Mentoassociates.com – Legal Articles

REGISTRAR OF NEWSPAPERS
Printing and publishing of newspapers and periodicals within India are governed by the Press and Registration of Books Act, 1867 and the Registration of Newspapers (Central) Rules, 1956.The Registrar of Newspapers or the Press Registrar maintains a register of newspapers and periodicals published in India.
The Office of the Registrar of Newspapers for India is headquartered in New Delhi, and has three regional offices at Calcutta, Mumbai and Chennai to cater to the needs of publishers in all corners of the country.

LEGAL STEPS TO START A NEWS PAPER
1. As a first stage, the applicant needs to go for title verification of the Publication. The title verification application needs to be filed before the jurisdictional District Magistrate. The District Magistrate will get the title verified from RNI.
2. After receiving the title verification letter from RNI, the applicant needs to file a declaration for authentication before District Magistrate. The declaration is in Form No.1.
3. Once the declaration is authenticated by District Magistrate, the newspaper needs to be published within 6 weeks if it is published once a week or oftener than that. In case of any other periodicity, the first issue should be published within 3 months from the date of authentication.
4. After the first issue is published, the applicant needs to file an application for registration. The application shall annex the following documents:
a. Title verification letter.
b. Authenticated declaration.
c. An affidavit for no foreign tie-up.
d. First issue and latest issue of the publication
e. Content intimation/ confirmation in the prescribed form.
f. Certificate intimating appointment of the printer.

(1) THE EMPLOYEES PROVIDENT FUND AND MISCELLANEOUS PROVISION ACT, 1952.
It applies to every establishment which is a factory engaged in any industry specified in Schedule-I of the act and in which 20 or more persons are employed. The Central Government by notification can bring in any other establishments employing 20 or more persons or less than 20 persons under the purview of this act.
FACTORY means any premises where a manufacturing process is being carried on with or without the aid of power.
The Central Government can add any other industry under Schedule-I for the purposes of this Act.
This act shall not apply to any establishment registered under the Co-operative Societies Act, 1912 or under any other Co-operative Society laws, employing less than 50 persons, and working without the aid of power.
The appropriate government may by notification in official gazette exempt any establishment from the operation of all or any of the provision of any scheme under this act.
(2) THE MATERNITY BENEFIT ACT, 1961
This act applies to every establishment being a factory, mine, plantation (private as well as Government) and to every establishment wherein persons are employed for exhibition of equestrian, acrobatic and other performance.

This Act also applies to every shop or establishment in which 10 or more persons are employed.

Nothing contained in this Act shall apply to any factory or other establishment to which the provisions of ESI act, 1948 apply.

The appropriate Government has powers to exempt an establishment or classes of establishment from the provisions of this act or any rule there under.

(3) THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT 1986
The occupations and processes from which children are prohibited to be employed or permitted to work are listed in Part A and B of the Schedule under this Act.

The Part 3 of this Act will apply to those establishments where the occupation and processes mentioned in schedule to the Act are not applicable.

(4) THE PAYMENT OF WAGES ACT, 1936
This Act applies to persons employed in any factory (as defined under Factories Act, 1948) and to persons employed upon any railway directly or through a sub-contractor. This act also applies to persons employed in an industrial or other establishment specified in section 2 clause (ii) sub clauses a to g of the act.

This Act is applicable only to persons whose wages do not exceed Rs.6500/- per month.

(5) THE INDUSTRIAL DISPUTES ACT, 1947
Under this act “Industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen.

“Industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.

“Industrial Establishment or Undertaking” means an establishment or undertaking in which any industry is carried on.

“ Workman” means any person ( including an apprentice) employed in any industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person:-

i) who is subject to the Air Force Act, 1950 or the Army Act, 1950 , or the Navy Act., 1957; or
ii) who is employed in the police service or as an officer or other employee of a prison, or
iii) who is employed mainly in a managerial or administrative capacity, or
iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per month or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

(6) THE EQUAL RENUMERATION ACT, 1976
The term employer under this act has the meaning assigned to it in Sec.2 (f) of the payment Gratuity Act, 1972.

(7) FACTORIES ACT, 1948
1) Under this act “Factory” means any premises where
i) 10 or more workers are working or were working on any day of the preceding 12 months and in any part of which a manufacturing process is being carried on with the aid of power.

ii) where 20 or more workers are working or were working on any day of the preceding 12 months and where a manufacturing process is being carried on with out the aid of the power.

2) The term factory does not include a mine, a mobile unit belonging to the armed forces of the Union, the railway running shed or a hotel, restaurant or a eating place.

(8) WORKMEN’S COMPENSATION ACT 1923
Under this act workman is defined under section 2 (n). Workman is any person who is:
i) a railway servant, as defined in Sec (3) of Indian Railways Act, not permanently employed and not employed in any capacity as specified in Schedule 2.

ii) a master seaman, or other member of the crew of the ship,
iii) a captain or other member of the crew of an aircraft.
iv) a person, recruited as a driver, helper, mechanic, cleaner or any other capacity in connection with a motor vehicle.
v) a person recruited for a work abroad by a company and who is employed outside India in any such capacity as specified in Schedule 2 and the ship, aircraft or motor vehicle or the company is registered in India.
vi) a person employed in any capacity as specified in Schedule 2 of the act but does not include any person working as a member of the armed forces of the Union.
vii) The Schedule 2 of the act gives a list of persons who are workmen as per the act.

(9)THE EMPLOYMENT EXCHANGES (COMPULSORY NOTIFICATION OF VACANCIES) ACT 1959:

This act applies to all public sector establishments and private sector establishments where 25 or more persons are employed. Agriculture, horticulture, domestic service and skilled office work etc do not come under the purview of this act.

(10) THE PAYMENT OF BONUS ACT 1965

This act applies to every factory and every other establishment in which 20 or more persons are employed on any day during an accounting year. An establishment to which this act applies shall continue to be governed by this act even if the number of persons employed is below 20.

In certain cases the act will be applicable to establishments in public sector .If a public sector establishment derives income by the sale of any goods produced or renders any services and if the said income is not less than 20% of the gross income of the establishment for that year, then provisions of the act will apply to that establishment.

This act is not applicable for the following employees:-

1. Employees of LIC.

2. Seamen.

3. Employees registered under any scheme under Dock Workers (Regulation of Employment) Act 1948.

4. Employees of Central or State Government industries.

5. Employees of Indian Red Cross Society or University or educational Institutions or non profit Institutions.

6. Employees of RBI.

7. Employees of Industrial Finance Corporation of India, State financial corporation, Deposit Insurance Corporation, NABARD, UTI, IDBI, SIDBI, NHB.

8. Employees of Inland Water transport establishments operating on routes passing through other countries.

(11) THE PAYMENT OF GRATUITY ACT, 1972

This act applies to every factory, mine, oil field, plantation, port, Railway Company, shops and establishment where 10 or more persons are employed.

12) THE MINIMUM WAGES ACT, 1958

The Part I and II of the Schedule attached to this Act lists the employments for which the appropriate government can fix the minimum wages payable to employees.

(13) THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT, 1961

This Act applies for Shops and Commercial establishments in the State of Karnataka.

Commercial Establishment means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which persons employed or mainly engaged in office work, a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such establishments as the State Government may by notification declare to be a commercial establishment for the purposes of this Act.

Shop means any premises where any trade or business is carried on or where services are rendered to customers and includes offices, storerooms, godowns, or warehouses, whether in the same premises or otherwise, used in connection with such trade or business, but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop fall within the scope of the Factories Act, 1948.

(14) THE EMPLOYEES STATE INSURANCE ACT, 1948:

This act shall apply to all factories (including Government factories) other than seasonal factories.

“Factory” means any premises including the precincts thereof:

i) whereon 10 or more persons are employed  or were employed for wages on any day of the preceding 12 months and in any part of which a manufacturing process is being carried on with the aid of power or is so ordinarily  carried on, or.

ii) Wherein 20 or more persons are employed or were employed for wages on any day of the preceding 12 months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, but does not include a mine or railway running shed.

The appropriate government has the power to exempt factory or establishment or class of factories or establishments or person or class of persons from the operation of the act.

1. A company can be voluntarily wound up under the following circumstances:
a. If the period fixed for the duration of the company has expired and company passes a resolution for winding up in a general meeting.
b. If the company passes a special resolution to wind up voluntarily.

2. When a company has passed a resolution for a voluntarily winding up it shall within 14 days give a notice of the resolution in the official gazette and also in some newspaper. A voluntary winding up is deemed to have commenced from the time when the resolution of voluntary winding up is passed by the company. A company shall cease all its all business activities once a winding up process is commenced.

3. The directors of the company or the board of directors shall make a declaration to the effect that they have made a full enquiry into the affairs of the company and that the company has no debts or that it will be able to pay its debts within 3 years from the commencement of the winding up process. This declaration needs to be made within 5 weeks immediately preceding the date of passing of resolution for winding up and the same needs to be delivered to the Registrar for registration before the date of resolution. The declaration needs to be accompanied by a copy of the report of the auditors of the company.

4. The winding up where a declaration is made and delivered to the Registrar is known as “A Members voluntary winding up” and winding up in which the declaration is not made and delivered is known as “A creditors voluntary winding up”.

PROVISIONS APPLICABLE TO MEMBERS VOLUNTARY WINDING UP:
1. The company in general meeting shall appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company. On the appointment of the liquidator all the powers of the Board of directors and of the managing director and whole time directors shall cease, except for the purpose of giving notice of appointment of the liquidators to the Registrar.

2. The company shall give notice to the registrar of the appointment of the liquidator within 10 days of the appointment.

3. The Liquidator has powers to transfer whole or part of the business or property of the winding up company to another company.

4. If the Liquidator is of the opinion that the company is not able to pay its debts in full within the period stated in the declaration under Sec.488 than he shall summon a meeting of the creditors and shall lay before the meeting a statement of assets and liabilities of the company.

5. If the winding up process is continuing for more than 1 year, then the liquidator shall call a general meeting of the company at the end of each year and present an account of his acts and dealings and of the conduct of the winding up during the preceding year.

6. Once the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up and call a general meeting of the company to lay the account before it. The meeting shall be called by advertisement published in the official gazette and in some newspaper. Within one week after the meeting the liquidator shall send to the registrar and the official liquidator a copy each of the account and shall make a return to each of them of the holding of the meeting. The registrar shall register the account and the returns forthwith.

7. The official liquidator on receiving the account and return shall make a scrutiny of the books and papers of the company and if found that the affairs of the company have not been conducted in the manner prejudicial to the interest of its members or to public interest than he shall make a report to that extent to the tribunal and the company shall stand dissolved. If the finding of the official liquidator is otherwise, the tribunal can direct the official liquidator to make further investigation into the affairs of the company.

8. On the receipt of the report of the official liquidator on further investigation the tribunal either make an order that the company stands dissolved or make such other order.

1.As per Section 353 of The Karnataka Municipal Corporation Act 1976, the owner or occupier of every place, where trade/business as mentioned in Schedule X of the said act are carried on and which are within the limits of the Corporations shall apply and obtain from the said corporation, a license (Trade Certificate). Without the said certificate such trades cannot be carried on in such places. As per this provision, either the business owner or the premise owner can apply and get the trade license. However if the occupier of the premise (the business owner who is occupying the premise on rent or lease) applies to the corporation, having satisfied all other eligibility, the corporation cannot refuse the same saying that the same will be issued only in the name of the owner of the premise.

2. Schedule X of the Karnataka Municipal Corporations Act 1976 lists the trades and industries which require a trade licence from the concerned municipal authorities. In Bangalore, BBMP issues trade licences to various shops and industries within its jurisdiction. The health department of BBMP is in charge of these matters. The health officer of BBMP can close a trade premises which does not have a trade licence.

3. The Licence issued expires on 31st March each year. The application for renewal needs to be done before last day of February each year. For renewal of trade licence, an affidavit on a Rs. 100/- stamp paper needs to be filed. The said affidavit shall state that trade will continue to be carried on as per regulations and other laws in force.

4. If a person has multiple trades in the same premises, then he needs to pay a compounded fee equal to twice the highest fee payable for the trades or commodities he is dealing in.

5. Apart from the trade licence fee, a separate fee needs to be paid for using power or generator. One needs to pay either for the sanctioned power load or generator whichever is of higher capacity.

6. The various trades and industries are mentioned in Schedule X of the Act and the applicable fees are also mentioned.

7. BBMP has also setup special trade health licence clinics which functions from 1st Feb to 15th Feb every year where renewal applications are accepted and processed. These clinics function under the various zones. New applications for trade licence should be handed over only at the BBMP range offices.

8. Documents required for the trade licence are as follows:
i) Property owner’s consent letter.
ii) Property tax paid receipt.
iii) NOC from the neighbours.
iv) Building Plan of the trade premises.
v) Occupancy Certificate.
vi) Khata Certificate.

9. Normally the inspection of the premises will be done within 3 working days. Maximum time period for the issuance of trade license is 7 days.

1. As per this act, matters regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, Gifts, Trust and Wakfs, where the parties are Muslims, shall be decided on Muslim Personal Law ( Shariat)

2. A Muslim may by making declaration according to the sec.3 of the act, can bring in matters of adoption, wills and legacies under the purview of Shariat, binding himself, his minor children and their descendants.

1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period

1. If the marriage was consummated, the wife may marry another husband after the completion of iddat. If the marriage was not consummated she can marry immediately. If the marriage was consummated and if the husband had up to 4 wives at the time of divorce (including the divorced wife) he may marry another wife after the completion of iddat of the divorced wife.

2. If the marriage was consummated the wife is entitled to immediate payment of the whole of the unpaid Dower. If the marriage was not consummated and the amount of Dower is specified then she is entitled to half of the amount. If the marriage was consummated and no amount is specified she is only entitled to 3 articles of dress. If marriage is dissolved upon the apostasy of the wife she is entitled to the whole of dower if consummation has taken place.

3. When the divorce becomes irrevocable, mutual rights of the inheritance comes to an end. If the divorce was pronounced during the death illness, the wife’s right to inheritance continues to the expiry of her iddat.

4. After the divorce has become irrevocable, if the divorced couple engages in sexual intercourse the same is unlawful. Children as a result of such intercourse are illegitimate.

5. The parties are generally permitted to remarry after the divorce.

1. Father is bound to maintain his sons until the age of puberty and daughters until they are married. Even if the children are in the custody of the mother, father is duty bound to maintain them.

2. If the father is poor and incapable of earning the mother is bound to maintain the children. If both the father and mother are incapable to maintain the children, the duty lies on the grandfather.

3. Children in easy circumstances are bound to maintain their poor parents. A person is bound to maintain his paternal and maternal grandparents if they are poor.

4. If the father neglects to maintain his legitimate or illegitimate children, the children can sue him under the provisions of Sec.125 of Cr PC, 1974.

1. Application for appointment of a guardian for the property or person of a minor comes under the purview of Guardians and Wards Act 1890. Minor is a person who has not completed the age of 18 years. The courts normally keep in mind the welfare of the minor while passing an order on guardianship.

2. The mother is entitled to the custody of the male child until he has completed the age of 7 years and the female child until she attains puberty. This right continues even after she is divorced by the father of the child. If the mother remarries, custody of the children goes to the father.

3. After the mother, the custody of the boy under the age of 7 years and the girl who has not attained Puberty belongs to the female relatives in an order.

4. In the default of mother and other female relative the custody of boy below 7 years and the girl who has not attained puberty goes to father and other relatives in an order. However a male is entitled to the custody of an unmarried girl, only if he stands within the prohibited degree of relationship with her (consanguinity and affinity). Even if a girl is married, but has not attained puberty, the mother is entitled to the custody of the girl against the husband of the girl.

5. Father is entitled to the custody of boy over 7 years of age and unmarried girl who has attained Puberty. In default of father the custody belongs to paternal relations in an order.

6. Custody of illegitimate children belongs to mother and her relations.

7. The following persons are entitled to be the guardian of the property of the minor in the following order:
i) The father.
ii) The executor appointed by will of father.
iii) The father’s father.
iv)The executor appointed by will of father’s father.
In the absence of the above legal guardians the court can appoint a guardian for the property of the minor.

8. The person who has voluntarily placed himself in charge of the person and property of a minor is called a de facto guardian. He is neither a legal guardian nor a guardian appointed by the court.

9. A legal guardian normally has no power to sell the property of the minor. But he has the power in few exceptional cases. The guardian appointed by the court can alienate or encumber the property of the minor only with the permission of the court. A de facto guardian has no power to alienate or encumber the property of minor. A guardian of a minor cannot bind a minor or his estate by an agreement of purchase of an immovable property.

10.The thumb rule for custody of children is in whose custody, the interests of the minor children are best protected. The same has been upheld by the courts in Syed Saleemuddin-vs-Dr. Rukhasana (AIR 2001 SC 2172) and Chandrakala Menon –vs- Vipin Menon (1993) 2 SCC 6.

In Noor Saba Khatton –vs- Mohammaed Quasim AIR 1997 SC 3280, Supreme Court held that the Muslim father is duty bound to pay maintenance to his children until they are capable of managing themselves or until they are married

1. Dower is also known as Mahr. It is money or property which a Muslim wife is entitled from the husband in consideration of marriage. A husband can settle any amount he likes by way of dower upon his wife. The amount of dower may be fixed either before the marriage or at the time of marriage or after the marriage. The Dower amount can be increased after marriage. A contract of Dower made by a father on behalf of the minor son is binding on the son.

2. If the amount of Dower is not fixed, the wife is entitled to what is known as Proper Dower. The wife is entitled to Proper Dower even if the marriage was performed with a condition that she should not claim any Dower. The Proper Dower is fixed taking into consideration the amount of Dower settled upon other female members of wife’s family.

3. The Dower becomes confirmed under the following situations:
a. By consummation of marriage.
b. By valid retirement.
c. By the death of husband/wife.

4. The Dower which is payable on demand is known as ‘Prompt Dower’. The Dower which is payable on dissolution of marriage by death or divorce is known as ‘Deferred Dower’

5. The wife may remit the Dower or any part thereof in favour of the husband or his heirs even without consideration. If the Dower is not paid the wife or her heirs can file a suit to claim the same. The Muslim wife may refuse to live with her husband and admit him to sexual intercourse so long as the Prompt Dower is not paid.

6. The heirs of a deceased Mohamadean are liable for Dower debt of the deceased, proportionate to their share in the estate of the deceased. The Dower is a debt, at the same time it is an unsecured debt. The wife is not entitled for a charge on the husband’s property though such a charge may be created by an agreement.

7. A widow who has lawfully obtained possession of the property of her late husband has the right to retain that possession until her Dower is paid. The right to hold possession does not give the widow any title to the property. But if she is disposed she can sue for recovery of Possession. The right to retain the physical possession of the property does not arise to the Muslim wife during the continuation of marriage; it arises only on the dissolution of marriage either by death or divorce. A Muslim widow who retains possession of her husband’s property under a Dower claim has no right to alienate the property by sale, mortgage etc. If she alienates the property, the alienation is valid only to the extent of her share. It does not affect the share of other heirs.