by Aggarwals Associates | Mar 6, 2021 | General
The term property is used in numerous ways in general. Every object whether it is tangible or intangible has some value to human beings, may be termed as property. The essential characteristic of the property is the value attached to it. The value may be monetary or personal. Generally, property consists of land, shares, buildings and so on. Howbeit, in legal context it is right to enjoy and to dispose of certain things in an absolute manner as one thinks it fit.
What the term property means?
The term “property” is derived from the Latin word “Proprietary” which suggests “a thing owned.” The concept of property and ownership are very similar to each other. However, there is a fine line which makes distinction between the both terms. It might not be inappropriate to mention that humans are conscious of their rights to possess what they rightfully own for long.
What does mean by transfer of property?
Transfer includes the transfer via sale, mortgage, lease, actionable claim gift or exchange. Although transfer can be operated by operation of law like inheritance, forfeiture, insolvency, or sale through the execution of a decree, but this Act does not deal such transfers. The transfer of property can be made in two ways one is by the act of parties and the rest is by the operation of law.
To illustrate, if two living parties are involved in transfer of any immovable property then it will done under the Transfer of Property Act, similarly, if both living parties decided to transfer any movable property then the same will be completed under Sale of Goods Act. Additionally, if property is going to be transferred to the living person from the estate of dead person then it will come under the ambit of Indian Succession Act.
Who can transfer property under the Act?
The following eligibilities are to be fulfilled by an individual to form transfer under the Act:-
- A person must be competent to enter into a contract like must be above the 18 years of age and have sound mind.
- Along with competency person must be entitled to transfer the property.
- In case of non-existence of entitlement a person who is authorized to dispose of the transferable property whether full or partial can transfer the property to the extent of its authority.
What are the various sorts of transfer under the Act?
Sale: – Under this ownership has been transferred to the buyer by seller in exchange of some monetary consideration. In addition to that, possession of the property in sale has been transferred to the buyer on receipt of consideration.
Mortgage: – The property has been transferred to the buyer by the seller in form of mortgage to secure a loan. The mortgagor has to pay the principal loan along with interest to release the immovable property from the mortgagee.
Exchange of immovable property: – When two persons mutually transfer owner of one property for the ownership of another, then such mode of transfer is named exchange.
Lease: – Under this mode, the possession of the property is transferred by one person to another person for fixed price for some time period and ownership rights does not transferred. A lessee doesn’t entitle to further transfer the property. The time period for lease is usually mentioned in lease agreement.
Gift: – The Section 122 of the Act deals with the transfer of property by way of gift. It refers to voluntary transfer of movable or immovable property without any consideration. In such kind of transaction, the person who gives the gift is called donor and the person who receives gift is called donee. It is notable here that gift cannot be made of uncertain property or future property. The property must be existed.
What are the essentials of valid transfer under the Act?
Here are the components which are required for any transfer to be valid under the Act:-
- Transfer must be between two living entities: – The property must be transferred between two or more persons who are living. There shall be act of conveyance by some living person to constitute a transfer.
- Property must be transferrable: – Section 6 of the Act talks about the properties which can’t be transferred. These properties include the follows:-
- Chance of heir to succeed an estate.
- Right of re-entry except the owner of the property.
- An easement aside from the dominant heritage.
- A right to future maintenance in any manner.
- An interest which is restricted to the owner for private use, for instance tenure of services etc.
- Right to sue.
- Public office or salary of a public officer.
- Pensionary benefits of military and civil personnels.
- Properties which do not belong to anybody like sunlight, water, air and so on.
- Transfer to an individual who is not qualified to be a transferee.
- Transferor must be competent: The person who intends to transfer the property must be competent to contract and entitled to transfer the property or authorized to eliminate the transferable property just in case he/she is not the owner of the property. It is marked here that competency includes that a person must have attained the age of 18 years, and is of sound mind and should not be disqualified by law.
- Transfer should be made consistent with the mode prescribed by the Act: Section 9 of the Act mandates the registration, stamp and attests the documents of transfer so that future hassles can be avoided. Property must be transferred through valid document that is to be executed by the transferor in writing and is attested and registered. However, transfer of property can be made without written document wherein it is specifically provided by the law.
- Transfer must not offend the rule against perpetuity: According to this rule, no transfer of property can be affected to create an interest which is to take place after the lifetime of one or more persons living at the date of such transfer. The rule of perpetuity ensures that one cannot postpone the vesting of property in a transferee beyond a particular limit.
- Conditional transfer: If transfer of any property is formed subject to any condition then such condition must not be impossible or forbidden by law or against public policy. The interest accruing in the transfer subject to condition fails and automatically the transfer becomes void.
Formalities of transfer:-
Generally, immovable property can be transferred through registered instrument only but if value of the transferable property is less than 100 rupees then registration is not required. A person who executes the transfer is known as executant. The subsequent steps are included in the formalities of transfer:-
- Attestation: – The must bear the signature of the executant and attestator also put the signature on the document in the testimony of the very fact of its execution. After this, there must be two witnesses and every witness is required to sign the document in the presence of executant and attestator.
- Registration: – It is necessary to in some transactions in order to avoid the future complications. The most advantage of the registration is that person handling with the transferred property has to abide by the rights and liabilities provided in the agreement.
Conclusion:-
Several conditions must be satisfied for valid transfer of property. There are numerous kinds of transfer containing different conditions under the piece of legislation. Apart from this, person intending to enter into any kind of transfer of property must verify the title of the property such as examination of title deeds and registration documents etc.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 5, 2021 | General
Registration of trademark is not just a licence but a requirement in today’s professional life. Registration of trademark is not compulsory. However registered trademarks have additional benefits as compared to unregistered trademarks. Registration of trademark allows the owner of the trademark to file infringement suits for violation of his rights. Trademark may be a unique mark or sign that represents one particular business. It distinguishes one company from another company and builds credibility among customers.
What is Trademark?
Trademark is any mark, symbol, logo, name, figure, letter, word used by an individual or company so as to spot its goods or services from others. It is a legal expression of brand name. There are two basic features of trademark one is it must be distinctive and the other is that the same must be utilized in commerce. The Trademark Act, 1999 and the Trademark Rules, 2002 govern the law relating to trademarks in India.
Why it is important to register a Trademark?
The foremost advantage of registering a trademark is that it brings credibility in customers, which is extremely important for every business. Registered trademark is given a licence. In case of infringement of trademark the owner of the trademark can sue the violator. The registered trademark can be transferred but it is not possible in case of unregistered trademark, which may only be transferred with the business.
The other aid of registering trademark is that it becomes easy to advertise the product and services on registered trademark. Registering trademarks are often a boon for startups because it highlights the business within the market.
What is the meaning of different Trademark symbols?
There are three kind of symbols used in trademark registration process. The first is ‘TM’ symbol, it indicates that trademark for product is not registered and application is under process. Second is ‘SM’, this is used for services for which application for trademark registration is pending. The third and last one is ‘R’ that means trademark is registered and certificate of registration is issued by the Registrar.
Who can apply for Trademark registration?
- Any person who has authority over the trademark can apply for registration of its marks for goods and services.
- Business of such person must be within the jurisdiction of India.
- If the principal place of business is outside India, then the proprietor present in India can apply for registration.
- Company or LLP can file application for trademark registration.
How much time it takes to get registered trademark?
Registration of trademark is a lengthy process and typically it takes around 18-24 months to get registration if it is not opposed by any third party. However application number is usually granted within 2-3 days after filling an equivalent.
What documents are required for Trademark registration?
The following documents are required throughout the whole process of trademark registration:
- Personal details of applicant like name, address and nationality.
- Incorporation certificate in case of any legal entity like company or LLP.
- ID and address proof of applicant
- Copy of logo.
- Signed Form 48 by applicant.
What is the process for registration of Trademark?
The process of registering trademark includes various steps, which are elaborated below:-
Trademark search: This is often the primary step to search trademark to make sure that whether any similar trademark is registered or not. This becomes helpful to avoid any hassle in application of trademark registration. The look for an equivalent is often done on official website of govt.
Filing of application: After ensuring the search of trademark subsequent step is to file application for trademark registration. The application can be filed either offline or online mode. It is always advisable to file the process through online mode so as to save time.
Examination: After the filing process, examiner of trademarks examined the application. The examiner can also ask for any clarifications from the applicant in case of any discrepancies. The applicant has to justify the same.
Publication: After successful completion of examination, the same shall be published in the trademark journal so as to ascertain objections, if any.
Registration: If there is no objection from any third party, then usually after 3-4 months of publication, a registration certificate is issued by the trademark office. The validity of this certificate is upto 10 years. Trademark owner can renew the same after every 10 years for its due protection.
Conclusion:
A little effort of registering a trademark can help in building unique identity for any brand within the market. Trademark is a symbol of business which helps in establishing the brand value in the market. Registration of trademark helps startups to flourish their business by creating their identity. For every business it is always important to take care of its goodwill, with registration of trademark they can generate and maintain their goodwill so as to bring credibility in its customers.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 4, 2021 | General
The FSSAI is a government body tasked with ensuring food safety in India. The Food Safety & Standards Act, 2006 introduced to improve the hygiene and quality of food has brought tremendous changes in the food industry. The Food Safety & Standards Authority of India is an autonomous body established under the Ministry of Health & Family Welfare, Government of India which regulates and supervise food safety in India. The FSSAI is also responsible for making and implementing the rules and measures to eliminate hazardous elements and ensuring food safety for the consumers. One of the primary roles of FSSAI is to issue license and registration known as FSSAI license to entities indulged in any kind of food business.
FSSAI License and Registration:
All business entities that come under the ambit of ‘Food Business Operators’ need to obtain FSSAI license or registration to undertake any kind of food manufacturing, packaging, storing, distributing or selling business in India. FSSAI registration is a simple certificate that validates that the business is operating as per the FSSAI rules and regulations. A FSSAI license is a 14 digit license number that is printed on the packaging and labeling of a food product authenticating that the product complies with the food safety and standards.
Why FSSAI License or Registration is important?
FSSAI registration act as a sign of goodwill and trust as the customers can rely on the quality of food served to them. Obtaining a FSSAI license or registration is the primary step in starting any food business in India, whether it is to start a restaurant, a food truck business, a food delivery business, or any food manufacturing business. Without FSSAI registration or license, one cannot operate a food business legally in India.
Types of FSSAI License:
FSSAI issues three types of food license or registration depending upon the scale of the business which include the following:
Basic FSSAI Registration: Basic FSSAI registration is suitable for a business with an annual turnover of up to Rs. 12 lakh.
State FSSAI License: A medium scale business with an expected annual turnover of more than Rs. 12 lakh and up to Rs. 20 crore can go for State license.
Central FSSAI License: It is an option for large scale business with an expected annual turnover of more than Rs. 20 crore.
Basic FSSAI Registration Procedure:
Food business operators having an annual turnover of upto Rs. 12 lakh can file the FSSAI registration form with the state government along with the requisite documents. Petty food manufactures and small sized manufacturing, processing, distributing, selling or storage units, restaurants, units, canteens, caterers, wholesalers etc. are covered under this category. A FSSAI registration certificate is issued if the application is accepted. License number is not allotted in case of basic FSSAI registration.
FSSAI State License Procedure:
Food business operators like small to medium sized manufacturing, processing, distributing, selling or storage units, restaurants, hotels, canteens, caterers, wholesalers etc. having an annual turnover of more than Rs. 12 lakh and less than Rs. 20 crore need to obtain a FSSAI State License. A 14 digit FSSAI license number is issued when the application is accepted. In case the business has operations in more than one state, separate FSSAI State License must be obtained in every state.
FSSAI Central License Procedure:
Food business operators such as importers, export oriented units, large scale manufacturing, processing, distributing, selling or storage units, restaurants, hotels, canteens, caterers, wholesalers etc. having an annual turnover of more than 20 crore, operators in the central government agencies, airports, seaports etc. are required to obtain a Central FSSAI License which is issued by the central government.
Documents required for FSSAI registration:
The common documents required for basic registration include the following:
- Latest passport size photos of the applicant.
- Identification proof for e.g. Votor ID card, Aadhaar Card, Driving License etc.
- PAN card of the applicant.
- Address proof for e.g. electricity bill, gas bill, telephone bill or mobile bill.
- Copy of property papers if the property is owned by the applicant.
- Copy of rent agreement and landlord’s non-objection certificate if the property is not owned by the applicant.
Additional documents required for FSSAI State/Central License:
Other documents required to obtain a FSSAI State or Central License include the following:
- The list of food products to be manufactured, in case of manufacturing.
- NOC obtained from the manufacturer, in case of re-labelers.
- Food safety management system plan.
- Details of source of the raw material for meat and meat processing units.
- List of equipment and machinery.
- Layout plan of the processing unit.
- In case of company, list of directors and their relevant information.
- Partnership deed, in case of a partnership firm.
- Analysis report of the water to be used as an active ingredient.
- NOC from local authorities and State Pollution Control Board.
Consequences of not obtaining FSSAI License and Registration:
A food business must comply with the FSSAI Act rules and regulations in order to smoothly operate their business. Food business operators are subject to inspection by food safety officers to ensure that the FSSAI rules and regulations are adhered to. In case of non-compliance and failure to obtain a FSSAI License or registration, the business will be liable to pay heavy penalty fine and can even face cancellation of the license or registration.
Conclusion:
FSSAI registration plays an important role in formulating the controlling procedures for maintaining the food quality levels in order to ensure safety and catering satisfaction to each consumer. Majority of the food products have a prescribed specification by FSSAI. Only the sea products and the production involving fisherman and farmers are out of the scope of FSSAI. It is thus responsible for promoting the public health among the masses by keeping a regular check.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 3, 2021 | General
The cyber crime is a global phenomenon. Intentional use of information technology by cyber terrorists for producing destructive and harmful effects to tangible and intangible property of others is called cyber crime. With the advent of technology this form of crime is rapidly growing around the globe. However, cyber crime also involves some traditional criminal activities such as theft, fraud, forgery, defamation and mischief which are part of Indian Penal Code.
To tackle these new age crimes the Indian lawmakers bring the Information Technology Act, 2000, The Act is enacted to prevent computer based crime and to ensure security practices and procedures within the context of widest possible use of technology.
What is cyber crime?
The crime which involved computer or technology as a tool or target or both is called to be cyber crime. The misuse of computers and technology has given birth to a gamut of new age crimes like hacking, virus attacks, email fraud and so. Internet is one of the means by which the offenders can gain such sensitive information of companies, firms, individuals, banks etc. They use methods like phishing, spoofing and wire transfer etc. to commit such crimes.
Governing Laws:
Information Technology Act, 2000 enacted by the Indian government to provide protection and safeguards in the fields like e-governance, e-commerce, e-banking and to impose penalties in the field of cyber crime. The Act further amended in the year of 2008 to extend its scope and applicability.
As the new word ‘communication devices’ has been inserted which includes cell phones, other devices such as iPad or other similar devices on Wi-fi and cellular models used to transmit any text, videos etc. The other related cyber laws in India are enumerated below:-
- Information Technology (Certifying Authorities) Rules, 2000
- Information Technology (Security Procedure) Rules, 2004
- Information Technology (Certifying Authority) Regulations, 2001
Here are some important Sections of IT Act handling major cyber crimes:-
SECTION 65: As per this Section, if anyone knowingly or intentionally conceals, destroys or alters or intentionally or knowingly instruct other person to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network, when such computer source code is required to be kept or maintained under any law.
To Illustrate, the term ‘Computer Source Code’ means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form. Such offence can be punished with imprisonment upto three years or with fine which may extend upto 2 lacs rupees or with both.
SECTION 66: The Section talks about hacking activity. If any person with an intention to cause wrongful loss or damage to the general public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means called to be hacking. Hacking can be punished with imprisonment upto 3 years, or with fine which may extend upto 2 lacs, or with both.
SECTION 66A: If a person is found to be sending offensive messages through communication services then he/she may be punished with imprisonment for term which may be extend upto 3 years and with fine.
SECTION 66B: Retaining any stolen computer resource or communication device is an offence under the Act, and it may attract punishment upto 3 years, or with fine which may extend upto 1 lacs or with both.
SECTION 66C: If any person dishonestly or fraudulently make use of digital signature, password or any other unique identification feature of any other person then such offence is punishable with imprisonment upto 3 years, or with fine upto 1 lac or with both.
SECTION 66D: If any person dishonestly or fraudulently by means of any communication device or computer resource commit cheating by personating then such person shall be liable for punishment upto 3 years, or with fine upto 1 lac or with both.
SECTION 66E: Capturing, publishing, or transmitting image of private area of any person without consent attributes the offence under this Section and punishable with imprisonment upto 3 years, or with fine not exceeding 2 lacs, or both.
SECTION 66F: Any person does any act electronically, or with use of computer with an intention to threaten unity, integrity, security, or sovereignty of India, then that person can be punished with imprisonment for life. It is also called cyber terrorism.
SECTION 67: Publishing or transmitting unwanted material in electronic form is punishable with imprisonment upto 3 years, or with penalty upto 5 lacs, or both. In case of second or subsequent conviction, such person will be punished with imprisonment upto 5 years, or with fine upto 10 lacs, or with both.
SECTION 67A: Publishing or transmitting any material containing sexually explicit act or conduct in electronic form attracts an offence and thus punishable with imprisonment upto 5 years, or with penalty upto 10 lacs, or both. And in event of second or subsequent conviction the imprisonment can be enhanced upto 7 years, or with fine upto 10 lacs, or both.
Conclusion:
Due to the rapid climb of technology various offence associated with it also increases. Cyberspace is a common heritage as everyone takes benefit of ever growing technology. Therefore, this cyber space is required to be protected so that nobody has to face hassles while being updated with technology.
With technological evolution to prevent crime, the necessity is to be ahead of criminals. The Information Technology Act is needed to be amended as offences under cyber space are increasing day by day. The government should take some stringent actions to mitigate the misuse of technology.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Mar 2, 2021 | General
Our Indian Constitution specifically enshrined provisions related to protection of environment. As per Article 51-A, it is a fundamental duty of every Indian Citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. Moreover, as Article 48-A detailing Directive Principles of State Policies also impose duty on the State to protect and improve environment and to safeguard forests and wildlife of the country. Apart from this, there are some prominent enactments of the legislation which deals with the protection and safety of the environment.
Laws related to environment:
There are some laws enacted by our legislation to safeguard the environment. Here is the list of some important enactments:-
- The National Green Tribunal Act, 2010
- The Air (Prevention and Control of Pollution) Act, 1981
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Cess Act, 1977
- The Environment Protection Act, 1986
The National Green Tribunal Act, 2010:
For rapid disposal of cases relating to environment issues, the legislators enact the National Green Tribunal Act. The Act provides the establishment of specialized body called National Green Tribunal for effective and expeditious disposal of cases. The Tribunal has total five places of sittings in India including Bhopal, Pune, New Delhi, Calcutta, and Chennai. The principal bench is situated at New Delhi.
What are the objectives of National Green Tribunal?
Some of the major objectives of the National Green Tribunal are given below:-
- Swift disposal of cases concerned with protection and conservation of the environment, forests, and other natural resources.
- Provide relief and compensation for any damages caused to persons and properties.
- Handle numerous environmental disputes that involve multi-disciplinary issues.
Composition of National Green Tribunal:
The Tribunal comprises three major bodies including the Chairperson, the Judicial Members, and the Expert Members. Moreover, there can be minimum 10 members judicial and expert members and maximum limit of such members are 20. These members can hold the office for five years and are not eligible for reappointment. The Chairperson is appointed by the Central Government in consultation with the Chief Justice of India.
What kinds of cases are dealt with by National Green Tribunal?
The Tribunal has jurisdiction to try all the civil cases related to environmental issues. Howbeit, there is list of legislations under Schedule-I of the Act. The Tribunal has jurisdiction to try matters under these legislations. The list includes the following legislations:-
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Cess Act, 1977
- The Forest (Conservation) Act, 1980
- The Air (Prevention and Control of Pollution) Act, 1981
- The Environment (Protection) Act, 1986
- The Public Liability Insurance Act, 1991
- The Biological Diversity Act, 2002
What is the time limit for filing a case before the Tribunal?
Any case related to environmental issue can be filed within 6 months from the date on which the cause of action for such issue first arose. However, the Tribunal may extend such time period upto 60 days on its discretion upon being satisfied that the applicant was prevented by some sufficient cause from doing so.
The Air (Prevention and Control of Pollution) Act, 1981:
The Act provides for prevention and control of air pollution by establishing the Boards at Centre and State level to carry out that purpose. It vested the powers with the Boards to control the pollution. The major powers of the Boards are specified below:-
- Declare any area as air pollution area.
- Impose restrictions on any industrial units.
- Take samples and inspect by entering into any industry.
- Impose penalties on such industry found to be violating the norms established to control the air pollution.
The Water (Prevention and Control of Pollution) Act, 1974:
The Act provides the establishment of Boards at Centre and State level for prevention and control of water pollution. It prohibits the discharge of pollutants into water beyond the prescribed limit. Non-compliance of the same may lead to penalties. The Centre Board provides standards for the prevention and control of water pollution.
The Water (Prevention and Control of Pollution) Cess Act, 1977:
In order to impose levy and collection of a cess on water consumed by persons operating and carrying on certain types of industrial activities, the Centre Govt. enacted this Act. The reason behind collecting cess is to increase the resources of the Centre Board and State Boards for prevention and control of water pollution.
The Environment Protection Act, 1986:
Under this Act, the Centre Govt. is empowered to take necessary steps to protect and improve the quality of the environment by setting up standards for discharge of pollutants by industries. It covers the various subject including regulating the location of the industries, management of hazardous waste, and protection of public health from pollution. Any non-compliance under this Act may attract the punishment which may extend upto 5 years or with fine upto Rs. 1, 00,000/- or both. In case of continuation of such violation after first conviction then an additional fine of upto Rs. 5000/- per day may be imposed on the violator. If violation continues for a period of one year after conviction then such violator may be punished with imprisonment upto 7 years.
What are the compliances to be made under environmental laws?
In the year of 2016, the Ministry of Environment, Forests, and Climate Change categorized the industries. The industries under the ‘White’ category need not to acquire any permit or consent to operate as it includes non-polluting corporations. These types of industries only need to notify the concerned State Pollution Control Board.
The other categories such as Red, Orange, Green industries are required to obtain certain permits or consents from the concerned State Pollution Control Board. The required permits for such type of industries depend upon what kind of activity the business is carrying out and the size of the business.
Conclusion:
Along with citizens the companies are also indebted to protect the environment. They are legally bound to protect the environment by complying with diverse environmental laws. Otherwise, the non-compliance of such rules may attract heavy penalty on the violator.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
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