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Kerala

This tag is associated with 34 posts

Jurisdiction of courts under Reg.Trademarks Act & Copy Rights Act = Original jurisdiction Sec. 20 of C.P.C., Or. 2 , rule 3 of C.P.C – where the cause of action arose , there the case has to be filed under Registration of Trademarks Act : Special Jurisdiction under sec.62(2) of Copy Rights Act – Confirming on the courts where the plaintiff resides = Clubbing of both causes of actions in one suit – is a composite suit – When it is a composite suit, the court where the defendants goods are not available , nor do the defendants carry on business and reside within the jurisdiction of this Hon’ble Court, that court holds no jurisdiction under Registration of Trademarks Act simply because the plaintiff is residing : but the same court holds jurisdiction under sec.62(2) of Copy right Act for copyright violation suit = M/s. Paragon Rubber Industries …Appellant VERSUS M/s. Pragathi Rubber Mills & Ors. …Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41036

Jurisdiction of courts under Reg.Trademarks Act & Copy Rights Act =   Original jurisdiction Sec. 20 of C.P.C., Or. 2 , rule 3 of C.P.C – where the cause of action arose , there the case has to be filed under Registration of Trademarks Act : Special Jurisdiction under sec.62(2) of Copy Rights Act – Confirming on the … Continue reading

Code of Criminal Procedure, 1973 – s.239 – Ambit of – Approach to be adopted by the Court while exercising the powers vested in it u/s.239 CrPC – Discussed – Matrimonial case – Allegations of harassment for dowry and mental and physical torture by wife against husband (appellant no.3) and parents-in-law (appellant nos.1 and 2) – Cognizance by Court u/s.498A – Application by appellants for discharge u/s.239 CrPC – Dismissed by trial Court – Justification of – Held: Justified = The case at hand being a warrant case is governed by Section 239 Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. A plain reading of Section 239 CrPC would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.- It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The submissions of the accused has to be confined to the material produced by the police. Clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material.= Sheoraj Singh Ahlawat & Ors. …Appellants Versus State of Uttar Pradesh & Anr. …Respondents = Pulished in http://judis.nic.in/supremecourt/helddis.aspx

Code of Criminal Procedure, 1973 – s.239 – Ambit of – Approach to be     adopted by the Court while exercising the powers vested in it u/s.239 CrPC – Discussed – Matrimonial case – Allegations of harassment for dowry and mental and physical torture by wife against husband (appellant no.3) and parents-in-law (appellant nos.1 … 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

cut off date for starting the professional courses can not be extended = it is not possible to accede to the request of the petitioner to change the time-schedule when the last date for admitting the students, which was July 15, 2013, expired long ago. If the Central Government forwards the application to the DCI at this juncture, DCI shall hardly have any time to look into the feasibility of the scheme as per the requirements contained in Regulation 21. We have to keep in mind that in the schedule annexed to the Regulations 2006, six to eight months time is given to the DCI for this purpose. We are, thus, of the view that the High Court did not commit any error in holding that in the given circumstances mandamus could not be issued to the Central Government to exercise its discretionary powers in a particular manner to modify the time-schedule. Sanctity to the time-schedule has to be attached. It is too late in the day, in so far as present academic session is concerned, to give any direction.- This Court has highlighted the importance of cut off date for starting the professional courses, particularly medical courses, and repeatedly impressed upon that such deadline should be tinkered with. (See: Priya Gupta vs. State of Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila Mahavidyalaya vs. State of U.P. (2013) 2 SCC 617. 10. We, thus, do not find any error in the impugned judgment of the High Court. This petition is bereft of any merit and is accordingly dismissed.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40787   [REPORTABLE]     IN THE SUPREME COURT OF INDIA   CIVIL APPELLATE JURISDICTION   SPECIAL LEAVE PETITION (Civil) No. 22910 OF 2013   Educare Charitable Trust ……Petitioner   Vs.   Union of India & Anr. ….Respondents       J U D G M E N T       A.K.SIKRI,J.   … 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

Periyar river – Environmental protection = “Doctrine of the Public Trust”. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of few. = In 2005, Aluva Municipality reclaimed a part of Periyar river within its jurisdiction and the District Tourism Promotion Council, Ernakulam decided to construct a restaurant on the reclaimed land by citing convenience of the public coming on Sivarathri festival as the cause. – When the District Promotion Council started construction of the building on the reclaimed land, the appellant filed Writ Petition (C) No.436/2006 and prayed that the respondents be restrained from continuing with the construction of building on the banks of river Periyar and to remove the construction already made. These prayers were founded on the following assertions: a) Periyar river is a holy river called “Dakshin Ganga”, on the banks of which famous Sivarathri festival is conducted. 8 b) The river provides water to lakhs of people residing within the jurisdiction of 44 local bodies on its either side. c) In 1989, a study was conducted by an expert body and Periyar Action Plan was submitted to the Government for protecting the river but the latter has not taken any action. d) In December, 2005, Aluva Municipality reclaimed the land which formed part of the river and in the guise of promotion of tourism, efforts are being made to construct a hotel. e) The construction of hotel will adversely affect the flow of water as well as the river bed. f) The construction of the building will adversely affect Marthanda Varma Bridge. g) The respondents have undertaken construction without conducting any environmental impact assessment and in violation of the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. h) The construction of hotel building is ultra vires the provisions of notification dated 13.1.1978 issued by the State Government, which mandates assessment of environmental impact as a condition precedent for execution of any project costing more than Rs.10,00,000/-. The Division Bench of the High Court took cognizance of the sanction accorded by the State Government vide order dated 20.5.2005 for renovation and beautification of Manalpuram Park and dismissed the writ petition by simply observing that only a restaurant is being constructed and not a hotel, as claimed by the appellant. The cryptic reasons recorded by the High Court for dismissing the writ petition are extracted below: 10 “From the facts as gathered above, it transpires that no hotel at all is being constructed in the river belt. The petitioner does not appear to have ascertained the correct facts before filing the present petition. Main allegation by the petitioner that a hotel is being constructed on the banks of Periyar river is found to be incorrect. There is no merit in this writ petition. It is hereby dismissed.” = We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems.”= There is nothing in the language of G.O. dated 20.5.2005 from which it can be inferred that while approving the proposal forwarded by the Director, Department of Tourism for renovation and beautification of Manalpuram Park at an estimated cost of Rs.55,72,432/-, the State Government had amended G.O. dated 13.1.1978 or otherwise relaxed the conditions embodied therein. The record also does not show that the Department of Tourism had furnished a detailed comprehensive environmental impact statement for the project so as to enable the Committee to make appropriate review and assessment. Therefore, it must be held that the execution of the project including construction of restaurant is ex facie contrary to the mandate of G.O. dated 13.1.1978, which was issued by the State in discharge of its Constitutional obligation under Article 48-A. Unfortunately, the Division Bench of the High Court ignored this crucial issue and casually dismissed the writ petition without examining the serious implications of the construction of a restaurant on the land reclaimed by Aluva Municipality from the river. G.O. dated 13.1.1978 is illustrative of the State Government’s commitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978. In the result, the appeal is allowed and the impugned order is set aside. As a sequel to this, the writ petition filed by the appellant is allowed and the respondents are directed to demolish the structure raised for establishing a restaurant as part of renovation and beautification of Manalpuram Park at Aluva. The needful be done within a period of three months from today.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40498 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4941 OF 2013 (Arising out of SLP(C) No. 18837 of 2006) Association for Environment Protection ….Appellant versus State of Kerala and others ….Respondents J U D G M E N T G.S. SINGHVI, J. 1. Leave granted. 2. Since time … Continue reading

Police case under sec.498 A and 306 I.P.C. ended in acquittal .No appeal is filed. after two years on private complaint , case under sec.302 was taken in to cognizance , trial court convicted main accused and High court acquitted not believing the evidence of child witness and also basing on postmortem report = “I cannot definitely say whether it is a case of suicide or homicide.” DW-1, Professor and Head of the Department of Forensic Medicine and Police Surgeon, Medical College, Trichur, has also opined in his medico-legal opinion Ex. D-1 “Under the circumstances, as per the medical evidence, the most likely manner of causation of injuries in this case is self infliction except for the fact that there is always a chance of any mechanical injury to be sustainable by homicidal manner.” Thus, the aforesaid opinions of the two medical experts also do not lend assurance to the prosecution story that the death of the deceased was only homicidal. The opinion at page 387 of Modi’s Medical Jurisprudence & Toxicology, Twenty-Second Edition, to which reference was made by Mr. Deepak, learned counsel for the appellant-Hamza, does not materially conflict with the expert opinions of PW-4 and DW-1. On the evidence of PW-1 read with the opinions of PW-4 and DW-1, the High Court could not have held that the prosecution has been able to prove beyond reasonable doubt that A-1 killed the deceased by stabbing her on the neck with the help of A-2. In this case, the police itself had investigated and filed a charge-sheet under Sections 498-A and 306 of the IPC against four members of the in-laws of the family of the deceased and found that it is a case of suicide. Thus, this is not a case where the only conclusion that could be drawn considering the entire evidence is that the death was homicidal and not suicidal. – We, therefore, do not find that the view taken by the High Court that A-1 and A-2 were entitled to acquittal is perverse or unreasonable on the evidence on record so as to call for our interference under Article 136 of the Constitution and we accordingly dismiss the appeals.

‘ published in http://courtnic.nic.in/supremecourt/qrydisp.asp ITEM NO.1B COURT NO.3 SECTION IIB [FOR JUDGMENT] S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO(s). 268 OF 2007 HAMZA Appellant (s) VERSUS MUHAMMADKUTTY @ MANI & ORS. Respondent(s) WITH CRIMINAL APPEAL NO. 1378 of 2007 … Continue reading

Section 213. Right as executor or legatee when established. (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of a authenticated copy of the will annexed…………… (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.- Now by the Indian Succession [Amendment] Act, 1962, the section has been made applicable to wills made by Parsi dying after the commencement of the 1962 Act.- We have shown above that it is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on 1.9.1870 were subject to the Lt. Governor of Bengal or to areas covered by original jurisdiction of the High Courts of Bombay and Madras and to all wills made outside those territories and limits so far as they relate to immovable property situate within those territories and limits.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6     CASE NO.: Writ Petition (civil) 137 of 1997 Writ Petition (civil) 674 of 1998 PETITIONER: CLARENCE PAIS & ORS. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 22/02/2001 BENCH: S. Rajendra Babu & R.C. Lahoti JUDGMENT: J U D G M E N TL…I…T…….T…….T…….T…….T…….T…….T..J … Continue reading

filing of the second FIR and fresh charge sheet is violative of fundamental rights under Article 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted the CBI’s plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed the CBI to “take over” the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment. – In view of the above discussion and conclusion, the second FIR dated 29.04.2011 being RC No. 3(S)/2011/Mumbai filed by the CBI is contrary to the directions issued in judgment and order dated 08.04.2011 by this Court in Writ Petition (Criminal) No. 115 of 2009 and accordingly the same is quashed. As a consequence, the charge sheet filed on 04.09.2012, in pursuance of the second FIR, be treated as a supplementary charge sheet in the first FIR. It is made clear that we have not gone into the merits of the claim of both the parties and it is for the trial Court to decide the same in accordance with law. Consequently, Writ Petition (Criminal) No. 149 of 2012 is allowed. Since the said relief is applicable to all the persons arrayed as accused in the second FIR, no further direction is required in Writ Petition (Criminal) No. 5 of 2013.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 149 OF 2012 Amitbhai Anilchandra Shah …. Petitioner(s) Versus The Central Bureau of Investigation & Anr. …. Respondent(s) WITH WRIT PETITION (CRIMINAL) NO. 5 OF 2013 J U D G M E N T P. Sathasivam, J. 1) Amitbhai Anilchandra … Continue reading

the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 =order of detention dated 16/4/2012 issued by the detaining authority i.e. the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, “the said Act”). The order of detention directed his detention with a view to preventing him in future from smuggling goods. we hold that the order of detention dated 16/4/2012 is valid. However, on account of delay in disposal of the representation of the detenu by the State Government, the continued detention of the detenu is rendered illegal. We, therefore, direct that the detenu – Abdul Nasar Adam Ismail be released from detention forthwith if he is not already released from detention and he is not required in any other case. The appeal is disposed of accordingly.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 520 OF 2013 [Arising out of Special Leave Petition (Crl.) No.1359 of 2013] ABDUL NASAR ADAM ISMAIL Through Abdul Basheer Adam Ismail … APPELLANT Versus THE STATE OF MAHARASHTRA & ORS. … RESPONDENTS JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave … Continue reading

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