Mentoassociates.com – Legal Articles

1. GST (Goods and Services Tax) is an indirect tax which came into effect on 01-07-2017. It is levied on the supply of goods and services. It replaced many other indirect taxes that existed in the country and brought in one indirect tax for the entire country. It is a comprehensive, multistage, destination based tax, which is levied on every value addition.
2. It is a multistage tax, as it is levied at various stages-from manufacturing to final sale to the consumer. It is levied on the value addition that happens at each stage, during the sale of a product. GST is destination based, as it is levied at the point of consumption- the entire tax will go to the place where the goods are finally consumed.
3. Businesses whose turnover exceeds Rs 40 lakhs per annum (Rs 10 lakhs for North East and Hill states) require registration under GST Act and they will be provided a GST Identification Number(GSTIN).For few businesses GST registration is compulsory irrespective of the turnover limits.  
4. Advantages of GST:
5. It removes the cascading effect( tax on tax effect)  and attempts to reduce the cost of goods
6. It is more technologically driven.
7. There are 3 taxes that are under the GST regime:
8. CGST- Central Goods and Services Tax-levied on intra state sales- Collected by Central government- 50% goes to the Central Government and 50% goes to the State Government
9. SGST- State Goods and Services Tax-levied on intra state sales- Collected by State Government- 50% goes to the Central Government and 50% goes to the State Government
10. IGST- Integrated Goods and Services Tax-levied on interstate sales-Collected by Central government and shared between Central Government  and States.

With a section of the General Public not in a mood to stay indoors and support the governmental initiatives for controlling the deadly Corona virus, the various state and Central governments are resorting to penal provisions to book the offenders. Some of the commonly resorted penal provisions are discussed below:
EPIDEMIC DISEASES ACT, 1897 Section 3 – Penalty- Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code 1860.
INDIAN PENAL CODE, 1860 Section 143 IPC- Punishment for being a member of an unlawful assembly-Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 147 IPC- Punishment for rioting- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 149 – Every member of unlawful assembly is guilty of offence committed in prosecution of common object
INDIAN PENAL CODE, 1860 Section 188 – Disobedience to order duly promulgated by public servant- An offender shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
INDIAN PENAL CODE, 1860 Section 269 – Negligent act likely to spread infection of disease dangerous to life- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 270 – Malignant act likely to spread infection of disease dangerous to life- Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 283 – Danger or obstruction in public way or line of navigation- Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.

For most Indians, the term LOC would normally mean the Line of Control. However in Indian legal context LOC means Lookout Circular.

Meaning of LOC:
•It is a circular used by authorities to check whether a travelling person is wanted by the police. LOC is a coercive measure to make a person surrender to investigating agency or courts of law. It is generally issued against absconding criminals/ accused to stop them from entering or crossing borders or to track /detain the wanted person and hand them over to appropriate authority.

Types of LOC:
•Local LOC: It is limited to a particular town / city area. In this case, usually the LOC is issued to the local Airport, Sea port, Train or Bus stations.

•National LOC: Is a nationwide circular to all the Airports, Seaports, and border agencies across the border within a country.

•International LOC: International circular to different countries’ Airports, Seaports and across the international Border agencies. This has a limitation of bilateral understanding between the countries.

•Section 498A IPC and LOC: Usually issued by the Police against the accused NRI husband and his family members after the Police register an FIR. In some cases, the Court orders the same against the accused NRI’s, if the accused does not surrender to the court within the stipulated time interval given.

Authority to issue LOC:
•LOC can be issued only with the approval of an officer not below the rank of Deputy Secretary to the Government of India/ Joint Secretary in the State Government /Superintendent of Police concerned at the district level. It can also be issued by the court before which the criminal case lies.

Principles to issue LOC:
The basic guidelines regarding the issuance of LOC’s in relation to Indian citizens issued by the Ministry of Home Affairs are as follows:

•The request to issue/opening of LOC must be issued with the approval of an officer in authority. The authorities includes the Ministry of Home Affair, Ministry of External Affairs, the Customs and Income Tax Department, Directorate of Revenue intelligence, Central Bureau of Investigation, Court, Interpol, Regional passport Officers, Police authorities in various States, etc.

•Lookout circulars/notice for all immigration check posts against any Indian person can be issued only in the format prepared by the Home Ministry.

•The notice issuing agency must give full identification details of the accused person on an already prescribed format. LOC will not be issued for less than three identity parameters other than name of the accused.

Performa of LOC:
•The request for opening of LOC is required to be made to all immigration Check-posts in the country in the Official Format prescribed by the MHA.
•The details of the person looked out for in the circular includes: Name, address, Picture / photo or description of the person’s physical appearance, Passport number/details, other unique identification card number, alleged offence details / case involved in.
•In cases linked to, terrorist, anti national elements etc, LOC can be issued without complying with all rules, parameters or prescribed Performa.

Validity of LOC:
•LOC is valid for a period of one year. However, in case the originating agency wants to extend the validity beyond one year, it can ask for the extension before the expiry of the one-year period. If no request is made for the extension of the LOC within the stipulated period of one year, the Immigration Officer concerned is authorized to suspend the LOC.
•In the case of Court and Interpol, LOC does not expire within one year.

Consequences of LOC:
•Issuance of LOC can impact different persons differently. It curtails person’s ability to travel in and outside of country. The person has to face arrest or detention at the place where found.

Right to Information:
LOC is highly confidential document. Unless the case is high profile, whether the LOC is issued or not is not known to public at large.

Still one can try to get the information from the following sources:

•Police Station where the FIR is lodged
•District SP/DSP Office or similar rank officer in any investing agency.
•Immigration Authorities
•Foreigner Regional Registration Office (FRRO) in case of NRI.
•Trial Court records, if court have initiated the issuance of LOC.

Steps to be followed when LOC is issued:
•Have all the legal documents with you.
•Obtain Anticipatory bail in the case.
•Confirm whether the LOC is issued against you by the police / court and also the type of LOC.
•Show the certified copy of the Anticipatory bail to the authorities whilst entering the country. For e.g.: to immigration officers in the airport during the immigration check.
•Authorities should take a photocopy of the Anticipatory bail and hand back the original to you, so that you take your originals with you and proceed.
•Moreover, if the authorities try to detain you, get in touch with concerned Police (Sub Inspector / Deputy Superintendent Police/Investigating Officer) to inform the immigration authorities that you are already enlarged on Anticipatory bail and that they do not require your arrest. If they fail to do so, the victim can file a complaint against them next day detailing the violation of your rights and the contempt of the court order i.e. Anticipatory bail.
•Whilst regularizing the bail or whilst seeking the regular bail in the court, file a supplementary application seeking the LOC to be lifted.
•Failing to file supplementary application, one should look for the bail conditions to make sure there are no restrictions like not to leave the country without prior permission of the court. If there is such condition, please do get the permission from the court and keep the certified copy of the court’s order permitting your departure from the country to produce before the immigration officers in the airport or sea-port.
•One need to push the police to forward the court order to the concerned authorities (the concerned police station and in turn to the immigration authority at the port) to lift the LOC altogether as well as keeping the certified copy with yourself in hand. You need to request the copy of the confirmation for the same from the Police or ask for a letter confirming the same (this is in addition to the court order).

Cancellation or Lifting of LOC:
LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
After getting LOC withdrawn by the authority or court, apply for multiple certified copies of the same. Provide one certified copy with covering letter to investigating officer; SP/DSP concerned and send a copy to the nodal officer at, ‘Deputy Director, Bureau of Immigration (Bol), East Block-VIII, R K Puram, New Delhi-110066.
If you have LOC removal court order, the immigration officer would contact the originator and only on confirmation the LOC will be cancelled or lifted.

Authored by:
Adv. Shirin Yusuf,
Associate,
MENTO ASSOCIATES.

JURISDICTION in a lay mans language means ‘The official power to make legal decisions and judgements’. However, in a deeper sense it means ‘The authority given to a court to try cases and rule on legal matters within a particular geographic area over certain types of legal cases’.

SECTION 498(A) OF THE INDIAN PENAL CODE:
Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

“Cruelty” means:
a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Normally, every criminal offense is inquired into and tried by a court within whose local jurisdiction it is committed. However, as per section 179 of the Code of Criminal Procedure, 1973, an offense can also be tried by a court within whose jurisdiction the consequence of the offense ensues.

Taking the spirit of Section 179 of the Code of Criminal Procedure, 1973, in a landmark judgment in Rupali Devi V State of Uttar Pradesh and Others (AIR 2019 Supreme Court 1790), Supreme Court held that the ‘Complaint alleging cruelty can be filed in the courts where wife takes shelter after leaving or driven away from matrimonial home’
The Hon’ble Supreme Court was of the view that even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts may not occur at the parental home, there can be no doubt that the mental trauma and psychological distress caused by the acts of the husband including verbal exchanges that compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Therefore, the mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.
It is further opined that, even the silence of the wife may have an underlying element of an emotional distress and mental agony. The wife’s sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at parental home where she has taken shelter. The adverse effects in the mental health in the parental home though on account of acts committed at the matrimonial home amount to commission of cruelty within the meaning of Section 498-A at the parental home.

The three-judge bench interpreted the legal provision during a reference made in 2012, to decide whether a woman forced to leave her matrimonial home on account of cruelty can initiate and access the legal process within the jurisdiction of the courts where she was forced to take shelter.

In reference, the court held that the case can be lodged by the wife at her parental home even when no overt act of cruelty or harassment is committed by the husband there. The offences of such kind are contemplated under Section 179 CrP.C.

CONCLUSION:
Therefore, the courts at where the wife takes shelter after leaving or driven away from matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on factual situations, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of Indian Penal Code.

Authored by:
Adv MEGHA MOHAN
Associate
MENTO ASSOCIATES

Many times while traveling by air, we face situations like delayed or cancelled flights, and feel helpless to deal with such situations. This article will highlight obligations of airlines towards its customers and customer rights in such situations.

OBLIGATIONS OF AIRLINES:
The following obligations are applicable to passengers traveling not only on scheduled flights but also on non scheduled flights and foreign carriers operating to /from India if flight is delayed or cancelled or both.

1. Facilities to be offered to Passengers:
If the passenger has checked in on time and if the airline expects a delay beyond its original announced scheduled time of departure or a revised time of departure of 2 or more hours then passengers shall be offered free of charge the following

a. Meals and refreshment in relation to waiting time.
b. Hotel Accommodation when necessary (including transfers).
c. Airlines shall pay particular attention to the needs of persons with reduced, mobility and any other person(s) accompanying them.

2. Compensation:
The passengers have right to get compensation along with facilities mentioned above, if flight is delayed or cancelled or both.

Flight delayed and cancelled:
a. An amount equal to 200% of booked one-way basic fare plus airline fuel charge, subject to maximum of Rs. 20,000/- in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure.
b. An amount equal to 400% of booked one way basic fare plus airline fuel charge, subject to maximum of Rs. 20,000/- in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure.
c. In case passenger does not opt for alternate flight , refund of full value of ticket and compensation equal to 400% of booked one way basic fare plus airline fuel charge subject to maximum of Rs. 20,000/-

Flight delayed:
If flight is only delayed, along with the facilities mentioned before, the passenger has right to get alternate flight as acceptable to the passenger or provide compensation in addition to the full refund of air ticket in accordance with the following provisions.
a. Rs. 5,000/- or booked one way basic fare plus airline fuel charge, whichever is less for flights having a block time of up to and including 01 hour.
b. Rs. 7500/- or booked one way basic fare plus airline fuel charge, whichever is less for flights having a block time of more than 01 hour, and up to and including 02 hours.
c. Rs. 10,000/- or booked one way basic fare plus airline fuel charge, whichever is less for flights having a block time more than 02 hour.
Note: No financial compensation shall be payable to passengers who have not provided adequate contact information (email id or Phone number).

NO OBLIGATION ON AIRLINES TO COMPENSATE:
The operating airline would not have any obligation to pay compensation in cases where the cancellations and delays have been caused by an Event(s) of Force Majeure i.e. extraordinary circumstances beyond the control of the airline, the impact of which lead to the cancellation/ delay of flight(s), and which could not have been avoided even if all reasonable measures had been taken by airlines.

Such extraordinary situations are:
a.Political Instability
b.Natural Disaster,
c.Civil war
d.Insurrection or riot
e.Act of God
f.Explosion
g.Government Regulation or order affecting the aircraft.
h.Strike and labour disputes causing cessation
i.Slowdown or interruption of work
j.Meteorological Conditions
k.Security Risks
l.Cancellation or delay attributable to Ari Traffic Control
m.Any other factors that are beyond the control of airlines

PASSENGER REDRESSAL:
a. When affected by a cancellation or a long delay or both the passenger may complain directly to the airline in the event the airline has not provided the compensation and /or reasonable facilities as specified above.
b. The passenger may file the grievance on Air Sewa App or Portal.

YOUR LAST RESORT:
If the Airlines fail to fulfill the obligation to assist you and if you as a passenger are not satisfied with the resolution of grievance by air line and/or Air Sewa, the passenger has liberty to complain to Consumer Courts.

Authored by:
Adv. Shirin Yusuf
Associate,
MENTO ASSOCIATES.

There has been a long-standing confusion as to whether the value of goods/services, as the case may be, or the compensation claimed in the complaint, alone will be considered to determine the pecuniary jurisdiction of the appropriate Consumer Forum.

In the landmark judgment delivered by the National Consumer Disputes Redressal Commission, New Delhi, in the case of Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd., the issue under consideration, which was res integra, was finally put to rest. In this case, it was decided that a perusal of Sections 21, 17 and 11 of the Consumer Protection Act, 1986, makes it clear that the aggregate of the value of the goods/services, as the case may be and the amount of compensation claimed in the complaint, if any, should be considered for determining the pecuniary jurisdiction of the appropriate Forum. The value of the goods/services, alone, cannot be considered to determine jurisdiction. Similarly, only the amount of compensation claimed in the complaint, if any, cannot be considered to determine jurisdiction. Therefore, the aggregate of the value of goods/services, as the case may be, along with the amount of compensation claimed in the complaint, if any, must be taken into account to ascertain the pecuniary jurisdiction of the appropriate Forum.

In the case of immovable property, the question that arises is, whether the market value of the flat/apartment/immovable property, or the price at which the same was bought by the customer must be considered to determine the pecuniary jurisdiction of the appropriate Forum. This was decided as, the price at which the flat/apartment bought, must be considered and not the market value of the same, as the latter is always subject to change and is therefore, rendered as highly unreliable, although the term ‘value’ used in the specific piece of legislation might suggest to be ‘market price’.

Where a class or representative complaint is instituted, the aggregate of the value of the goods/services, as the case may be, along with the compensation claimed, if any, in the complaint will be considered to determine jurisdiction. It was held that the whole object and purpose of a representative complaint would be destroyed if the value of the goods/services and compensation of only an individual customer was considered and not the aggregate of all the customers who have the same interest against the same respondent.

A plethora of cases, namely, Ravi Misra v. Amit C. Prabhu, etc, have followed the decision rendered in this case, and rightly so.

AUTHORED BY:
VISHNU P V
Associate,
MENTO ASSOCIATES.

BBMP is the agency to approve building plans and issue commencement and occupancy certificates for all residential and commercial buildings in lay outs developed by various government agencies( including BDA, KHB, BMICAPA) in its limits except those developed by KIADB and KSSIDC.

1. Section 35 of The Karnataka Education Act, 1983 has provisions for the Registration of Tutorial Institutions. Under the above mentioned Act, the Karnataka Tutorial Institutions (Registration & Regulation) Rules, 2001 has been brought about. Rule 3 of the above mentioned rules, lays down the procedure for registration of tutorial institutions which is as follows-

• An application to be made before the registering authority under S.35 of the Karnataka Education Act, 1983.

• Such application must be made along with a prescribed registration fee as per the table mentioned below, either through an account payee cheque or demand draft which shall be non-refundable.

1. Upto lower primary institutions (Class I-VII) Rs.5,000
2. Secondary School Rs.10,000
3. Pre-University Rs.25,000
4. Degree Courses Rs.25,000
5. Other Courses Rs.25,000

• Conditions for registration of Tutorial Institutions are given under Rule 5. Some conditions are suitable building; not more than 30 students per class; 5-7 sq. ft. space per student, adequate number of teachers possessing prescribed qualifications, sanitation facilities with proper ventilation and safe drinking water. A certificate shall be obtained from the appropriate authority of the Municipal Corporation, Municipal Council or Local Authority regarding sanitary conditions of the building and it shall be produced before registering authority along with the application.

Authored by:
RAHUL M
Intern

The Ministry of External Affairs attests original documents or true copies of documents for use in abroad.

Apostille is an authentication of a signature on a document that is recognized by an international body. It is the legalization of a document for international use under the terms of the 1961 Hague Convention abolishing the requirement of legalization for Foreign Public Documents. The country of destination determines whether the authentication is an apostille or certification. The apostille ensures that public documents issued in one signatory country will be recognized as valid in another signatory country.

Apostille is done for personal documents like birth/death/marriage certificates, Affidavits, Power of Attorney, etc. and educational documents like degree, diploma, matriculation and secondary level certificates etc.

Apostille is first authenticated by the designated authorities of the State/Union Territory from where the document has been issued. Thereafter Ministry of External Affairs legalizes the document on the basis of the signature of the designated signing authorities of the State Government/Union Territory.

Authored by:
Shrinivas Mudagannavar
Attorney
Mento Associates

The Supreme Court in Arneshkumar v/s State of Bihar and another, observed that there is rampant misuse of the provisions of Sec. 498-A of IPC and Sec 3 & 4 of Dowry Prohibition Act. In order to bring the situation under control the Supreme Court has passed the following guidelines.
The Supreme Court, through this judgement ensures that –
i. The Police officers do not arrest accused unnecessarily and
ii. The Magistrate do not authorise detention casually and mechanically.
The State Governments are directed by this Judgement:
1. To instruct the Police officers not to automatically arrest when the case is registered under section 498-A of the IPC and Dowry Prohibition Act, until it satisfies the necessity for arrest under the parameters laid down in section 41 of CrPC.
2. The Police Officers to be provided with the check list containing specified sub-clauses under section 41(1)(b)(ii) of CrPC. The said check list shall be duly filled and the police officer shall furnish the reasons and materials which necessitated the arrest, while producing the accused before magistrate for further detention.
3. The Magistrate on inspecting the report furnished by the Police officer, only after recording its satisfaction, shall authorise the detention of the accused.
4. The decision not to arrest an accused is to be forwarded to the Magistrate within 2 weeks from the date of institution of case with a copy to Superintendent of Police which may be extended by the superintendent of Police for reasons to be recorded in writing.
5. Notice of appearance in terms of section 41 CrPC shall be served to accused within 2 weeks of institution of the case, which may be extended by the Superintendent of Police of District for the reasons to be recorded in writing.
6. Failure to comply with the directions given above, the police officer concerned shall be liable for departmental action and punished and , the contempt of court is to be instituted against them before the High Court having territorial jurisdiction.
7. Authorising detention without recording reasons as above said, by the Judicial Magistrate concerned, shall make the Magistrate liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court also clarifies that the directions aforesaid shall not only apply to the cases under sec. 498-A of the IPC or sec. 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
Authored by:
Shrinivasreddy Mudagannavar
Intern
Mento Associates