concerned, the same is covered by the provisions of Labour Law and there could even be a Written Contract with the employer as regards maternity leave.

 

 

These questions have been answered by Rajan Jayakar, Advocate and Solicitor, and Trustee, V Citizens Action Network.

 

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