Sir, I want to build an online beer store with a simple business plan: Users will come to my website, choose the products they want to buy, opt for cash on delivery. As per the user’s delivery address, the nearest beer store would get a notification of the order details and the store would take the responsibility of delivering the order along with verifying the legal drinking age of the recipient at the time of delivery.
So the online platform won’t do anything except taking orders on behalf of a real beer store and passing the information to it and charge the store for some commission for its service. Now suppose this website will only serve Pune in the beginning. Would this whole thing be legal?
According to entry number 51, the seventh schedule of our constitution state has the right to collect excise duties on liquor. Entry no 51 read as Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:-
Alcoholic liquors for human consumption;
Opium, Indian hemp and other narcotic drugs and narcotics, but not including medicinal and toilet preparations containing alcohol or any substance included in subparagraph (b) of this entry.
So when you start online trading of liquor product then you have to get a license from each state. Some states have syndicate and some have a separate contract with each licensee. When a product moves from your site (payment made) then excise duty should be levied on the initiation of movement.
But in your case payment will be done on your site and product will be delivered from different locations of India so at which place duties shall be levied? This is the main hurdle in your business. If duties are levied on your portal then you need a license for this business (trading of liquor without a license is an offence) and right now there is no rule to issue the license for online trading of alcoholic liquor.
Alcohol is out of GST
The goods and service tax (GST) is not applicable to the trade of alcohol. Parliament has to pass a constitutional amendment to bring the trade of alcohol within the purview of GST. Resultantly, there is no uniform tax regime on the trading of alcohol. This is the primary hurdle in the online trading of alcohol.
Lockdown 2020
Amid the countrywide lockdown the International Spirits & Wines Association of India (ISWAI), the Confederation of Indian Alcoholic Beverage Companies (CIABC) and other beverage associations have approached the Central Government to allow the online trading of alcohol in green and orange zones. They requested to permit home delivery of alcohol but their requests are still pending before the government. According to some news media reports, all major states in the country are planning to permit home delivery of alcoholic beverages.
On the Public Interest Litigation filed by Sai Deepak, the Supreme Court suggested that the state should consider the indirect sale of alcohol. However, the suggestion was made to avoid crowding at liquor shops amid the lockdown but it seems that the government may permit the online trading of alcoholic liquor in India. The government should allow online trading of alcohol because it will generate direct and indirect jobs in India.
When the government is capable to regulate direct selling of liquor then it is possible to make uniform law for regulation and trading of alcohol in India. This is the need of the hour to start home delivery of alcohol through online portals like swiggy, zomato etc.
An employee of the public sector bank remains absent from work for 18 to 20 days in a month. He is attending the office only for 10 to 12 days in a month due to spinal problem. The employer can convert unauthorised absence in the leave without pay. When the employee took leave on a particular day the employer marked that leave as leave without pay or an unauthorised leave.
The employer has counted public holiday and Sunday in the unauthorised leave. therefore, The employee suffered a lot due to such an illegal act of the employer. If the employee clears the UPSC examination then would there be a problem in getting NOC from the employer?
As an employee, it is important to understand the rules and regulations regarding leave and absence from work. In a public sector bank, the service rule governs the employee's conduct, including taking leave and the consequences of unauthorized absence.
Proper sanction of leave is mandatory according to the service rule. The employer can treat unauthorised absence as leave without pay. This means that if an employee is absent from work without taking leave or obtaining prior approval from the competent authority, it can be considered as an act of negligence. In such cases, the employer has the right to convert the unauthorised absence into leave without pay.
A sanctioned leave is a different thing from an unauthorised absence. If the employer treats the absence as leave without pay, the employee cannot claim that they were on a sanctioned leave. This is an important distinction to keep in mind, as the employer can terminate an employee on the basis of unauthorised leave, despite the leave being recorded as leave without pay in the service record.
Unauthorised absence is considered misconduct by absence, as established in State of Madhya Pradesh vs Harihar Gopal (1969) 3 SLR 274 (SC). The employer can terminate an employee on the basis of unauthorised leave, and the employee has no legal right to challenge the decision. The employer is also free to treat unauthorised absence as leave without pay, even if it includes public holidays and Sundays.
When an employee is absent without taking proper leave, they cause loss to the employer. Therefore, it is important to compensate the employer to the extent of that loss. The employer may issue a No Objection Certificate (NOC) but may simultaneously impose fines under the service rule. If unauthorised absence is a ground for termination, an employee can seek a NOC after paying damages to the employer.
Conclusion: In conclusion, it is important for employees to follow the service rule and obtain proper sanction for leave. Unauthorised absence can have serious consequences, including termination and fines, and can also affect an employee's service record.
A person gave me a post-dated cheque but now refusing to pay it. The post-dated cheque will mature on 10/05/2020. Sir, I want to know what should I do in this situation?
You cannot take any legal action against that person before the maturity of the post-dated cheque. The drawer issues the post-dated cheque for the discharge of debt or liability. When he issues the said post-dated cheque he admits that he has some financial liability. Therefore, the law will presume the existence of financial liability under Section 139 of the Negotiable Instrument Act.
In this situation, you should wait for the date of maturity of the post-dated cheque. You should present that cheque before the bank on the date of maturity. If he dishonours the cheque due to insufficient amount or any other reason then you should proceed against him. The oral statement or intimation of the drawer that he will not pay the cheque has no legal validity.
You should not rely on his oral statement before the date of maturity of the post-dated cheque. No cause of action arises out of that oral statement. According to Section 142 of the Negotiable Instrument Act, the cause of action arises when the drawer does not pay the amount within 15 days of receiving the demand notice.
Therefore, you have to follow the procedure given in the Negotiable Instrument Act. The oral statement of the person that he will not pay the cheque amount has no legal sanctity. You cannot initiate any legal action on the basis of his oral statement.
Presentment of cheque
You should present the cheque within three months from the date of maturity. Presentment of the cheque within time is mandatory under section 138 of the Negotiable Instrument Act. If you do not present the cheque within a time the post-dated cheque will lost its legal status. The cheque is an instrument for discharging of the debt or liability and it is valid for three months from the date of maturity.
Section 138 of the Negotiable Instrument Act said that the cheque should be presented to the bank within a period of three months. After the amendment in section 138, the period of maturity is shortened by three months. Before the amendment, there was a six month period for the presentment of the cheque
Send a demand notice
If that person (drawer) refuses to make the payment of the post-dated cheque then you should give him a demand notice within 30 days. The time period of 30 days starts when you receive the memo of dishonour of cheque from the bank.
The offence has occurred in Delhi immediately before the lockdown. I return to my native place at Patna just after the lockdown. How could I lodge fir where the offence has not been committed?
Section 154 crpc does not mandate to The offence has occurred in Delhi immediately before the lockdown. I return to my native place at Patna just after the lockdown. How could I lodge fir where the offence has not been committed?
lodge FIR in the police station where the offence has been committed. You can lodge FIR at any place. When a person lodges the FIR at the place other than the place of occurrence that FIR is said "zero FIR". The police will transfer the said FIR to the competent police station instead of doing an investigation on the basis of that "Zero FIR".
Zero FIR
The police station which has no territorial jurisdiction over the place of occurrence will register the FIR with serial number "0" i.e. zero, therefore, that FIR is called zero FIR. After heinous "Nirbhaya Case" of December 2012, the Justice Verma Committee Report has recommended as making a provision in CrPC for lodging zero FIR. In its recommendation, the Verma Committee has said that
A ZeroFIR can be filed in any police station by the victim, irrespective of their residence or the place of occurrence of crime.
In Lalita Kumari v. Govt. of U.P.: (2014) 2 SCC 1: AIR 2014 SC 187, the Supreme Court has clearly mentioned that the registration of FIR is mandatory. Thus the police officer is duty-bound to register the FIR despite it has no territorial jurisdiction.
So you should lodge the FIR in the police station of Patna in whose territorial jurisdiction you are currently residing. That police officer will transfer the FIR to the police station of Delhi.
If the police officer refuses to lodge your FIR then you can send the information to the Superintendent of Police of Patna under section 154(3) of the CrPC.
I am working in a shop as a salesman. Yesterday my colleague has arrested in connection with the theft of garments. During the lockdown, he has opened the shop with a duplicate key and took away some garments kept in backyard godown. I was also present with him but did not know about the incident. He told me that the owner has ordered to bring those garments.
After a few days, I informed the owner that he is not present in his home and he took some garments from the godown. Thereafter, the owner lodged an FIR and police have arrested him. Could I get anticipatory bail?
You have given incomplete information about the whole incident. Police can arrest the accused if he is either named in the FIR or played any role in the commission of the crime. Thus police will arrest you in any of the above-said conditions. Section 41 crpc gives them vast power to arrest the accused during the investigation.
If you are not named in the FIR
The complainant did not mention your name in the FIR. So you are not a named accused in the said FIR. It shows that complainant had no information about your involvement in the crime. Therefore, I think that the police will not arrest you based on such an FIR.
Incriminating materials
When the investigating officer finds some incriminating materials during the investigation against you, then he may arrest you. Presence of some incriminating materials is inevitable for the arrest. This is the law of arrest during the investigation.
If the investigating officer arrests you without any evidence then he commits the offence of wrongful confinement. The wrongful confinement is punishable under section 340 of the Indian Penal Code.
Illegal arrest violates the fundamental right
Article 21 of the Constitution of India guarantees freedom of life and personal liberty. Illegal arrest violates this fundamental right and the arrested person is entitled to get compensation from the state.
When the police arrest you without having any incriminating materials then you should file a writ. You may file a writ of habeas corpus before the High Court under Article 226 of the Constitution of India. The court will pass an order to release the arrested person from police custody.
When the police find some incriminating evidence against you
The investigating officer can arrest you if he got some incriminating evidence during the investigation. Moreover, the arrest is not mandatory in every cognisable offence.
In Lalita Kumari vs Government of Uttar Pradesh [(2014) 2 SCC 1], the Supreme Court has held that arrest is not mandatory after registration of the FIR. So the police officer should exercise his discretion before arresting a person because there should be some reasonable or credible information against the accused.
You should file anticipatory bail application under section 438 CrPC
If you apprehend that police can arrest you in said FIR then you should get anticipatory bail. File an application of anticipatory bail before the court of sessions or High Court under Section 438 CrPC.
You have some relevant grounds to seek anticipatory bail. Such as:
You have informed the complainant (owner) about the offence.
मैं पिछले 10 वर्षों से अपने पुरुष मित्र के साथ लिव इन रिलेशनशिप में रह रही हूँ। मेरे एक 6 साल की बेटी भी है। विगत 3 महीनों से मेरा मित्र मुझे घर से निकालने का धमकी दे रहा है और उसने मुझसे सभी प्रकार के संपर्क समाप्त कर लिया है। कई बार मेरा उससे बहस होती है कि अब मैं कहां जाऊंगी लेकिन वह मेरे किसी बात को नहीं मानता है, और मुझे भरण पोषण भी नहीं दे रहा है।
हालांकि उसकी एक विवाहिता पत्नी भी है जिसके साथ वह पिछले 25 वर्षों से नहीं रह रहा है। क्या ऐसी स्थिति में मुझे भरण पोषण का दावा करने का अधिकार है? मैं अपनी बेटी के लिए भी भरण-पोषण का दावा कर सकती हूं?
इन परिस्थितियों में भी आप दंड प्रक्रिया संहिता की धारा 125 के अंतर्गत अपने एवं अपने पुत्री के लिए भरण-पोषण का दावा कर सकती हैं। धारा 125 के अंतर्गत पत्नी व बच्चे भरण पोषण का दावा कर सकते हैं। आपका मित्र पहले से ही विवाहित है इसलिए आपके साथ विवाह नहीं कर सकता था। इसलिए वह आपके साथ पिछले 10 वर्षों से लिव इन रिलेशनशिप में रह रहा है।
वह इस तथ्य से इनकार नहीं कर सकता। धारा 125 के अंतर्गत भरण-पोषण पाने के लिए इतना तथ्य पर्याप्त है। भरण पोषण के लिए विवाह की वैधता साबित करना आवश्यक नहीं है। धारा 125 दंड प्रक्रिया संहिता के अंतर्गत न्यायालय विवाह की वैधता एवं अवैधता था पर विचार नहीं करता है यदि स्त्री यह साबित कर देती है कि वह एक पत्नी की हैसियत से रह रही है तो इतना ही भरण पोषण पाने के लिए पर्याप्त होगा।
पायला मोतिया लंबा बनाम पायला सूरी धीमाडू (2012) 1 SCC (Cri) 371; के बाद में माननीय उच्चतम न्यायालय ने कहा है कि धारा 125 दंड प्रक्रिया संहिता के अंतर्गत न्यायालय विवाह की वैधता एवं अवैधता पर विचार नहीं करता। यदि तथ्यतः विवाह को साबित कर दिया जाता है तो स्त्री भरण-पोषण का दावा कर सकती हैं।
यदि एक पक्षकार विवाह को तथ्यतः साबित कर देता है तो न्यायालय वैध विवाह की उपधारणा करता है एवं उसको तब तक वैध विवाह मानता है जब तक की दूसरे पक्षकार द्वारा विवाह को अवैध साबित नहीं कर दिया जाता। लिव इन रिलेशनशिप में लंबे समय से रहना यह साबित करता है कि आपका मित्र आपको एक पत्नी की हैसियत से अपने साथ रखता था।
इन परिस्थितियों में उसका दायित्व है कि वह आपका और आपके पुत्री का भरण पोषण करे। पिता होने के नाते वह अपनी पुत्री का भरण-पोषण करने के लिए बाध्य है। वह अपने दायित्व से मात्र इस वजह से नहीं बच सकता कि उसने आपके साथ विधिपूर्वक विवाह नहीं रचाया है।
धारा 125 के अंतर्गत विवाह को साबित करने के लिए इतने कठोर साक्ष्य की आवश्यकता नहीं होती जैसा कि धारा 494 भारतीय दंड संहिता के अंतर्गत द्विविवाह को साबित करने के लिए होती है। अतः आप लिव इन रिलेशनशिप को साबित कर देती हैं तो आप भरण-पोषण पाने की हकदार हैं। यह तथ्य साबित हो जाने पर न्यायालय उपधारणा करेगा कि वह आपके पुत्री का पिता है। इसलिए उसे आपके पुत्री को भी भरण-पोषण देना पड़ेगा।
Sister in law wants to expel me from the matrimonial home. She was married and living in her parent’s house with his husband and son. She is mentally irritating me and trying to let me out of the house. My husband is with my side. But the house is owned by the parents. So we can't say anything against her. Is there any chance to get her out of the house, if I file a complaint?
It is an act of mental abuse and it is prohibited under the protection of woman from domestic violence act. Domestic violence is a continuing offence. You can file a complaint under section 12 of the DV Act.
If domestic violence causes in a shared household it does not matter that who causes it. Husband, father or mother in law, sister in law or any other person living in the house may cause domestic violence.
The action of your sister in law squarely comes under the ambit of domestic violence. You can file a complaint against her. In the said complaint, you should seek residence order and protection order.
Residence order helps you to reside in the matrimonial home. In the other hand protection order restrains your sister in law to disturb in your abode.
File a complaint
You should file a complaint under section 12. Mention your relief in the said complaint. You can seek residence and protection order in the same complaint.
A matrimonial home is alike to the shared household. Hence, you can claim residence order for that house.
Get sister in law out of the house
This is not possible because your father in law is the owner of this house. You father in law has to decide how long his daughter live therein. So you cannot claim eviction of your sister in law from the house.
When the court passes residence order it will restrict the entry of your sister in law in that particular portion of the house. That relief will serve your purpose and it is enough for you.
Sir, I am accused in a criminal case The case is registered under 419,420,467,468, 506 IPC. I got anticipated bail from the court of sessions. The investigating officer has added section 120B IPC and the investigation is still going on. Can police arrest me under 120B IPC?
When the investigating officer added section 120B IPC it proves that he has collected some evidence. The police can arrest you if he thinks that you can provide some more evidence. This is the privilege of the investigating officer and the court does not interfere.
You have been enlarged on anticipatory bail so it appears that you are not directly involved in the crime. The police can arrest you if he has some convincing evidence. He has to approach the court for the cancellation of anticipatory bail.
Cancellation of anticipatory bail
The court includes some conditions while granting the anticipatory bail under section 438 crpc. Compliance of those conditions is mandatory for the accused. If the accused does not comply with those conditions the court will cancel his bail.
In Dolat Ram v. State of Haryana [(1995) 1 SCC 349: 1995 SCC (Cri) 237] the Supreme Court has laid some guidelines for cancellation of anticipatory bail.
Interference with the administration of justice.
Evasion or attempt to evade the due course of justice.
Abuse of the concession granted to the accused.
If the court thinks that the accused may abscond.
Another reason justifying the cancellation of bail
Can police arrest in 120B IPC
Section 120B does not enhance the gravity of the crime. Therefore, the court will not cancel your bail only on the addition of section 120B. You must follow the conditions specified in the anticipatory bail.
In Hazari Lal Das v. State of W.B., (2009) 10 SCC 652; the Supreme Court held that the court should not mechanically cancel the bail unless the supervening circumstances require.
You should not be a worry. The court shall not cancel the bail unless you breach the condition. Addition of section 120B does not come under the purview of supervening circumstances.
My father has solemnised second marriage after my mother’s death. Stepmother took possession over the entire property. I am the only son. After my father’s death, the stepmother is getting family pension but threatening to file case for maintenance. Actually she wants to evict me from the property. She is also keeping the rents of commercial shops. I want to know whether my stepmother have right in my father property?
You did not mention that property is ancestral or self-acquired property. If it is an ancestral property then your stepmother has no right. She cannot take possession over the ancestral property. The only coparcener has a right to inherit the ancestral property.
When stepmother took possession over the ancestral property
After the amendment in the Hindu Succession Act, only children of the deceased get right in the ancestral property. You are the only child so you have exclusive right over the ancestral property. The stepmother has limited right in the ancestral property. If the son is minor or unsound mind then the mother can manage the ancestral property. She cannot alienate the ancestral property as her own property because she has no right to sell the ancestral property.
Possession over the self acquiree property
If this is your father’s self-acquired property then your mother has right therein. She can take possession over the property but to the extent of her share. She has a one-third share in this property so the possession shall be the extent to that portion only. She cannot take possession over the entire property.
File a declaratory suit
You can file a declaratory suit under section 34 of the Specific Relief Act 1963. The court will declare your right in the property and may direct your stepmother to release her possession over the two-third portion of the property. If it is an ancestral property then the court will direct her to leave the possession over the entire property. The Limitation Act prescribes twelve years limitation period to file such a declaratory suit.
The Project "The Millenia" sector 37 D, Gurgaon is promoted by M/s. Signature Global Pvt. Ltd. In Sept. 2017 with the completion date of August 2021. The payment plan is time linked i.e. full payment is to be made by September 2020. We have paid 75% till date and not again a demand for 12.5% payment is due on 27th April 2020, whereas the builder has just made 25-30% construction only. We are not willing to make any more payment to builder till he achieves a construction milestone of 75%. Builder is threatening us with 15% interest and cancellation of flat if demand is not made. How can we postpone the payment of demand? How can we postpone the payment of demand until the builder achieve the construction milestone of 75%?
Asked from: Harayana
You should send him a notice for delayed construction work. When the builder completed only 25 to 30% of construction work it seems that the project is far behind the schedule mentioned in the brochure. This is an agreement and the builder is bound to perform his promise which has mentioned in the agreement.When the builder does not perform his part he cannot compel the purchase to make the full payment otherwise he will levy 15% interest thereupon. He has to complete the construction as per schedule to provide the flats within time. It seems from the current progress of the work that he would not deliver the flats on time.
You can claim the refund of the entire investment
In this situation, you can claim a refund under Section 18 of the RERA Act. In the said notice, you should mention that your construction work is not going as per the schedule so I could not pay the remaining amount as per the payment schedule given in the brochure. If he persists to make payment despite the delay in his project then you should file a case before the RERA authority under section 18 for the return of entire investment with interest.
