6 minute read
Ask the Law
Sajad Ahmad Mir - Principal Solicitor at M/s Sajad Mir & Associates
Q: If someone intentionally breakes or damages my phone, can I do anything legally?
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Sajad Ahmad Mir (SAM): You can file a police complaint! If someone breaks your phone. As per section 43(d) of the Information Technology act, if someone breaks your computer, laptop, and phone, in that situation they are bound to pay you adequate compensation and if they do not, you can file a police complaint against the person.
Q: What should I do if someone parks their car in front of my house?
SAM: File a complaint before the local police station immediately under the ground of Wrongful restraint, under Section 339 of the Indian Penal Code. Leaving a vehicle at rest on any public place in such a way as to cause or likely to cause danger, obstruction or undue inconvenience to other road users is an offence under the MV act. If the police is unable settle the matter, file an injunction suit coupled with easement of necessity before civil court. An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable or more convenient enjoyment. A person cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours. Furthermore, under Section 35 of the Indian Easements Act, 1882 the person can obtain permanent injunction restraining anyone from obstructing his right of passage. Please do remember that the place in front of a gate is a public place and the action is not highly serious and illegal. But parking regularly comes under the nuisance.
Q: Does traffic police have the right to snatch my vehicle key?
SAM: According to Indian Motor Vehicle Act 1932, only a traffic police personnel of the rank of an assistant sub-inspector (ASI) can fine you for violating traffic rules. The ASIs, sub-inspectors, and inspectors have the authority to fine you on the spot, and traffic constables are only present for their assistance. But they don’t have the authority to remove keys from your vehicle. Also, a traffic cop cannot deflate the tires of your vehicle.
Q: Is it compulsory to carry carry hard copies of driving licence, registration certificate and insurance documents?
SAM: You no longer need to carry the physical copy of your driving licence, registration certificate, permits, PUC and insurance documents of your vehicle, if you have the digital copies in the MParivahan or digilocker app on your smartphone. The amended Motor Vehicle Rules were notified to facilitate digital verification of documents and aim to curb corruption on roads. However, keeping a photograph of the documents in one’s mobile phone won’t be enough, as the details need to be downloaded from a server. M-Parivahan app is a better option considering that one can download all documents related to licence and vehicle registration. According to the rules, if details provided by the driver or vehicle owner are validated through electronic means by the police and transport department officials, no physical document should be demanded for inspection, even in cases of offence, which necessitates seizure of any document.
Adoption Regulation Act 2020 & Juvenile Justice (Care and Protection) Act 2015.
Q: I am unable to repay my personal loan to the bank, can I be thrown in jail?
SAM: For people searching for ‘what happens if a personal loan is not paid’, apprehension of arrest is normal. But there is a legal fact which people are not usually aware of. If you receive a legal notice for non-payment of loan, it does not mean that non-payment of loan will directly take you to jail/ prison. It should be noted that non-payment of any kind of loans to banks is a matter of civil laws in India. Criminal proceedings cannot be initiated, unless factors like cheating, forgery of documents, etc. is involved. Also, if payment of loan is done through cheques and the same gets bounced, cheque bounce case under Section 138 of Negotiable Instruments Act, 1881 may be invoked. The punishment for non payment of personal loan can be imprisonment in worst cases, since the banks get nothing by sending the defaulter to jail. Their interest lies in the payment of loan. The bank may start with settlement, arbitration, or even a civil suit. In the worst outcome of a civil suit, there can be imprisonment.
Q: My father had clearly mentioned in will and registered that Son A has no claim in any other property other than the one already given to him. Now the Son A is claiming to get a share in another property which is under mother’s name and, after her death should go to Son B and Son C (this may not be in will). Can the Son A legally claim a share in the second property (both father and mother are deceased now). Can Son B and C sell the property without Son A signature?
SAM: If the mother was exclusive owner of the property, or she got her share after the will of father and she died intestate, then the property would devolve by surviviorship.
Q: My landlord is not taking rent from me for some years now. I’m not sure if he is doing that deliberately. No rent has been paid since he is not coming to collect it. I don’t want to lose my rented place. Please advise.
SAM: You may send rent through money order and if he does not accept, you may deposit rent in court.
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