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Kerala High Court

This tag is associated with 39 posts

Indian Easements Act, 1882 – s.13(b) – Easement rights – Easement by grant – Suit for declaration of easement rights over `B’ schedule property of the plaint as a pathway to `A’ schedule property of the plaint – `A’ Schedule property had been allotted to plaintiff in terms of a settlement deed – `B’ Schedule pathway was situated within property under control and use of defendants – Held: Grant can be by implication as well – There was implied grant of `B’ schedule property as pathway, which can be inferred for the reason that no other pathway was provided to plaintiff for access to `A’ schedule property and there was also no objection from defendants to use of `B’ schedule property by plaintiff as pathway for number of years, at least up to the time, when alone cause of action for the suit arose – Plaintiff acquired right of easement in respect of `B’ schedule pathway by way of implied grant. = Sree Swayam Prakash Ashramam & Anr. …Appellants VERSUS G. Anandavally Amma & Ors. …Respondents = published in http://judis.nic.in/supremecourt/helddis.aspx

Indian Easements Act, 1882 – s.13(b) – Easement rights – Easement by grant – Suit for declaration of easement rights over `B’ schedule property of the plaint as a pathway to `A’ schedule property of the plaint – `A’ Schedule property had been allotted to plaintiff in terms of a settlement deed – `B’ Schedule … Continue reading

When the contract is governed by Statutory rules and Regulations – General terms of contract Act like sec. 56 Doctrine of Frustration apples – No = MARY …APPELLANT VERSUS STATE OF KERALA AND ORS. … RESPONDENTS – judis.nic.in/supremecourt/filename=40891

When the contract is governed by Statutory rules and Regulations – General terms of contract Act like sec. 56 Doctrine of Frustration apples  – No = Abkari Licence – Highest bidder – public opposing for stalling a shop – refund of deposited amount – contract frustrated due to public oppose  – When the contract is governed by Statutory rules … Continue reading

Section 2(h) of the RTI Act – Kerala Co-operative Societies Act – Not public authority- THALAPPALAM SER.COOP.BANK LTD.& ORS. Vs. STATE OF KERALA & ORS. published in judis.nic.in/supremecourt/filename=40863

Cooperative  Societies  registered  under     the Kerala Co-operative Societies Act will not fall  within  the  definition   of “public authority” as defined under Section 2(h) of the RTI Act =       whether  a  co-   operative society registered under the Kerala  Co-operative  Societies  Act,   1969 (for short “the Societies Act”) will  fall … Continue reading

Death certificate -Where funeral was conducted – that local authority can also issue a death certificate = refusing to register the death of his wife, Mrs.Pankajam in Chennai, as per the provisions of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the Act) and consequently, sought for a direction to the respondents to issue the death certificate of late Mrs.Pankajam.= Rule 7 of the said Rules deals with notification and form of Certificate under section 10 and it reads as follows: ” (1) The certificate as to the cause of death required under sub-section (3) of section 10 shall be issued in Form No.5 or 5-A and the Registrar shall, after making necessary entries in the Register of Births and deaths, forward all such certificates to the Chief Registrar or the Officer specified by him in this behalf by the 10th of the month immediately following the month to which the certificate relates. (2) Any person who performs the funeral ceremonies of a person dying in a local area within the jurisdiction of a municipality, panchayat or other local authority or any other area, shall whenever required furnish to the Registrar such information as he possesses regarding the particulars required for registration”= The words “and shall also” take steps to inform himself employed in Section 7(2) of the Act, has to be read disjunctively and not conjunctively. Whenever, an intimation is given by the persons authorised under Sections 8 and 9 or Rule 6 of the Rules made thereunder, the Registrar has to enter the particulars in the register maintained for the purpose and if any information is received by the Registrar, either through the abovesaid persons or others, he may either orally or in writing, require any person to furnish any particulars, within his knowledge in connection with the Birth or Death in the locality, within which, such person resides and after ascertaining the correctness of the particulars furnished, register the same under the Act.- In view of the above, the contention that the respondents have no statutory duty to register the death of the petitioner’s wife, within the State of Tamil Nadu, as the death had occurred in a moving train between New Delhi and Kanpur, is untenable. 39. In the light of the above discussion and following the judgments stated supra and of the factual admission on the part of the respondents in the counter affidavit the dead body of the petitioner’s wife had been brought to Chennai and cremated within the jurisdiction of the first respondent, the impugned communications are set aside and there shall be a direction to the respondents to register the death of the petitioner’s wife to issue the death certificate of late Mrs.Pankajam, wife of the petitioner, after obtaining a declaration from him for registration, to the effect that the particulars sought to be registered are true and correct and that the particulars have not been registered anywhere else in India and also that the same does not run in conflict with particulars registered by any other authority outside India. 40. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.

published in http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=38256 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.12.2010 CORAM THE HON’BLE MR. JUSTICE S.MANIKUMAR W.P.No.18187 of 2010 M.P.Nos.1 and 2 of 2010 N.Vedantam … Petitioner vs 1. The Executive Officer, Town Panchayat, Perungalathur, Chennai 600 063. 2. The Director, Directorate of Public Health and Preventive Medicine, 359, Anna Salai, Chennai-6. … … Continue reading

mines and minerals = whether the owners of jenmom lands in the Malabar area[1] are the proprietors of the soil and the minerals underneath the soil = full Bench of the Kerala High Court was called upon to examine the question (on a reference by another Division Bench) – whether the owners of jenmom lands in the Malabar area[1] are the proprietors of the soil and the minerals underneath the soil – and answered the said question in the negative: “Hence, we are of the view that so far as the lands in question are concerned, the minerals belong to the Government…” (para 31) = Section 10 – Compulsory acquisition of rights to work minerals (1) Where it appears to the Central Government that any minerals from which in its opinion any of the prescribed substances can be obtained are present in or on any land, either in a natural state or in a deposit of waste material obtained from any underground or surface working, it may by order provide for compulsorily vesting in the Central Government the exclusive right, so long as the order remains in force, to work those minerals and any other minerals which it appears to the Central Government to be necessary to work with those minerals, and may also provide, by that order or a subsequent order, for compulsorily vesting in the Central Government any other ancillary rights which appear to the Central Government to be necessary for the purpose of working the minerals aforesaid including (without prejudice to the generality of the foregoing provisions)– (a) rights to withdraw support; (b) rights necessary for the purpose of access to or conveyance of the minerals aforesaid or the ventilation or drainage of the working; (c) rights to use and occupy the surface of any land for the purpose of erecting any necessary buildings and installing any necessary plant in connection with the working of the minerals aforesaid; (d) rights to use and occupy for the purpose of working the minerals aforesaid any land forming part of or used in connection with an existing mine or quarry, and to use or acquire any plant used in connection with any such mine or quarry; and (e) rights to obtain a supply of water for any of the purposes connected with the working of the minerals aforesaid, or to dispose of water or other liquid matter obtained in consequence of working such minerals. (2) Notice of any order proposed to be made under this section shall be served by the Central Government– (a) on all persons who, but for the order, would be entitled to work the minerals affected; and (b) on every owner, lessee and occupier (except tenants for a month or for less than a month) of any land in respect of which rights are proposed to be acquired under the order. (3) Compensation in respect of any right acquired under this section shall be paid in accordance with section 21, but in calculating the compensation payable, no account shall be taken of the value of any minerals present in or on land affected by the order, being minerals specified in the order, as those from which in the opinion of the Central Government uranium or any concentrate or derivative of uranium can be obtained.= we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the instant appeals, no such deprivation is brought to our notice and therefore we hold that the appellants are the proprietors of the minerals obtaining in their lands. We make it clear that we are not making any declaration regarding their liability to pay royalty to the State as that issue stands referred to a larger Bench.

published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40542      Reportable     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.4540-4548 OF 2000 Threesiamma Jacob & Ors. …Appellants Versus Geologist, Dptt. of Mining & Geology & Ors. …Respondents WITH   CIVIL APPEAL NO. 4549 OF 2000 J U D G M E N T … Continue reading

Service matter – voluntary retirement application pending – terminated service due to unauthorized absent from service by joining in other’s company = Before accepting the voluntary retirement No employee remain absent from his duties with out permission, pending his application for voluntary retirement, the employer can initiate departmental proceedings on founding guilty, his services may be terminated and in such case, the petitioner can not press for disposal his application for voluntary retirement application first by dropping the disciplinary proceedings = Voluntary Retirement Scheme was introduced and the Petitioner also applied on 7.4.1998 to avail the benefits of the Scheme. However, without waiting for acceptance of his application seeking voluntary retirement, the Petitioner proceeded to the United States and applied for further leave from 1.6.1998 to 30.6.1998. Such prayer was rejected and the Petitioner was asked by letter dated 26.6.1998 to join his duties from 1.7.1998. – the Petitioner moved the Kerala High Court in its writ jurisdiction for a direction upon the authorities to accept his prayer for voluntary retirement and to drop the disciplinary action initiated against him. – before the Division Bench in which Petitioner’s counsel strongly urged that his application for voluntary retirement be accepted. He also added a new dimension to his submissions that since there was no response from the side of the Respondent, his application for voluntary retirement must be deemed to have been accepted. Accordingly, the subsequent proceedings taken by way of disciplinary proceedings and the order of termination of services passed therein, must be held to be entirely invalid.= whether the order of dismissal passed against the Petitioner could be converted into an order of compulsory retirement. = It is well-established that a Voluntary Retirement Scheme introduced by a company, does not entitle an employee as a matter of right to the benefits of the Scheme. Whether an employee should be allowed to retire in terms of the Scheme is a decision which can only be taken by the employer company, except in cases where the Scheme itself provides for retirement to take effect when the notice period comes to an end. A Voluntary Retirement Scheme introduced by a company is essentially a part of the company’s desire to weed out the deadwood. 14. The Petitioner’s contention that his application for voluntary retirement came into effect on the expiry of the period of notice given by him must fail, since there was no such stipulation in the scheme that even without acceptance of his application it would be deemed that the Petitioner’s voluntary retirement application had been accepted. Once that is not accepted, the entire case of the Petitioner falls to the ground. The decision in Tek Chand’s case (supra) will not, therefore, have any application to the facts of this case, particularly when the Petitioner’s application for voluntary retirement had not been accepted and he had been asked to rejoin his services. The Petitioner was fully aware of this position as he continued to apply for leave after the notice period was over. 15. We are not, therefore, inclined to interfere with the orders impugned in the Special Leave Petition which is, accordingly, dismissed.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40508 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 31250 OF 2011 C.V. Francis …Petitioner Vs. Union of India & Ors. …Respondents J U D G M E N T ALTAMAS KABIR, CJI. 1. The Petitioner, who has appeared in person, was employed as a … Continue reading

Service matter = Government Order (for short “G.O.”) dated 10.1.1977 governed the method of promotions to the post of Section Officer in the Administrative Secretariat and also laid down the essential qualifications of the incumbents in the feeder category to be eligible for consideration for such promotion. The aforesaid G.O. dated 10.1.1977 was superseded by another order dated 5.6.1989 under which G.O. three categories of incumbents in the ratio of 15:1:1 (in a cluster of 17 posts) were made eligible for promotion to the post of Section Officer. – Clause (d) being the relevant clause may be usefully noticed at this stage. “The graduate typists/confidential assistants will not be appointed as Section Officer in preference to the typists/confidential assistants who have already passed the suitability test and who are awaiting appointment as Section Officer. However, qualified and eligible graduate typists/confidential assistants will be appointed as Section Officers if eligible suitability test passed trained typists/confidential assistants are not available in their turn for appointment as Section Officer.” 3. Clause (d) contained in the G.O. dated 17.6.1988 came to be subjected to different interpretations and understandings unravelling several ambiguities.- whether it gave a preferential right to Graduate Typists/Confidential Assistants for consideration for promotion and, if so, was the said right available in perpetuity after the date of coming into force of the G.O. w.e.f. 17.6.1988. The aforesaid controversy between the Graduate and Non-graduate aspirants for the promotional post was attempted to be resolved by several court orders until the Government thought it appropriate to clarify the matter by issuing a subsequent G.O. almost a decade later, i.e., on 19.3.1998. The aforesaid G.O. dated 19.3.1998 which is on record goes on to recite that, “The Typists/Confidential Assistants who had passed the Suitability Test and completed the training for one year as Assistant and became qualified for appointment as Section Officer in the Administrative Secretariat as on 17.06.1988 alone would be eligible for preference over the Graduate Typists/Confidential Assistants”.= The clarificatory G.O. dated 19.3.1998, though seeking to clarify and throw light on the confusion caused by reading the date of the G.O. i.e. 17.6.1988 as a cut off date for working out a preference in favour of the Graduates, had gone beyond the terms of the main G.O. dated 17.6.1988 by stating that it is only those Typists and Confidential Assistants who had passed the qualifying examination before 17.6.1988 who will be entitled to have priority over Graduate Typists/Confidential Assistants. How the clarification sought to be made by the G.O. dated 19.3.1998 could have the effect of giving priority to either of the 2 groups of incumbents when no such priority or preference was contemplated by the initial G.O. dated 17.6.1988 defies logic. The above stated effect of the clarification, if accepted, would occasion a corollary that after 17.6.1988, Graduate Typists/Confidential Assistants will always have priority over Non-graduates though such Non-graduates may have passed the qualifying examination and are otherwise eligible for promotion. If the above meaning is to be attributed to the clarificatory G.O. the same would surpass the main G.O. dated 17.6.1988. effect of the clarificatory G.O. cannot, by any means, supersede or override the terms of the main order. This is an elementary principle of interpretation. This is precisely how the High Court has understood the issue before it and has held that the original G.O. dated 17.6.1988 merely exempts Graduate Typists/ Confidential Assistants from passing the suitability test and no further. If that is the true purport and effect of the G.O. dated 17.6.1988, on which we have no doubt, naturally, the clarificatory G.O. has to be restricted in its meaning as has been done by the High Court and cannot be allowed to work to the undue advantage of the Graduates and to the detriment of the non-Graduates. For the aforesaid reasons, we do not find any merit in this appeal. We accordingly dismiss the same and affirm the judgment and order dated 01.02.2006 of the Division Bench of the High Court.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1919 OF 2008 B. Rugmini Amma & Anr. … Appellant(s) Versus B.S. Nirmala Kumari & Ors. … Respondent(s) J U D G M E N T RANJAN GOGOI, J. An appellate order dated 01.02.2006 of the Kerala High Court affirming … Continue reading

Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. ; “The DNA analysis made it clear that the blood samples of the parents of Praveen matched with the DNA of Praveen, deceased and the same proved and established the identity of the dead body as the DNA had also been extracted from the portion of the limbs recovered from the lake and compared with that of DNA of parents.” ; to appreciate his evidence under Section 3 of the Evidence Act. The Judge must consider whether a prudent man would appreciate such evidence, and not appreciate the same in accordance with his own perception. The basis for appreciating evidence in a civil or criminal case remains the same. However, in view of the fact that in a criminal case, the life and liberty of a person is involved, by way of judicial interpretation, courts have created the requirement of a high degree of proof. 37. In view of the above, we do not find any merit in the appeal and the same is dismissed accordingly. However, before parting with the case, we would like to mention that the courts below have appreciated the entire evidence meticulously, but it would have been desirable if all the circumstances which completed the chain, rendering the accused liable for punishment could have been put together, to facilitate better understanding of the judgment.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1774 of 2010 R. Shaji …Appellant Versus State of Kerala …Respondent J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the judgment and order dated 10.12.2009 delivered by the Kerala High Court … Continue reading

Sections 380 and 451 of the IPC = alleged recovery of gold chain at his instance. That cannot connect the appellant to the theft. The Trial Court has stated that since chain was recovered at the instance of the appellant, the only inference which can be drawn is that he committed the theft. Drawing such inference in the facts of this case would be totally unjust. Pertinently, PW8 from whose shop the chain is said to have been recovered has turned hostile. = FIR was registered after about sixteen days from the date of alleged theft. PWs-1 and 2 did not even realize that the chain was stolen. It is only when the accused were brought to their house after about sixteen days that they realized that the chain was stolen and FIR was lodged. The chain in question was being worn by PW2. It is stated to have been stolen while she was sleeping. It is inconceivable that she would not realize that she had lost her chain. The incident in our view is not unfolded truthfully. A1 and A3 have been rightly acquitted because nothing links them to the offence. But, similar is the case with the appellant. The only evidence against him is the alleged recovery of gold chain at his instance. That cannot connect the appellant to the theft. The Trial Court has stated that since chain was recovered at the instance of the appellant, the only inference which can be drawn is that he committed the theft. Drawing such inference in the facts of this case would be totally unjust. Pertinently, PW8 from whose shop the chain is said to have been recovered has turned hostile. Thus, the prosecution is relying only on police witnesses. In this case, it is unsafe to do so. = Grave doubt is, therefore, created as to whether the appellant could be involved in the offence of theft. We are, therefore, of the view that benefit of doubt must be given to the appellant and he must be acquitted. – We, therefore, allow the appeal. The impugned judgment and order is quashed and set aside. The appellant is acquitted of the offences under Sections 380 and 451 of the IPC. The appellant is in jail. He is directed to be released forthwith, unless he is required in any other case.

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 177 OF 2013 (Arising out of Special Leave Petition (Crl.) No.5437 of 2012) AZEEZ … APPELLANT Versus STATE OF KERALA … RESPONDENT JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave granted. 2. The appellant(A2-Azeez) along with two others i.e. A1-Khalid and A3- … Continue reading

grant of LPG distributorship – Challenging the genuineness of the experience certificates -The experience certificates issued by M/s Sree Agencies and M/s Bajaj Allianz Life Insurance Company Ltd. were evaluated by the Selection Committee. It has already been stated in the counter affidavit filed by the Corporation that the quality of experience will be judged on the basis of the response to the questions related to experience in direct sale, home delivered products, hospitality/service industry etc. by the candidates in the interview. It has also been informed to this Court that the appellant has been awarded 4 marks for experience by the Selection Committee consisting of 3 senior officials of the Company who are well qualified and experienced in assessing the required experience for LPG distributorship. It is further asserted that after the interview, field verification had been done by the Corporation to verify the genuineness and veracity of the documents submitted by the candidate as contemplated in clause 16 of the guidelines. It is further stated that the field verification had been conducted by a team comprising of 2 officers of the Corporation and that the team had met the Proprietor as well as Manager of M/s Sree Agencies, who confirmed that Mr. Sajeesh Babu K. (appellant herein) worked with them on a part-time basis. It is the stand of the Corporation that since the persons who have issued the experience certificate admitted its issuance, the Corporation treats the same as genuine. They also reiterated and verified that the certificates of experience have no relevance in granting marks under the parameter ‘experience’ as the same has been awarded on the basis of the response to the questions related to experience in the relevant field. The marks awarded by the Selection Committee are as follows:- |Name |Edu. |Age |Experience |Business |Personality |Total | | |Quali. | | |ability | |Marks | |Santhosh |15 |2 |3 |3.17 |1.83 |25.00 | |N.K. | | | | | | | |Sajeesh |15 |2 |4 |3.83 |2.00 |26.83 | |Babu K. | | | | | | | 15) From the above discussion, it is clear that in terms of the guidelines, the Selection Committee consisting of 3 experienced persons assessed the ability of the candidates with reference to the answers for their questions and awarded marks.- there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he is fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection. 20) In the light of the above discussion, we set aside the judgment of the learned single Judge of the High Court dated 16.03.2011 in W.P.(C) No. 7622 of 2010 as well as the judgment of the Division Bench dated 06.04.2011 in W.A. No. 464 of 2011 and confirm the decision of the Selection Committee. 21) The civil appeal is allowed. There shall be no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 2 CIVIL APPEAL NO. 7599 OF 2012 3 (Arising out of SLP (C) No. 13499 of 2011) Sajeesh Babu K. …. Appellant (s) Versus N.K. Santhosh & Ors. …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. … Continue reading

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