REGD. No. KLiEKN'I/ ll5/ 2010 (provisionat) I.L.R. 2011 (4) Kerala NDIAN LA\ry REPORTS KERALA SERIES Containing cases determined by the High Court of Kerala and the Supreme Court of India INDEX (Vol. 4) 20tt (0ctober I to December 31) 1 933 (Aswina-Pousha) Editor Sri V. G. ARUN, B.A., LL.B., Advocate Reporters Sri P. M. MOHAMMAD SHIRAZ, 8.A., LL.M., Advocate Sri RAJIT, B.Sc., LL.B., Advocate PUBLISIIFD TINDER TI{E 16/823/2011-t AUTHORITY OF TI{E GOVERNMENT OF KERAI-A [All Rights Reserved]
Transcript
REGD. No. KLiEKN'I/ ll5/ 2010 (provisionat)I.L.R. 2011 (4) Kerala
NDIAN LA\ry REPORTSKERALA SERIES
Containing cases determined by the High Court of Kerala andthe Supreme Court of India
INDEX
(Vol. 4)20tt(0ctober I to December 31)
1 933
(Aswina-Pousha)
Editor
Sri V. G. ARUN, B.A., LL.B., Advocate
Reporters
Sri P. M. MOHAMMAD SHIRAZ, 8.A., LL.M., Advocate
Sri RAJIT, B.Sc., LL.B., Advocate
PUBLISIIFD TINDER TI{E
16/823/2011-t
AUTHORITY OF TI{E GOVERNMENT OF KERAI-A
[All Rights Reserved]
INDEX TO PART IV
TABLE OF CASES REPORTED
Ajinees, K. v.
Al Shifa Super Speciality Hospital v.
for Piles
Alex C. Joseph v
Andichami @ Andiappan y.
Anii Kumar, K. B. v.
APL (India) Pvt. Ltd. y.
Appu v.
Arunkumar, V. A. v.
Ashraf, P. M. v.
Babu, P. P. v.
Ba1ju, K. v.
Balakrishnan Masteq T. v.
Balakrishnan, P. v.
Basheer, M. M. v.
Bhanunni, A. C. @ Valluvanattukara v.
Vallabha Valiya Raja
Chairman-cum-Managing
Director, BSNL v.
Chand Muhammed u
Chief lnformation Commissioner, v.
Manipur
Dr. Harish Babu Maddineni v.
Dr. Mary Senteria v.
Empioyees Provident Fund Organization v.
Ganesh Kumar, M. v.
Girish Babu, G. v.
Gopi, P. S. v.
Govindan Kutty Menon, K.N. v.
Great India Estates Pvt. Ltd. v.
Hemachandran, M.T. @ Kamalesh v.
Hemanth Kumar v.
In Re M. V. Jayarajan
28-12-11
State of Kerala
A1 Shifa Hospital (P) Ltd.
Union of India
Sub Inspector of Police,Perinthalmanna
Sheela, N. S.
Chairman, Cochin Port Trust
Surendra Swami, P.
State of Kerala
Senior Intelligence Offrceq DRI
Jacob K. Thomas
Govemment of India
Ramachandran Master, K. M.
Labour Court
State of Kerala
Commissioner, HR & CEDepartment, Kozhikode
Tittin, P.
Zeenath
State of Manipur (S.C.)
State of Kerala
Mahatma Gandhi University
Employees Provident FundAppellate Tribunal
Sreedhara Shetty
High Court of Kerala
S.I. of Police
Shaji, C. D. (S.C.)
State of Kerala
Sub Inspector of Police
S.I. of Police
Page
%
921
1008
579
119
2:t7
601
414
246
Wffi3n26s
617
43
379
798
885
568
6%
898
598
817
387
807
861
841
261
453
187 I
James PunnaPuzha
Jayarajan
Jince Mary Johns
Jubilee Mission Medical College and
Research Institute
Kakkamkowal Easwara Varriar
Kalyani
Krishnadas
Krishnashri' B'
KSIDC
Madhusoodhanan Nair, K'
Manager, P. K' High School
Manilal Panickeq S'
Mar Gregorious Memorial v'
Muthoot Medical Centre
Max New York Life Insurance Co' Ltd' v'
M/s Maharashtra APex
CorPoration Ltd' v'
IWs PhiliPs Carbon Black Ltd' Y'
lWs Reva Electric Car Co' (P) Ltd' v'
IWs Shastha EnterPrises v'
MuthukoYa ThooPiYakal v'
Narayani v'
National Aviation Company of India Ltd' v'
National Insurance Company Ltd' v'
National Insurance Co' Ltd' Y'
New India Assurance Co' Ltd' v'
New India Assurance Co' Ltd' v'
Nissam,K. S.
Phouiad, K.
Popular Motor CorPoration
Purushothaman, K'
Purushothaman, K'
Pushpangadan, N' P'
Puthucode Jurna-ath Committee
Rajan, K' S.
E
11
v. Sabitha Rahim
v. Sabitha
v. JohnY, K. P.
v. Government of Kerala
v. District Collector
v. State Tr. InsPector ofPolice (S.C')
v Henry JosePh
v. K.P.S.C.
v. District Collector
v. State of Kerala
u. State of Kerala
v. Titto Abraham
Page
@306
531
Kerala UniversitY of Health
and Allied Sciences
Insurance Ombudsman
Balaji, G.
Sabu ThozhuPPadan
IWs Green Mobil (S'C')
IWs Olam Intemational Ltd'
Union Territory of LakshadweeP
Sreedharan
Abdul Salam
Chacko, P. C'
Moidu, M. K'
Balakrishnan
RemYa
Premji JoY
9'13
ffi6'19
724
373
559
830
382
196
976
539
28-12-11
68s
301
450
869
'705
334
912
m4
T7
821
311
744
113
?51
'74v. Bharath Sanchar Nigam Limited
v. State of Kerala
v. Kerala State Co-oPerative
EmPloYees' Pension Board
v. Kerala State Co-oPerative
EmPloYees' Pension Board
v. Federal Bank Ltd' (FB')
v. Abdul Rahiman' T' S'
v. Food lnsPector
125
Raman Gopi
Regional Manager, Syndicate Bank
Sahira Basheer
Sajitha, B.
Saju, K. A.
Saliyal Beevi
Sampurna Behura
Samuel, T.
Secretary Paippad Grama Panchayath
Shaila E. J.
Shankara Rai
Sheeba Pulikkal
Sheeja, P. R.
Sithara
Souda Beevi
Sree Ramananda Asram
St. Peter's Orthodox Syrian Church
Sumathikutty
Thankappan, E. A.
Union of India
Venkitachalam, K.R.
Speech
111
Kunjuraman Uthaman (F. B. )
General Secretary Syndicate
Bank Employees Union
Indian Oil Corporation Ltd.
State of Kerala
State of Kerala
State of Kerala
Union of India (S.C.)
Elsykutty Philip
Tessy P. Das
KPSC
Thimmanna Rai
Shoukath Ali
Secretary KPSC
Harikrishnan Nair
S.I. of Police, Pallickal Police
Station
Asokan, P.
Fr. Abraham Mathews
Manoj, N.
State of Kerala
Aboobacker
State of Kerala
v.
v.
Page
155
t4ly9v
88
r038
t%
851
1
962
436
&9
901
528
79
q]
76nl6v228
550
l-vl11
lx-xvI
.. xVlF-)OO(ll
v.
v.
u.
u.
v.
v.
v.
u.
v.
v.
v.
u
v.
u.
u.
v.
v.
u
u
INDEX
Full Court Reference held in the High Court of Kerala on
30th September,2011 to bid Farewell to the Hon'ble Chief
Justice Mr. Justice Jasti Chelameswar
Full' Court Reference held in the High Court of Kerala on
25th October, 2011, on the occasion of retirement of Honourable
Mrs. Justice M. C. Hari Rani
Full Court Reference held in the High Court of Kerala on
8-11-20 11, on the occasion of the Swearing in Ceremony ofHon'ble Mr. Justice V. Chitambaresh, Hon'ble Mr. Justice
A. M. Shaffrque, Hon'ble Mr. Justice K. Harilal and Hon'ble
Mr. Justice K. Vinod Chandran
16tA2312011-ll
28-12-1 1 E
lv
Notifications
Kerala Co-operative Societies Employees Self Financing
Pension (Amendment) Scheme, 2011
Procedure to be foliowed for selection of candidates for
appointment as Principal Counsellor in the Family Courts in
the State
S.O. No. 2083 (E)
The Keraia Destruction of Records (Labour Courls) Ruies' 2011
ACTS
Central1860-Act 45 of 1860-Penal Code
Section 420 See
Section 497 See
1812-Act I of |872-Evidence Act
Sections 24 to 21 and 67 See
1881-Act 26 of l88l-Negotiable Instruments Act
Section i38 See
1882-Act 4 of 1882-Transfer of Property Act
Sections 19 and 2l See
1890-Act 8 of 1890-Guardians and Wards Act
Section 29 See
1894---Act 1 of 1894-Land Acquisition Act
Section 28A See
Section 18 See
1908-Act 5 of 1908-Code of Civil Procedure See
Section 92 See
Section 92 arid Order 1' Rule 10 See
Section 24 See
Section 24 (5) See
Order 21, Rule 105 See
Order 21, Rule 106 (3) See
Section 92 See
1923-.Act 8 of i923-Workmen's Compensation Act
Section a (1) (c) (ii) See
1947-Act 14 of |947-lndustrial Disputes Act
Section 1 lA See
Sections 33 (2) (b) and 33 (3) See
Section 33 (3) (b) See
E
Page
ut-vlvii
lJ{-x\4
4{n
88
n3
579
851
531
62124
7&9it
9t}
253
253
CIi
601
7&
9M
144
265
265
28-12-l I
1952-Act 19 of l952-Employees Provident Fund and
Miscellaneous Provision Act
Section 2 (f) See
1963-Act 38 of 1963-Major Port Trusts Act
Section 42 See
Sections 47A,61 and 62 See
1969-Act 18 of 1969-Registration of Births and Deaths Act
Section 7 (2) See
l97l-Act 70 of 197L-lontempt of Courts Act
Section 2 (c) See
Section 2(c)(i) to (iii) See
Section 13 See
1972-Act 69 of l912-larriage by Air Act
Schedule III, Rule 21 (1) See
1973-Act 2 of 1974-1ode of Criminal Procedure
Sections 4 and 188 See
Section 438 See
Section 438 See
Section 439 See
Section 372 See
Sections 372 Proviso and 401 (4) See
Sections 191 and 239 See
Sections 311 and 313 See
Section 24 See
Section 25A See
" Section 397 See
Sections 431 and 439 See
1974-Act 52 of |974-Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act
Section 3 (1) See
1978-Act 43 of 1978-Prize Chits and Money
Circulation Scheme (Banning) Act
Section 6 See
198l-Act 14 of 198I-AIR (Prevention and Control ofPoliution) Act
Section 43 See
16182312011-lla
28- l2-1 I
Page
898
n1277
1
4s3
453
453
4
"t9
79, 88
%
261
)23
3n550
598
634
634
851
ul
r008
568
869
trl
V1
1984-Act 66 of 1984-Family Courts Act
SectionT(1), ExPlanation(d) See
Sections 20and2l See
Section l4 See
SectionT See
1984-Act 3 of 1984-Prevention of Damages to Public
ProPertY Act See
1985-Act 61 of 1985-Narcotic Drugs and Psychotropic
Substances Act
Sections 42 and 43 See
Sections 41,42,51 and 67 See
Section 54 See
198G-Act 68 of 1986--Consumer Protection Act
Section 2 G) (1) (ix) See
1986-Act 25 of 1986-Muslim Woman (Protection of
Rights on Divorce) Act
Section 3 See
1987-Act 39 of i987-Legal Services Authorities Act
Sections 20 (l), 2l and25 See
Section 21 See
1988-Act 59 of 1988-Motor Vehicles Act
Section 163A See
Section 163A (1) See
Second Schedule See
Section i63A, 166 and Second Schedule See
Sections 163A and 166 See
Section 163A See
Section 166 See
Section 2 (37) See
Sections 163A, 166 and Clause 6(a) and 6(b) of
Second Schedule See
Section 166 See
Clause 6(b) and Second Schedule See
Sections 140' 147,163,4' and 165 See
Section 163A (1), ExPlanation See
Section 171 See
Section 1634 See
Section 1634.(1) See
Section 163A and Second Schedule' Ciause 5
Page
119
306
528
&9
841
26s79
579
30r
'198
830
807
17
t7
t7
l'7
17
113
231
311
ffi($ffi144
7482r
W9M
W
@
See
28-12-l I
vll
1995-Act 43 of 1995-Wakf Act
Section 32 See
Section 69 See
199 6- Act 26of 1 996-Arbitration and Conciliation Act
Section 9 See
Section 34 See
Section I 1 See
Section 16 (1) (a) and (b) See
Sections 9 and 37(1) (a) See
1 99G-English Arbihation Act
Section 70 (2) See
2002-i\ct54of2})2-securitisationandReconstructionofFinancialAssetsandEnforcementofSecuritylnterestAct See
Sections 13 (a) and 17 See
2005-Act 22 of 2005-Right to Information Act
Sections 18, 19 and 20 See
Kerala
1959-Actl0of196G_CourtFeesandSuitsValuationActSection 69 See
1965-Act2of1965-Buildings(LeaseandRentControl)ActSection 12 (3) See
1975-Act 7 of l9l5-Buildings Tax Act
Section 3 (b) See
1978-Act 20 of l980--Headload Workers Act
Section 2 (m) See
1994-Act 13 of 19921--Panchayat Raj Act See
1994-Act 20 of l994-Municipalify Act
Sections 390 and 391 See
1999-Act 8 of 1999-Lok AYukta Act
Section 7 (3) and Section 7 (l) and (2)
Sections 2 (a) and 7 (3) See
Sections 2 (a) (b) and (h), 7(3), 7(l) and (2) See
1997-Arbitration and Conciliation (Court) Rules, 1997
Rule g See 450
Rule 11 See 912
1997-Mahatma Gandhi University Statutes
chapter 3, Statute 7 (1) (a) See .. 6%
t4 28-12-1 t
tx Page
AIR (Prevention and Control of Pollution) Act, l98l (Central Act 14 of 1981)-Section 43-Wltere in a private complain.t, the Magistrate has Jbund the
existence of a prima facie case with respect to the violation imputedunder the provisions of AIR (Prevention and Control of Pollution)Act, which mandates imprisonment for a term exceeding 2 years,Magistrate should follow the procedure prescribed under Chapter XIX,Part B of the Code of Criminal Procedure-The Magistrate can dischargethe accused only as per the provisions contained in Section 246 of the
Code-Code of Criminal Procedure, 1973 (Central Act 2 of 1974)-Section 246.
N{/s Philips Carbon Black Ltd. v. Sabu Thozhuppadan I.L.R.2011 (4)
Kerala 869
Aliyasanthana Act,1949 (Madras Act IX of l949fSection 36(6)-Partition ofKutumba property-Principles to be followed while interpreting documentexecuted by members of the family concerning disposition of familyproperty.
Shankara Rai u Thimmanna Rai I.L.R. 20ll (4) Kerala 436
Aliyasanthanam Law-Essentials of Aliyasanthanam Law and similarities withMarumakkathayam Law explained.
Shankara Rai v Thimmanna Rai I.L.R. 2011 (4) Kerala 436
Arbitration and Conciliation Act, 1996 (Central Act 26 of 1996)-Section 9-l4/hen the opposite party in a petition under Section 9 disputes theexistence of the arbitration agreement, the court must necessarily decidewhether there is such an agreement which is valid in law-Burden to
show existence of the agreement is on the applicant.
IWs Shastha Enterprises v. IWs Olam Intemational Ltd. LL.R.201l (4)Kerala .. 334
Arbitration and Conciliation Act, 1996 (Central Act 26 of 1996)-Section 34-Even if there is an exclusion of Section 34 in an international commercialarbitration, the party can approach the cottrt under Section 34and impugn the award on the ground of public policy.
M/s ShasthaEnterprises v. IWs Olam Intemational Ltd. I.L.R.2011 (4)
Kerala 334
Arbitration and Conciliation Act 1996 (Central Act 26 of 1996)r-Section Il-If,the existence of a valid arbitration agreement is disputed, in a petition
filed under Section Il, the Chief Justice/designate will have to decide thequestion regarding existence of the agreement, the same being a
iurisdictional .fact.
IWs Reva Electric Car Co. (P) Ltd. v. IWs Green Mobil (S.C.) I.L.R. 2011 (4)
Kerala 705
28-t2-11 tr{
Arbitration and conciliation Act, 1996 (Central Act 26 of 1996)-section I6(l)(a) and (b)-section l6(l)(a) presumes the existence of a
valid arbitration clause and mandates the same to be trealed as'an
agreement independent of the other terms of the contract-By virtue ofSection l6(l)(b) the arbitration clause continues to be enforceable
notwithstanding expiry of the contract period or declaration of the
contract as null and void.
IWs Reva Elecfic Car Co. (P) Ltd. v. Ivf/s Green Mobil (S.C.) l.L.R. 2011 (4)
Kerala
Arbitration and Conciliation Act, 1996 (Central Act 26 of L996)-Sections 9
anel 37(l)(a)-If an interim order of interim measure of protection passed by
the Civit Court pending disposal of a petition under Section 9 of the Act
is of such a nature that it partakes the character of a final order,
rendering the apprehended danger or the adverse consequences imminent,
such interim order would be appealable under Section 37(l)(a) of the AcL
Muthukoya Thoopiyakal v. Union Tenitory of Lakshadweep I.L.R. 2011 (4)
Kerala
Arbitration and Conciliation (Court) Rules, 1997 (KeralafRule 9-Executing
Court cannot direct decree-holder to pay balance stamp duty inqccordance with Kerala Stamp Act on the award passed, by an arbitrator,
outside Kerala-Stamp Act, 1959(Kerala Act 17 of 1959).
IWs Maharashtra Apex Corporation Ltd. v. Balaji, G. I'L.R.2011 (4)
Kerala
Arbitration and Conciliation (Court) Rules, 1997 (KeralalRule Il-Power to
grant an ad interim meesure of protection to the applicant in deserving
cases cannot be denied to the Civil Court which has all the ancillary
powers to do so.
Muthukoya Thoopiyakal v. UnionTerritory of Lakshadweep I.L.R. 2011 (4)
Kerala
Buitdings (Lease and Rent control) Act, 1965 (Kerala Act 2 of 1965)-Section t 2(3)-Financial dfficulty of the tenant can be accepted as a
sfficient cause for averting summaty eviction under section I2(3)-Such
dfficulty must be one whifh wc$ not in contemplation of the tenant at the
time of fiting the Rent Control Petition or at the time when the rent was
. demanded-Court should consider whether such dfficulty has arisen on
account of any pressing need requiring diversion offunds'
James Punnapuzha v. Sabitha Rahim l.L.R. 2011 (4) Kerala
Page
705
9t2
450
912
M
trl 28-12-11
xi
Page
Buitdings Tax Act, 1975 (Kerala Act 7 of 1975)-Section 3(b)-Exemption frompayment of Building Tax-Medical College Hospital is primarily meant forrendering medical aid to patients-Exentption from payment of Building
Tax can be claimed only f medical aid is provided free of charge to the
patients.
Jubilee Mission Medical College and Research Institute v. Government ofKerala I.L.R. 2011 (4) Kerala ns
Carriage by Air Act,1972 (Central Act 69 of '1972)-Schedule III, Rule 2l(l)-Liability of the carrier to pay damages for loss suffered on accottnt ofdeath or injury of a passenger in an air accident is unlimited, but the
claimant should prove the damages suffered as in any other case oftortious liability-No minimum compensation is payable by the carrierunder the Act or Rules.
National Aviation Company of India Ltd. v. Abdui Salam I.L.R. 20ll (4)
Kerala
Civil Law-Dffirences between ioint Will and mutual lhll-Explained-A joint
Will is a single testamentary instrument constituting or containing the
Will of two or more persons based on an agreement to make a conjoint
Will-lf the joint l4/ill is executed in pursuance of an agreement orcontract between the executants to dispose of their property to each
other or to a third party in a particular mode or manner and reciprocal
in their provisions, it is a joint and mutual Will-lt is to emphasise and
denote the contractual elements which distinguishes it from a joint Will
and it is described as "mutual" or "reciprocal".
Narayani v. Sreedharan I.L.R. 20ll (4) Kerala
Civil Law-Trust and Endowment-Explained-A trust includes endowments forreligious and charitable purposes-Even though an endowment is
distinguishabte from a trust, the element of "trust" is embedded even in
private religious or charitable endowments-Section 92 is attracted only
in respect of suits pertaining to public trusts-Code of Civil Procedure,
190B (Cental Act 5 of 19?8)-Section 92.
St. Peter's Orthodox Syrian Church v. Fr. Abraham Mathews I.L.R.20Il (4)
" Kerala
Code of Civil Procedure, 1908 (Central Act 5 of l908)-Section 92-Procedure to
be followed by the court when all or the surviving plaintiff opted out ofthe suit or died and no other person having an interest in the trust hqs
come forward to continue with the siit.
Sree Ramananda Asram v. Asokan, P. I.L.R. Z0l1 (4) Kerala
16182312011-lll
28-12-11
400
7ffi
98
an
xii
Page
Code of Civil Procedure, 1908 (CentralAct 5 of l909)-Section 92 and Order l,Rule l}-History of the provision traced-Leave of the court is required
only for validly instituting the suit-Once the suit is validly instituted, it is
a suit brought by and on behalf of the public who have an interest in the
trust, though all of them do not actually join in the plaint-The question
of abatement or failure of the suit does not arise for the reason that the
other plainliff died or opted out of the suit-Any person who has interest
in the tnrst can come on record as additional plaintiff and for that he is
not required to obtain leave of court under Section 92.
Sree Ramananda Asram v. Asokan, P. I.L.R. 20ll (4) Kerala 98
Code of Civil Procedure, 1908 (Central Act 5 of 1908)-Section 24-It is v'ithin
the powers of the High Court and the District Court to transfer a case
from a court having no jurisdiction to a court having jurisdiction-A petition under Section 34 of the Arbitration and Conciliation Act is a"proceedings" as understood in Section 24 of the Code of CivilProcedure-Arbitration and Conciliation Act, 1966 (Central Act 26
of 1966)-Section 34.
Phoulad, K. u. Bharath Sanchar Nigam Limited I.L.R. 2011 (4) Kerala
Code of Civil Procedure, 1908 (Central Act 5 of 1908)-Section 24(5)-Merely
for the reason that the expression "withdraw" is not mentioned in
Section 24(5), it cannot be contended that District Court has no power to
**ithdraw the suit or other proceedings from a court having no
jurisdiction to itself and try or dispose off the same.
Phoulad, K. v. Bharath Sanchar Nigam Limited I.L.R. 2011 (4) Kerala
Code of Civil Procedure, 1908 (Central Act 5 of 1908)-Order 21, Rule 105-Order passed by Court in the absence of party who failed to appear on
receipt of notice-Such party can participate in further proceeding in the
execution petition on matters not concluded by the earlier order.
Appu v. Surendra Swami, P. I.L.R. 2011 (4) Kerala
Code of Civil Procedure, 1908 (Central Act 5 of 1908)-Order 21, Rule 106 (3)-Period of limitation to set aside ex parte order-Period should be
reckoned from the date on which order was passed on the application in
the absence of the opposite pctrty, inspite of intimation abottt the
application.
2s3
253
601
60r
F8l
Appu v. Surendra Swami, P. I.L.R.2011 (4) Kerala
28-12-r1
xl11
Page
code of civil Procedure, 1908 (central Act 5 of 1908)-section 92-Leave of the
court is a condition precedent for the very institutian of the suit and suclt
leave cannot be given subsequent to the institution of the suit-If the case
falls under Section 92 and the suit is instituted for any of the reliefs
enumeratecl under clauses (a) to (h) of Section 92(l), Jhilure' to obtain
leave of the court before the institution of the suit, will go to the root of
the matter snd is a iurisdictional defect which cannot be cu'ed by a prtst
institutional leave granted by the court.
St. Peter'sorthodox Syrian church v. Fr. Abraham Mathews i.L.R.2011 (4)
Kerala
Code of Civil Procedure, 1908 (Central Act 5 of 1908)-Secllon 92-Merely
because the suit contains a declarato: relief, it will not toke the suit ottt
of the puniew section 92-Four conditions necessaty to satisfu section 92
are: (l) The trust must be for public purpose of a charitable or religious
nature (2) The plaint must allege a breach of such trust or seeks court's
direction for administration of the trust (3) The suit must not only be in
the interest of the ptaintiff individually but also in the interest of the
pubtic or the trust itself and (4) The retiefs sought must be one of the
reliefs mentioned in Section 92.
St. Peter's orthodox Syrian church v. Fr. Abraham Mathews I.L.R.2011 (4)
Kerala
Code of Civil Procedure, 1908 (Central Act 5 of lg0SlSection 92-The Churches
under the Malankara Orthodox Syrian Church are public trusts-There is
n.othing in the 1934 constitution to show that the entire body of
worshippers are excluded from the beneficiaries of the church and that the
beneficiaries are nol the worshippers but are only the parishiotters or Qre
still confinecl to the members of the parish assembly-St. Peter'.s Ortltodox
syrian Church, Puthencruz is a public and religious trust to which
Section 92 Code of Civil Procedure squarely applies'
St. Peter',s orthodox Syrian church v. Fr. Abraham Mathews I.L.R.2011 (4)
Kerala
Code of Civil Procedureo 1908 (Central Act 5 of 1908)-section 92-Wth effect
from 1-lt-1966, the District court and subordinate Courts in the state of
Kerala have concurrent iurisdiction to try and dispose off Suits under
Section 92 Code of Civil Procedure'
St. Peter'sorthodox Syrian church v. Fr. Abraham Mathews I.L.R.2011 (4)
Kerala
28-12-1 1
1ffi
1ffi
7&
7ffi
E
xlv Page
Code of Civil Procedure, 1908 (Central Act 5 of t908)-Malankara Orthodox
Syrian Church-Rift between the Catholicos and the Patriarch factionsanxong the Syrian Christians-The Court warns the warring factions that
the power of the court exercising iurisdiction under Section 92 Code ofCivil Procedure and the inherent power of the court in any otherjurisdiction to commit the subject-matter of discord to the custody of a
receiver, is a power potent enough to dispossess and disable both the
disputants of their right to administer the Church.
St. Peter'sOrthodox Syrian Church v. Fr. Abraham Mathews LL.R.2011 (4)
Kerala 1ffi
Code of Criminal Procedure, 1973 (Central Act 2 of 197 )-Sections 4
and 188-Tlte investigation of an offence punishable under the Indian
Penal Code and alleged to have been committed outside India by an
Indian Citizen does not require sanction of the Central Government.
Souda Beevi v. S.I. of Police, Pallickal Police Station l.L-R.2011 (4)
Kerala 79
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)-Section 438-A person who is not in India or who does not intend to visit India soon
cannot remqin abroad and move an application for anticipatory bail
before a Court in India.
Souda Beevi v. S.I. of Police, Pallickal Police Station I.L.R. 2011 (4)
Kerala 79
Code of Criminal Procedure, 1973 (Central Act 2 oI 1974)-Section 438-Crime
registered against Directors of a Construction Company, on the basis ofcomplaints alleging breach of trust and cheating filed by the customers-
Managing Director in his bqil application, offering to complete the work
of the building projects and requesting the court to monitor the
progress-The court dealing with bail applications cannot be expected to
monitor the activities in the matter of constructions of the dffirentprojects.
Saju, K. A. v. State of Kerala I.L.R. 2011 (4) Kerala 88
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)-section 438_
Obstruction and violence by accused on the ground that the politicalparty to which the accused belong had declared hartal on the day-Persons who are not interested in honouring the constitutionctl rights of
fettow citizens, are not entitled to aspire for any discretionary relief under
Section 438 Cr. PC.
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28-12-11
xv
Code of criminal Procedure, 1973 (Central Act 2 of 1974)*Section 439-Where
public property is destroyed in the guise of strike or protest, the value ofthe same or even more should be directed to be deposited by the accused
as a condition for granting bail-lf the accused are found not guilQ and
acquitted, they would be entitled to get refund of the amount deposited by
them-Prevention of Damage to Public Property Act, 1984 (Central
Act 3 of t984)-section 3(l).
Hemanth Kumar v. S. I. of Police I.L.R.2011 (4) Kerala
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)-Section 372-Proviso-The applicability of the proviso has to reckoned with reference
to the date of the Judgment rendered by the court and not the date ofincident which gave rise to the prosecution of the accused-Code ofCriminal Procedure (Amendment) Act, 2008 (Central Act 5 of 2009)-Section 2(wa)
Balakrishnan Master, T. v. Ramachandran Master, K' M. I.L.R. 20ll (4)
Kerala 323
Code of Criminal Procedure, 1973 (Central Act 2 of t97{)-Sections 372 Proviso
and 401(4)-lLhere a right of appeal is provided, a revision at the
instance of the de facto complainant is not entertainable.
Balakrishnan Master, T. v. Ramachandran Master, K. M. I.L.R.2}ll (4)
Kerala
Code of Criminal Procedure, 1973 (Central Act 2 of l974)-Prospective
operation of the proviso to Section 372 of the Code will not enable the
victim to prefer appeal where Judgment had been rendered prior to the
coming into force of the Amendment Act 5 of 2009 (31-12-2009)-In cqses
where Judgment is rendered on or after 3l-12-2009, the victim has a right
to prefer an appeal before the competent court to which an appeal
ordinarily lies in the event of conviction of the accused in such case.
Balakrishnan Master, T. v. Ramachandran Master' K. M. I.L.R.20ll (4)
Kerala
code of criminal Procedure, 1973 (Centrat Act 2 oI l974)-Sections 197
anct 239-At the time of considering the petition for discharge moved by
the accused claiming protection from prosecution under Section 197 Cr PC.,
the court has to examine whether the act or omission of the accused/
public servant has reasonable connection with the discharge of his
fficial duties.
Venkitachalam, K. R. v. State of Kerala I.L.R. 2011 (4) Kerala
Page
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323
323
550
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xvi
Code of Criminal Procedure, 1973 (Central Act 2 of L974)-sections 3llPage
and 3I3-Document ntarked after recording the statement of the accusedunder Section 313(l)(b)-Held to be improper since the document wasntarked without reopening the evidence-After closing the evidence, if thecourt finds a docttment relevant for the just decision of the case, the saiddocument can be marked, only after reopening the evidence and givingthe accused an opportunity to explain the said docuntent.
Ganesh Kumar, M. v. Sreedhara Shetty I.L.R. 2011 (4) Kerala 598
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)-section 24-Theappointment of the present incumbent as Public Prosecutor is not inviolation of Section 24(l) since his appointment has been approved bythe Judges of the High Corn"t on the administrative side-Government LawOfficers (Appointment and Conditions of Service) and Conduct of CasesRules, 1978 (Kerala)-Rule 5.
Thankappan, E. A. v. State of Kerala I.L.R. 2011 (4) Kerala 634
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)-Section 2SA-Challenge to the appointment of the Director General of prosecution-until the Government constitutes the Directorate in terms of section 25Aof CrPC., the Directorate constituted under previous orders issued by theGovernment, in exercise of powers under Article 162 of the Constitution ofIndia, can and should function-A Directorate under Section 25A ofCr.P.C. has to be constituted through specific order to be issued underSection 25A of the Cr.P.C.-Constitution of India-Article 162.
Thankappan, E. A. v. State of Kerala I.L.R. 2011 (4) Kerala
Code of Criminal Procedure, 1973 (Central Act 2 of 197 )-section 397-Sessions Court disposing off the appeal filed by the accused challenginghis conviction and sentence along with the revision filed by thecomplainant for enhancing the sentence-The accused can challenge thepropriety, legality and correctness of the enhancement of sentence in therevision filed by him assailing the appellate order-No separateproceedings was required at tlte instance of the accused to challenge theenhqncement of compensation awarded by the Sessions Court.
Samuel, T. v. Elsykutty Philip I.L.R. 2011 (4) Kerala 851
Code of Criminal Procedure, 1973.(Central Act 2 of L974J-sections 437and 439-The High Court or the Sessions Court may impose anycondition it considers necessaty, in the interest of justice, while grantingbail-Section 439 does not ntandate that the High Court or SessionsCourt should impose only those conditions which could be imposed underSection 437(3)-Prevention of Damages to Public Property Act, I9S4(Central Act 3 of 1984).
Hemachandran" M.T.@ Kamalesh v. Sub lnspector of Police I.L.R. 2011 (4)Kerala 841
634
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Conservation of Foreign Exchange and prevention of smuggling ActivitiesAct, 1974 (central Act 52 of 1974)-section 3(l)-Delay of more thanI0 years in execution of the detention order-There cen be no hard andfastrule that detenu would be entitled for relief on the ground of inortlinatedelay-Each case nxust be decided on the respective facts-lf the cJetentt
absconds and the authorities have a satisfoctory explanation as to wlrythe detenu could not be apprehended, despite taking all possible steps,then the delay in executing the detention order will not conxe to the rescueof the proposed detenu.
Alex C. Joseph v. Union of India I.L.R. 20ll (4) Kerala 1008
conservation of Foreign Exchange and prevention of smuggling ActivitiesAct' t974 (central Act 52 of r974)-section 3(r)-No person whochallenges the detention order at the pre execution stage has a legalright-The grounds mentioned in Gadiab case, 1992 Suppt. (t) S.C.C. 496,with regard to the challenge of detention order prior to tts execution isexhaustive as laid down in the Three Judges Bench decision in sayedTaher Bawamiya's case, (2000) 8 S.C.C. 630-Conflicting juclgmentrendered by a Bench of lesser strength cann.ot be the basis for ignoringthe binding precedent of the larger Bench.
Alex C. Joseph v. Union of India i.L.R. 20ll (4) Kerala l00g
conservation of Foreign Exchange and prevention of smuggling ActivitiesAct, 1974 (Central Act 52 of 1974)-section 3(r)-Detenu challenging theorder of detention before arrest-Detenu arrested during pendency of thewrit petition-The fact that the detenu was arrested during the pendencyof the writ petition may not by itsetf iustify treating the writ petition asinfruc tuo us- C o n s t i tu t i o n of Indi a-A r t i c t e 2 2 6.
Alex C. Joseph y. Union of India I.L.R. 20[ (4) Kerala 100g
Constitution of India-Article 37LA-Hereditary Trusteeship constitutes property,eligible for constitutional protection.
Bhanunni, A. c. @ Valluvanattukara Vallabha valiya Raja v. commissioner,HR & CE Department, Kozhikode I.L.R. 20l l (4) Kerala 43
constitution of India -Article
I4l-principles to befollowed by High Courts andsubordinate courts when confronted with conflicting decisions of the ApexCourt-High Court cannot refuse to foltow a binding decision of the SupremeCourt-Principle of Stare decisis explained.
Raman Gopi v. Kunjuraman Uthaman (F.8.) I.L.R. 20ll (4) Kerala 155
@28-12-1 I
Constitutionoflndia_.Article226_SetectionforL.P.G.Distributorship_Notification prou:fif ng 7o' award of marks to applicants having fixed deposit
of a minimu* o*o'in'' with a condition that the fixed deposit should be
ntaintained Jbr tltree months-Applicant tvithdrawing substantial portion of
the amount in deposit and re-depositing the same after 2 days' in ttiolation of
the terms of the;otirtcation-Disqualification of the applicant by the conlpany
is ProPer
Sahira Basheer v' Indian Oil Corporation Ltd' I'L'R' 201 I (4) Kerala
Constitution of lndia-Article 32-Home Departments and Dire'ctor General of
PoliceoftheStates/IJnionTerritoriestoensurethatatlectstonepolicefficer in every police station with aptitude is given appropriate training
and orientation and designated as Juvenire or Chird werfare officer to
handlethejuvenileorchildinco-ordinationwiththepolice-specialJuvenile police (Jnit comprising of all police officers designated as
Juvenileo'Cn'ftdW'yo'"O6""'tobecreatedineveryDistrictorCitytoco_ordinate and to upgrade the police treatment of iuveniles and the
chirdren-Juvenire Justice (care and protection of children) Act, 2000
(Central Act 56 of 2000)-section 63'
Sampurna Behura v. Union of India (s'c') l'L'R' 2011 (4) Kerala
Constitutionof|ndia-Article254-ThereisnoconflictbetweentheSecuritisationActandtheKeralaBuilding(Lease&RentControl)Act_Theyopefateindifferentfields_TheSecuritisationActisnotalaterlawwithrespecttothe same matter as that of the Rent Control Act-securitisation qnd
Reconstruction of Financiql Assets and Enforcement of security Interest
Act, 2002 (Central Act 54 of 2002)'
Pushpangadan, N' P' v' Federal Bank Ltd' (FB') l'L'R' 2011 (4) Kerala "
Constitutionoflndia-ArticleI65-AdvocateGeneralfortheState-AnAdvocate who ceased to be a Judge of the High Court' consequent on
his faiture to rcccept transfer b another High Court' is not disqualified
from being appointed as Advocate General'
Madhusoodhanan Nair' K' u State of Kerala i'L'R' 2011 (4) Kerala
constitution of India-.4r ticle 226-Act of vandalism and des_truction of public
property in the guise of protest-The authorities charged with enforcement
of law have a duty to fix responsibitity on the persons who organized
such protest'- 7o' in" pu'po'i of recotuping the damage caused to the
public prope:rty-The High Court -under
Article 226 of the Constitution has
o*pl" po*"" to assess' quantify and Jix liability for the loss caused to
the pubtic propert-v as well as tu recover the same-Preventiort of Damage
to Public f'op"'iy Act' 1984 (Central Act 3 of 1984)'
xvlllPage
ry
193
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381
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28-12-11
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Constitution of lndia-Aiticle 226-Compassionate Employment Scheme-Denial
of benefit under the Compassionate Employment Scheme due tosubseqttent change of nornts is nol proper-Beneficial schemes are to be
implentented as per the norms existing on the date of application.
Chairman-cum-Managing Director, BSNL rl' Tittin, P. I.L.R. 201i (4)
Kerala 319
Constitution of India-Article 226-*Vigilance Enquirlt-Allegation ofvictimization at the hands of the Chief Mini,ster who is also in-charge ofthe Vigilance and Anti Coftuption Bttreau-Accepting such a contention
would mean that no agency in the State worild be cowpetent to conduct
investigation so long as the present incumbent is in office-This is
against settled legal principles regarding the irtdependence enioyed by
the investigating ofJicer.
Arunkumaq V. A. r.: State of Kerala I.L.R. 2011 (4) Kerala 414
Constitution of India-,4rticle I9(l)(a)-Freedom of ,speech Vs. Contempt
jurisdiction-Contempt jurisdiction is a reasonable restriction on the
exercise of the right to speech, in order to meet contingencies ofi ntemperate criticism.
In Re M. V. Jayarajan I.L.R. 2011 (4) Kerala '. 453
Constitution of lndia-Article 165-The post o.f Advocate General is a unique
position conJbrred by the cortstitution and ihe State cannot appoint more
than one Advocate General,-There is nothing that bars the Government
from giving benefits similar to that of the Advocate General to the Public
Prosecutor as well.
Thankappan, E. A. r,. State of Kerala I'L.R. 2011 (4) Kerala
Constitution of India-lr ticte 226-lltrit cotu'ts will not interfere with the decision
of academic bodies with regard ta selection of canclidates for mannittg a
post in a (jniversity, unless the dccision is in vicslation oJ n statute or is
tainted by mala Jides or bias.
Dr. Mary Senteria v. Mahahna Gandhi tJniversity l.L"R' 2011 (4)
Keraia 6%
Page
634
Constitution of India-211 Schedule, List l, Eutry 52-The principle thttt nrcrket
forces deterntine prices of commodities is nat upplicable to lhe marketing
of peu.oleum prodr,rcts since petrol and diese! arc sold at controlled prices
/ixed b1, the \it marketing compttnies^-Petrolewn Rules. 2002 (central)-'
Rule 144 (1).
Basheer, M. M. v. State of Kemla I.L'R.2011 (41 Keraia
16182312011*lv
28-12-1 1
l-)l /
lfoS
Fage
Constitution af ltnrlia-Vl| Schedule, List I, Erttty 52 and Article 46-Existing
dealers of oil marketing companies, purticularly the outlets operated b.y
members of sc/ST comrnunily, hate a legat right to oppose incliscreet and
incliscriminate opening of retail outlets near the existing autlets by tlte oil
marketing companies-The oil tnarketing companies hLve to take into
ctccounl the neecl of a new outlet in an area by taking into account the
t,olume and sales in the existing otttlets.
Basheer, M. M. v. State of Kerala I.L.R. 20li (4) Kerala
Constitution of India-VII Schectute, List I, Entrv 52-The oil marketing
companies should constitute a high let'el iaint committee in the state to
hear ob.iections from existing operators against opening of new 'sites-fheobjection raised by the eristing retail outlets in rural areas, agctinst
opening of new outlets within 5 Kms., should be considered and disposed
off anct the decision communicated to tlte objeclor'
BasheeE M. M. i.'. State of Kerala I'L'R' 2011 (4) Kerala 617
Constitution of Tndia-Article 227-In order to recuse from hearing a motter, the
Judicial Officer is not bound to record his reasons-The recusal to hear
a case by a Judiciul officer cannot be the subiect-matter of scrutiny by a
court on ttte iudicial side or by the High Court on the administrative side'
Girish Babu, G v. High Court of Kerala I'L'R' 2011 (4) Kerala 817
Constitution of India-lrticte 227-The constitutional authority conferred on the
High Cottrt certu[nly obliges the ltigh Court trt protect Judicial Of/icers
ft"om ttnnecessary aclverse criticism-Code of Criminal Pracedure, 1973
(Central Act 2 of 1974)-Section 407'
Girish Babu, G. v. High Court of Kerala I'L'R' 2011 (4) Kerala 817
Constitution of India--4rticle 226-Pubtic Service Comntission--General
conditior.ts of notiJication--Itigh court cannot relasc the rigour of general
coneJitions in exercise of it's powers under Article 225'
Shaila, E. J. v. KPSC l.L.R. 2011 (4) Kerala %2
Constitution of India-,4r'ticle 22(5)--When the question of non application ofmind is being projected, the ansv)er to that conn.ot be given without
looking ot the quolity r,tf the allegation, since th.e ohject sought to be
achieved by the legislation is to pret'ent actittities which are detrimental
to national interest, inclutling ncrtional economy and security of the
state--Consert'utic.tn of Foreign Exchange ancl Prevention of Smuggling
Activities Act, 1974 (Central Act 52 of 1974)-Section 3'
Saiiyal Beevi v. State of Kerala l.L.R. 2011 (4) Kerala 1038
Constitution of India--Article 226--The plea as to **hetlter there is non
ctpplicaliott oJ'mind by the statLttory authorities can be an,swered only
after referrirxg to the basic fac:ts'
Saiiyal Beevi v. State of Kerala I'L'R' 20il (4) Kerala 1038
617
Dd28-12-l 1
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Page
Constitution of India-lrticle 226-The pristine principle of liberty aJ'theindividual applies on case to case basis, on Jacts, calling ^for cautiottsexercise of the discretionary jurisdictiott under Article 226 of theConstitution oJ' India-I(hen the free movement of a particttlar citizen orgroup of citizens is show,tt to be against the interest of the nation andcitizenry, if order o.f preventive detention is issued against such persons,no doctrine of liberty is bresched in term.s of the Constitution of India.
Saliyai Beevi v. State of Keraia I.L.R. 2AlI $) Kerala
Construction of Statutes-Tlte General Rule of Constmrction of a. Statute is not
- only to look at the words bttt also to look at the context, the collocntionand the object of such words relating to ^such mqtter utd interpret themeaning according to vthat would erppear to be the meaning intended tobe conveyed by the use of the word under the circu.ntstances.
Arunkumar, Vl A. u State of Keraia I.L.R. 2011 (4) Kerala
Consumer Protection Act, 1986 (Central Act 68 of 1986)-,,lection 2(r)(l)(i.r)-Lrnfair trade proctise-Offering insurance policlt t+,ithout disclosing thatinsured will hat'e to pa, tax in additiott to the insurance premittn,anxounts to unfnir trade practise-If the tax conxponent is ttot revealed tothe insured at the time of issuing the policy, Insurer cannot claim suchtax front the irsttred during term af the policy.
Ma,r New York Life Insurance Co. Ltd. y. Insurance OmbudsmanI.L.R. 20i i (4) Kerala 301
Contempt of Courts Act, 1971 (Central Act 70 of 1971)--Sectio,t 2(c)--Well-informed ttnd ill-infornted criticism-Wh&t e well-infurmed person.filllyconversant with the v;orking of the jtrdicial institutions sd7,s shottld be
viewed dffirently from a similcn' statement made by an ill-inforwed ormisinformed person.
In Re M. V. Jayarajan I.l..R. 2011 (4) Kerala 453
Contenrpt of Courts Act, 1971 (Central Act 70 of 197tr)-Se ction 2(c)--7'hequinte.ssence oJ contempt juri.gdiction is the r-tbstntction of or interferencewith the edntinistrtttion of justice.
In Re M. V Jayaraian i.L"R. 2011 (4) Keraia .. 453
Contempt of Courts Act, 1971 (Central Act 70 of 1971)-Section 2(ci(i)to (iii)-7b cottstitute criminsl cotrtelnpt, puhlication of the ntatter- or the
doing of the act sltould be aJ such nilture so es to fall under any oJ'
Clauses {i) to (iii) oJ'Sectiost 2(c)-*Alrhowgh Ciauses (i) ro (iii) ofSectian 2(c) describe three distinct species af "criminul cantempt", they-
are net mtttuallv exclusive.
In Re lr,{. V. Jayaraian l.L.R. 2011 (4) Kerala
1618232011-.lYa
28-12-1 1
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414
453
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Page
Contempt of Courts Act, 1971 (Central Act 70 of 1971)-.Section l3-There is no need to incorporate the ingredients'ofSection 13 either to the
petition or statenxent of allegations or in the charge-The charge need
only contain the necessaty factual particulars which constitute the offence.
In Re M. V. Jayarajan I.L.R. 201i (4) Kerala 453
Contempt Proceedings-Publication of the factum of contempt committed by the
contemnor by the media does not amount to ttn act of contempt.
(Kerala)-Paragraph I9 (1) (a)-The length of service which the pensioner
had, commencing from the date of joining the Contributory Provident Fundalone can be treated as service qualifyingfor pension as per the stipulations
contained in Clause (l)(a) of paragraph 19 of the Pension Scheme-Thethircl proviso to Clause (t)(a) of paragraph I9 of the Pension Scheme applies
only to those employees who were probationers at the time when the Pension
Scheme was implemented and on whose behalf the Contributory Provident
Fund contribution had not been remitted at the time of implementation of the
scheme.
Purushothaman, K. v. Keraia State Co-operative Employees' Pension
Board I.L.R. 2011(4) Kerala 125
Court Fees and Suits Valuation Ac! 1959 (Kerala Act 10 of 1960)-Section 69-In a case where the settlement is arrived, in court or outside the court, at
a time when the matter is pending before the Civil Court, Section 69 ofthe Kerala Court Fees and Suits Valuation Act will apply-Where the
dispute is settled before the Lok Adalat consequent on a reference either
under Section 20 of the Legal Services Authorities Act or underSection 89 of the Code of Civil Procedure, then Section 2l of the Legal
Set^vices Authorities Act shall govern the matter in relation to the refund ofcourt fee and such refund will htre to be made in the manner provided
uncler Section t6 of the Court Fees Act-Legal Services AuthoritiesAct, 1987 (Central Act 39 of 19\7)-Section 21.
Manilal Panicker, S. v. Titto Abraham I.L.R. 2011 (4) Kerala 830
Court Fees and Suits Valuation Act, 1959 (Kerala Act 10 of 1960)-Section 69-It is txot necessary .for the State Government to amend the Kerala CourtFees and Suits Valuation Act so as to enable a party who has paid the
courtfee, either in part or infull, to get refund in terms Section 2l of the
Manilal Panicker, S. v. Titto Abraham I.L.R. 2011 (4) Kerala 830
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Page
Education Rules, 1959 (Kerala)-Chapter XIV A, Rule 43-Right of promoteesunder Rule 43 will get precedence over protected teachers from schoolsunder other Educational Agencies-Second proviso to Rule 5lA givespreference only to protected teachers of the same Educational Agency andnot of other Educationctl Agencies-Rute 5l A.
Manager, P. K. High School v. State of Kerala I.L.R.2011 (4) Kerala..
Employees Provident Fund and Miscellaneous Provision Act, 1952 lCentralAct 19 of 1952)-Section 2(fl-Consultant doctors, who are only visitinghospitals and offering consultancy service to patients are not subject toany control whatsoever by the hospitals and do not come within thedefinition of employees-However regular doctors, employed full-time bythe hospitals snd described as consultants are employees of the hospital-The question as to whether the doctor is only a consultant or regularemployee should be the subject-matter of enquiry.
Employees Provident Fund Organization y. Employees provident FundAppellate Tribunal I.L.R. 2011 (4) Kerala
English Arbitration Act, 1996-Section 70 (2)-The embargo contained inSection 70(2) of the English Arbitrqtion Act would not prohibitconsideration of an application under section 34 of the Arbitration andConciliation Act, 1996.
IWs Shastha Enterprises v. IWs Olam International Ltd. I.L.R. Z0ll (4)Kerala
Evidence Act, 1872 (Central Act I of l872)-sections 24 to 27 and 67-Theexception under Section 27 against the prohibition contemplated underSectians 24, 25 and 26 is applicable and attracted, notwithstanding the
fact that the information or confession is recorded from a person after hisarresl or not.
Andichami @ Andiappan v. Sub Inspector of Police, PerinthalmannaI.L.R 2011 (4) Kerala
Family CourtsAct, 1984 (CentralAct 66 of 1984)-Section 7(l)-Exptanation (d)-[4/ife standing surety for loan taken by husband s brother-On default by theoriginal debtor (rmount recovered from the surety-surety filing suit befareFamily Court for realization of the amount from husbandb brother-As thewife had stood suree for husband's brother due to the compulsion of herhusband, the amount due from husbandb brother arose "in circumstancesarising out of a marital relationship" and is a dispute falling omderExplanation (d) of Section 7(l) of rhe Act.
Anil Kumar, K. B. v. Sheela, N. S.I.L.R. 2011(4) Kerala
28-12-l I
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898
334
119
579
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PageFamily Courts Act, 1984 (Central Act 66 of 1984)-sections 20 and 2l-The
ov-etiding effect of the Family Courts Act in terms of Section 20 of theCentral enoctntent u'ill override any prescription in the Cit,il Rules ofPractice which is itlcotlsistent with the prot,isians of the Famity Cou,tsAct-The Family Court (Procedure) Rules having been issued in exerciseof the statutory power contained in Section 2l of the F-amily Courts Act,the Rules w,ould also get protectian oJ'section 20 and u;ould thereforehave overriding effect over Civil Procedure Code to the extent of theintonsistency-Code of Civil Procedure, 1908 (Central Act 5 of 1908)-Section 12.
Jayarajan v. Sabitha I.L.R.2011 (4) Kerala 306
Family Courts Act, 1984 (Central Act 66 of 1984)-section l4- Rules in theEvidence Act goverting adnission of primary and seconclctry evidencewould be of guidance as tool qf fair procedure, only when it becomesnecessaty to apply such tool on the face of any challenge to the ntaterialproduced before the Family Court-ln the absence o/ any challenge as toadmissibility of a document, sttch document can be admitted in evidenceirrespectit,e of wheth.er it is primary evidence or secondary evidence.
Sithara v. Harikrishnan Nair I.L.R.2011 (4) Ke.rala
Family courts Act, 1984 (central Act 66 of 1984)-sectian 7-Jurisdiction ofthe Family Court-Enactment of Muslim Women (Frotection of Rights onDivarce) Act has not divested the Civil Court and consequently theFamily Court of its powers to entertain a suit filed by a Afuslim w.fe forreturn of gold ornaments and cash from her husband-Code of CivitProcedure, I90B (Central Act 5 of 19?8)-Section 9.
Sheeba Pulikkal v. Shoukath Ali I.L.R. 2011 (4) Kerala
Family Court (Procedure) Rules, 1989 (Kerala)-Rules l0 and i3*-Alt that isrequired to be prochtced alang with qn appeal under Section t9(l) of theFamily Court Act is the copy of the Judgment ceriified to be true copy bythe court which pas.sed the ,Iudgment-.There is no further requirementthat tlte appeal shattld be ctccompanied by a copy certiJied in terms ofRules 253 and/or 254 o.f the Civil Rules of Practice.--Cittil Rules ofPrsctice, I97l (Kerala)--Rules 253 and 254.
Jayarajan v. Sabitha I.L.R.. 2011 (4) Kerala
Government Law Officers (Appciintment and Conditions of Service)and Conduct of Cases Rules, 1978 (Kerala)-Rule 5(l)(a)_--NosigniJicance can be attached to the prqctice in the High Court for thepurpose. of appointment as Public Prosecutor be.cquse. essentiallt, thePublic Prosecutors are hanclling criminal cases and those hat,ing longpractice in the. criminal side heve the right experience to be appointed asPuhlic Prosecutor-Rule 5(1) is agetinst the provi.rions underSection 24(l) and (7) of the Cr.P.C:. qnci has no relevance with re.ferenceto the nature oJ'work ta be clone by the Public Prosecuktr.
'Ihankappan, E. A. r'. State of Kerala I.L.R.201i (4) Kerala 634
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PageGuardians and wards Act, 1890 (central Act 8 of 1890)-section 29-Alienation
of minor',s property v,ithotrt prior sanction of cou.rt-Natural gtta.rdianneed not get sanction of the court for alienating property of tlte ntinor-Re.strictian applies only to those guardians appointeel by Court or undera will or other instntment.
Jince Mary Johns v. Johny, K. P. I.L.R. 20lI (4) Kerala 531
Guardians and wards Act, 1890 (central Act 8 of 1890)-section 29--court cqngrant ex post facto sanction for alienation of minorb properg), if .such saleu'as.for the benefit of the minor
Jince Mary Johns v. Johny, K. P. I.L.R.2011 (4) Kerala 531
Headload workers Act, 1978 (Kerala Act 20 of 1980)-section 2(m)-Headloadworker-Unloading of two wheelers and three wheeler.s h); driving itdo--n the ramp, is not unloading work coming within p,r-view of the Act-Heutlload v;orkers car,not insist that they alone can do this work-suchwork can be undertaken by permanent workers of the employer.
Popular Motor corporation v. State of Kerala I.L.R.20li (4) Kerala .. 74
I{indu Religious and charitable Endowments Act, 1951 (N{aclras Act l9of l95l)-sections 2IA and 24-Hereditary Trustees of tentples coveretlb), the Act hat;e considerable liberty with regard to the administration ofthe temple-As long as the heredita,y trustee administer the temple as aman of ordinary prudence and utilizes the funds *-ith. due care andcaution, the Devaswont Board or its fficers have no right to interfere inthe affairs of tlte temple-Provisions of the Act clo not confer anyunfettered polrer on the Board or its officers to meddle with the affairs oftemples.
Bhanunni, l. c. (u valluvanaflukara vallabha valiya Raja r,. commissioner,I-{R & CE Deparlrnent, Kozhikode l.L.R. 20ll (4) Kerala 43
tlindu Religious and charitatrle Endowments Act, l95l (Madras Act 19of 1951)-section 45-The power conferred under Section 45 beingdrttstic in nature, ltas to be exercised in a reasonable ntanner and onlv inappropriate cases.
Bhanumi, A. c. @ Valiuvanattukara vallabha valiya Raja v. commissioler,HR & CE l)epartment, Kozhikode I.L.R. 20l l (4) Kerala . . 43
IndustrialDisputesAct,l94T (CentralAct 14 of 1947)-Section IIA--punishmentof compulsory retiren'tent imposed on a worker for the proven mi.sconduct ofttsing abusive language against a lady co-worker, cannot be termetl asshockingll, clisproportionate-Misplaced sympathy is ail evi!.
Regional Manager, Syndicate Bank i,. General Secretary Synclicate BankEmployees Union I.L.R. 201 I (4) Kerala V4
28-t2-1 1
L'a'j
xxvl
Industrial Disputes Act,1947 (Central Act 14 of L947)-sections 33(2)(b) and
33(3)-The violation, if any, to comply with the requirement under
Sections 33(2)(b) and 33(3) will not make the punishment imposed'Voidab initio' so as to enable tl'te workmen to claim the wages or such other
benefits-The only remedy available to the workmen for challenging the
order of discharge or dismissal is as provided under Section 33(A) and
Section l0 and he cannot nteintain an application under Section 33C (2).
Balakrishnan, P. v. Labour Court l.L.R. 2011 (4) Kerala
lndustrial Disputes Act, 1947 (Central Act 14 af 1947)-Section 33(3)(b)-"Protected workmen"-Mere submission of a list of "protected workmen"
by the trade union is not enough-The employer has to recognize the
concerned workmen as "protected worknten" and communicate the list ofsuch recognized warkmen to the registered trade union in writing with.in
I5 days-The tenure of such 'protected worlcmen' is for a period of l2months from the date of commwication oJ'the list of recognized workmen
by the employer-Industrial Disputes Rules, 1957 (Central)-Rule 6l and
Industrial Disputes Rules, 1954 (Kerala)-Rule 62.
Balakrishnan, P. v. Labour Court I.L.R. 2011 (4) Keraia
Industrial Disputes Rules, 1957 (Central)-Rule 62 (4)-"Protected worlcrnen"-In case of dispute, either by the inaction on the part of the employer orby refusing to recognize the workers named by the union as "protected
workmen", the remedy of the union is to approach the concernedconciliation fficer, who is to consider the position and pass an order,
which is to be final and binding.
Balakrishnan, P. v. Labour Court I.L.R. 2011 (4) Kerala
Kerala Co-operative Societies Employees Self Financing Pension Scheme, 1994
(Kerala)-Paragraph I9(l)(a)-Employees of a Co-operative Society,
who were on probation before introduction of the pension sclteme,
are not entitled to count their period of probation for computing the
qualifying service for pension-Sych persons are entitled to count tltequalifuing service for pension only fi'om the date on which they enrolled
in the pension scheme-7.lte employees, who were on probation as on the
date of commencement of the scheme, are entitled to couni the period ofprobation, to reckon their qualifying service for pension in the event the
employer has remitted contribution covering the period of probation.
Purushothaman, K. v. Kerala State Co-operative Employees'Pension
Board I.L.R. 201I (4) Kerala
265
Page
265
265
3F;Z
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Kerala University of Health Sciences Act, 2010 (Kerala Act 4 of 20ll)-Sectiotts 50 and 53-The University is not bottnd to grant ffiliation to
institutions just because tltel; have obtained sanction/approt,ttl from the
Centrel/State Council-As the primar.v- function of the Lrniversity is toguerantee quality educatiott, mainlain/regttlate acadentic standards of tlte
ffiliated institlttiotls, it is open -for the University to prescribe conditions
for recognition of the institutiotts.
Mar Gregorious Memorial Muthoot Medical Centre v. Keraia University
of Health and Allied Sciences I.L.R. 2011 (4) Kerala .. 685
Land Acquisition Act, 189,1 (Central Act I of 1894)-Section 28A-Applicationunder Section 2BA should be decide on the hasis of 4w-ard of the
Appettctte Court, if the award of the Reference Cotu"t has been modified
in appeal.
Kakkamkovval Easwara Varriar v. District Collector I.L.R. 2011 (4)
Kerala 62
Land Acquisition Act, 1894 (Central Act 1 of 1894)-Section l8--Ryotwaripattadar has the right to extract rocks above the ground on pa)'}ment ofroyalty to the Got,et'nment-On acquisition, pattadar is entitled to receive
contpensation for the rocks above ground level.
KSIDC v. District Collector l.L.R. 201i (4) Kerala
Legal Services Authorities Act, 1987 (Central Act 39 of 1987)-Sections 20(I), 2l and 25-The conjoint effect of Sections 2l and 25 ofthe Legal Services Authorities Act is that where a compromise orsettlement has been awived at by the Lok Adalat in a case referred to itunder Section 2(I), the fttll Courtfee, as provided in Section I6 oJ the
Manilal Panicker, S. v. Titto Abraharn I.l,.R. 2011 (4) Kerala 830
Legal Services Authorities Act, 1987 (Central Act 39 of 1987)-Section 2l-There is no restrictictn on the pov;er of the Lok Adalat to p(lss an cm;ard
based on the compromise arrived at between tlte parties, in respect ofcuse.s referred to it by a civil court or u criminal court-Eveni awcLrd ofthe Lok Adalat shall be deented to be a decree of a civil court and as
strch v;ottld be execrtable by that cow't-Av,ard passed by the Lok Adalat
based on the comprontise, in a matter falling under Section I3B of the
Negotiahle In,strtmrcnt,s Act, referred to the Adalat by a criminal court,
has to be treated as a decree copable of execution by n citil court.
Shaji, C. D. (S.C.) l.L.R. 2011 (4)
807
Govindan Kutty Menon. K. N. Y
Kerala
16182312011-V
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Lok Ayukta Act, 1999 (Kerala Act 8 of 1999)--Sections 2(a) and 7(3)-From
lhe unambigLtotts v'ords usetl in tlte stutute, it is clear that under
Sectiort 7(3) oJ'the Act the legislature intended to refer only cases
int,olving action as defned in sectiott 2(a), whiclt will not include. c'ases
u'here uctions involve allegation or griet'uttce.
Arunkumaq V. A. r: State of Kerala l.L.R' 2011 (4) Kerala
Lok Ayukta Act, 1999 (Kerala Act 8 of 1999)-Section 2(a)(b) antl (h.),
Section 7(3) ond Section 7(l) ttnd (2)-Section 7(l) and (2) takes in
only cases o.f'actiort of public sertlat'tts v,hich invol.ve allegtttion orgrievance a.s defined in Secti.on 2(b) and (h) rf the Act-'Tlte subject-tttatter
of reference under Section 7(3) of the Act catt only be the action oJ'a
pt.hlic sert,ant, tthiclt nteans thctt the actions should be in his cupacity as
a public servent or in the purported dischurge oJ his duties'
Amnlrumar, V. A. r,: State of Kerala IL.R. 2011 (4) Kerala 414
Lok Ayukta Act, 1999 (Kerala Act 8 of 1999)'-Section 2(o) (vii) (D)-The
emplol,ess of IHRD, which is a society registered under the Travancore
Cochin Literary, Scientifi<: & Charitqble Societies Act, 1955 under the
control of Goyernnrent of Kerala, would be public servonts -fbr the
purpose of'the Acl. onty i,f a notification is issued h.y the Government oJ'
Kerala in terms of Section 2@) A'ii) (D)'
Arunkumar, V. A. rz State of Kerala I'L.tt. 2011 (4) Kerala 'll4
Lok Ayukta Act, 1999 (Kerala Act 8 of L999)-"Section 7(3)*-IHRD noutotifiec!
in ternts i,tf Section 2(o) 6'ii)(D) at the tine rtJ'making reJbrence uttder
Section 7(3)-lf the initial reJbrence is w,ithout jtu"isclictiott, sttbsequent
natificatiort issttetl under Section 2(o) (vii)(D) x'ottlcl not rectify the
.funclamenta! tlefect in tlte inilial reference'
Amnkumar, V. A. u State of Kerala i.L"R. 2011 (4) Kelala " 414
Lok Ayukta Act, 1999 (Kerala Act 8 of 1999)-section 7(3) and Sedian 7(l)
and (2)*-In vieu; Qf the non oltstante clause cantainecl irt seclicsn 7(3) qf
the,4ct, Section 7(3) will hat,e. its ftill operation ttncl Section 7(l) ttnd (2)
vtill not be an impediment, for a re.ference being matle J'ar an
int,estigation-To int'ake Section 7(11 anrl (2) o.l the Act, the uction
complained aJ'should ctlso int'olve "grievance" or "allegation" whereus
Sectiotr 7(3) only requires an "action" trt make u tcference to the Lak
Avukte.
AlnTIA
. 414
23-12-1 1I fai
Arunkumar. V. A. u State of Kerala I.L'l?'. 2011 ('4) Kcrula
screening Cammittee constitutecl as pro,itieci Ltncler statute T(l){q o.[Chapter 3 is empov,ered to scrtttinize the applications for tleterrtirtingwhether the appliccrnts sati.srt, the eligibilit1t cr.itet ia for oppoitlthtent to the
20r r (4).. ovo
Major Port Trusts Act, 1963 (Central ,Act 38 of 1963)-Jections 47A, 6land 62-Cocltin Porf Tnts! cannot lct,y gt"<ttutcl rent.for nore tlzun Tsdays i11 respect of c:ontainer,s.
APL (india) Pvt. Ltd. y. Chairman, Cochi' port T*rst Lt..R. 201I (4)Kerala nj
Major Port Trusts Act. 1963 (central Act 38 of 1963)--,gection 42--prsrt Ttttstis legally obliged to hat,e the container,s shippec! rn tlesntfJed witltina reu.sonable lime.
Motor vehicles Act, 1988 (central Act 59 of l988)-s?:ctior.r l63A-The scheme r,t{'section l63A clearly shows that rhe very put.pose of its introclur:tian wa,sto avoid contetltious i.ssizes so that lhe process al'acljudication can bequickened.
National Insurance Cornpany l,td. v. Chacko, Ir. C. I.L.R. ZAll $)1'7Kerala
Motor vehicles Act, 1988 (cenfral .{ct 59 of l9B8)--scrtiort l5.Jti---r'ltt: r.rttnobslanle clsttse in section I63A nokes it cleur tltat tlrc liahilitl, htts ro lteunderstood ignoring the provisions oJ" all orher !cnu.y intltrc{ing theprot":isi)rrs of tht: Motor l'ehicles Act-'{lie Tsluin lctnguage o.f ,ser:tittn l53Aappears to ltrke in ctl/ v'lctittts af nwlor {tccide-ni v;helher tk<:t, itre insi.$e ororrtside" tlte velticle and does not oppl1, onlv io thirti ytartit:.t.
notified post.
Dr. Mary Senteria v. Mahatrna Gandhi University I.I_.RKerala
National Insurauce Companrv Ltd. r,. Chackrl. l). C. I.L.RKerala
20il (4}1:'
N{otor velricles Act, 1988 (centrat Act s9 af I9B8)-,Section l6jA---Secorttlschedule-c<;ntpensrttiort pr4:a.ble to pet'st:jn,, ,,t,hose incottte lit!r.: bt:ru,eei.tthe 2 entries sysecifietl in tlte Second Sc,hadule.--Explain.ecl"
National lnsurance llornoanv l.tr:1. rKerala
Chac;ko. l'. C. I.L.I'I. 2011 (4)I7
lllotor Vehicles Act, 1888 (ccntral Ar:t 5g of lg88) *,kctions 16.-t.1, itnd 16rt*,-tlncler Section |56 a.f the AcI negligetil:e ('ontirLu€.\' to he the..{*:infi;ttir.ttt at"f'
liuhility-llo\rerer rretiige;,tce is irrt:ievanr und necr! nur be;trr.tv'e{ in rtclaitrr uttder Sec:tlon 16,3A of the ,!ct"
28-t3-i r
National Insurance Corn;:ari}, i-tsl. 1,. Clucko" P C. 1.1..ft". 2{il l {4} Kerala l'l
XXX
N{otor Velricles Act, 1988 (Central Act 59 of l988)-Sections 163A and 166-Ina clttinr untler Section I63A negligence is irrelet'ant, conseqttentlyconlribtttorlt negligence must alsa be held to be absolutely irrelevant-Any legctl representative can sltstain a clainr under Section 166, w'hile
onl.v llle legal heir-s of the victim can,stt,stain the clairn underSection 163A.
National hsurance Company Ltd. r,. Chacko, P. C. LL.R. 2011 (4) Kerala
N{otor Vehicles Act, 1988 (Centnal Act 59 of 1988)-Sections l63A and 166-,4 clainront ntust decide v,ltether he wants to stake the cloim ttnderSection l63A or Sectictn 166 of Motor l/ehicles Act-A claimant can claint
a liglter anloLult wtder Section 166 of Motor Vehicles Act in v,ltich event
Ite tt,,il! have to establish negligence and the actual loss-Wlrcn it cotfles tothe claint uncler Sectiott l63A of the M.V. Act, the claimanl v;ill be
entitled to lhe fixed anloutrt in accordance with the Secottd Schedttlealone, whatet,er be the actual loss.
National Insurance Comllany Ltd. v. Chacko, P. C. I.L.R.2011 (4) Kerala
Motor Vehicles Act, 1988 (Central Act 59 of 1988)-,Section 163A(l)-Theexpres.sion 'compensalion' in tlte body of Section I63A(l) can only mean'amount'-It is impermissible to import the concept of actual loss suffered
by lke claimant nterel.y ft'om the use of the expression 'cotilperTsation' inSection I63A.
National Insumnce Company Ltd. r,. Chacko, P. C. I.L.R. 201i (4) Kerala
Motor Vehicles Act, 1988 (Central Act 59 of 1988)-Sections 163A, 166 and
Seconcl Scltedule-'fhe sclteme of I63A w'ould be lost iJ'tltere is no validSecond Schedule-In a claim under Section 156, tlte Second Schedule
can be used as a guide-Compensation in the case of deatlt can be
contputed untler Section 163.4 onlv by reference to the table/clnrt and not
[1; pressing into service the multiplierimultil;licand methctd.
National Insurance Ccrnpany Ltd. i,. Chacko, P. C. I.L.R.2011 (4) Kerala
N{otor Vehicles Act, 1988 (Central Act 59 of 1988)--Second Schedul<'-Manner
in which the compensotion hcLs to be conrptLted-Explained.
National Insumnce Company l-td. r'. Chacko, P. C. I.L.R.2011 (4) Kemla
Motor !'ehicles Act, 1988 (Central Act 59 of 1988)-Section I63A-In cases ofpernranent tlisablement, T'ribtunls cannot deduct I/3 of the omolult assessed
os conlpensetion pq;ahle for h-tss of earnings-In a c($e v'here, lo get the
incorne or to eant such income, the claimant has to incur expenditure i.n
connectiott v,ith his entployment, such expense,s for emplovme.nt unconnectecl
v,ith ordinarlt li/b can be deductedf'om the earnings.
Page
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. 113
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Nissam, K. S. v. Prernji Joy I.L.R.2011 (4) Kerala
xxxi
Motor vehicles Act, 1988 (central Act 59 of lggg)-.ge ction 166-Multipliercannot be cltosen, based on age of trte deceased arone-Icrentificatiin ofthe multiplier with reference to the tleceased alone can be ctonL onfu in Lcase where tlrc cktimants are younger to the cleceased ancl not in a casewhere the claimants are elder to the deceased and the clctimants haveonly a sltorter term of rife expectancy/depencrency than the expected rifespan of the deceased-The compensation fixed tmder section 166 shoutdnot at e,1v rate be lesser tltan the antouttt payabte under section 163 A.
Sumathikutry v. Manoj, N. I.L.R. 20ll (4) Kerala
Motor vehicles Act, 1988 (centrar Act 59 of rggg)-sectio,2 (37)-Transport vehicle-The status of transport vehicle tloes not depend on thetnanner of use of velticle at a gi'en point of time-Even if the t,ehicle isused for purposes other than for carriage of passengers, the driver shallpossess licence and badge.
New India Assurance company Ltd,. v. Barakrishnan I.L.R.20rl (4)Kerala
Motor vehicles Act, 1988 (central Acf 59 of lggg)-.sections 163A, 166 anctClause 6(a) of second Schedure-presumption incorporated in Crause 6(a)of the second schedure for the purpose of section I63A can be drawnwhen a claim under Section 166 is considered.
Krishnadas v. Henry Joseph I.L.R. 2011 (4) Kerala
Motor vehicles Act, 1988 (centrar Act 59 of lggg)-section 166-Even when thehome ntaker/spouse is not 'working and earning, in the conventionalsense, it will have to be accepted that it is the complinxentaty role playedby her which provides the atmosphere and opportunity foi the otlter to'w'ork and earn'-Need for appropriate regisration htgirighted.
Krishnadas v. Henry Joseph I.L.R. 20ll (4) Kerala
Motor vehicles Act, 1988 (centrar Act 59 of lggg)-sections 163 A, 166 andClarse 6(b) of second schedure-presumption nnder crause 6(b) of thesecond scheduled can be apptied to a craim tmder section r 66, onty i.fthe annual income of the deceased spouse cloes not exceecl < 1,20,000.
Krishnadas v. Heruy Joseph I.L.R. 20ll (4) Kerala
Motor vehicles Act, 1988 (central Act 59 of lggg)-c tause 6(b) of secortlScltedule-Pre.suntption under clause 6(b) would apply even in cases v,ereboth spouses had died in the same accident-Th-e- expression ,survivingspouse'in Clause 6(b) can only be read to mectn the'other spouse'.
Krishnadas v. Henry Joseph I.L.R. 20ll (4) Kerala
Motor vehicles Act, 1988 (central Act 59 of lggg)-sectionl66-D,eduuion ofl/3 of the antount can be made applicable to the case of the home makeralso, who is asswned to earr.r an income of 7 3,000 per month.
Krishnadas v. Henry Joseph I.L.R. 20il (4) Kerala
16/823t2011-Vt
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Moror Vehicles Act, 1988 (Central Act 59 of l988)-sections 140, 147, 163A and
165-The expression ,arisittg out of the use of vehicle,and ,arising out of
tlte use of ntotor vehicle' tnttst cover all cases of accidents connected with
the use of motor vehicles.
New IndiaAssurance Co. Ltd. r" Retnya I'L'R'2011 (4) Kerala 7M
Motor Vehicles Act, 1988 (Central Act 59 of 1988)-Section I63A (l),
Explanation-'Permanent clisability' ntentioned in the explanation to
Section 163A (1) refers to the partial and total disablement as deJined in
the Worknten's Compensation Act, 1923'
New India Assurance Co. Ltd' v' Remya I'L'R' 2011 (4) Kerala 14
Motor vehicles Act, 1988 (Central Act 59 of 1988)-section 17l-Tribunal cctn
direct payntent of interest at enhanced rate if the award amollnt is not
depositedwithintheperiodstipulatedintheav,ard-Stlchinterestshallbe awardecl only for the period subsequent to the time fixed in the award'
National lnsurance co. Ltd. r,. Moidu, M. K. I.L.R.2011 (4) Kerala 821
Motor Vehicles Act, 1988 (Central Act 59 of 1988)-sectian I63A-Tb ascertain
whether permanent total or partial disablement has resulted and also to
ascertain the extent of disability, what is crucial is not physical disability,
btu only the extent of reduction in earning capacity'
Babu, P. P. r'. Jacob K. Thomas I'L'R' 2011 (4) Kerala W
Motor Vehicles Act, 1988 (Centrat Act 59 of 1988)-,Section I63A(l)-The<permanent disability" referred to in the explanation actually refers to
and explains "permonent disablement" refeffed to in section I63A(l) of
theMotorVehiclesActandSection2(doftheWorkmen'sCompensationAct-Workmen,s Compensation Act, 1923 (Central Act 8 of ]923)-Section 2(g).
Babu, P. P. v. Jacob K. Thomas I'L'R' 2011 (4) Keraia
Motor Vehicles Act, 1988 (Central Act 59 of 1988)-section I63A and second
Schedule, Clattse 5-A clain for cotnpenscttion is maintainoble where
either permanent total disablement or pern'tanent partial disablement ltas
resultecl otl cLccount of the road trffic accident'
Babu, P. P. v. Jacob K. Thomas l'L'R' 201i (4) Kerala W
Motor Vehicles Rules, 1989 (Kerala)-Rule 6-Driver oJ'Autorikshaw not
authorised to dritte it-Lack of badge is not a fundantental breach of
N{unicipality Act, 1994 (Kerala Act 20 of L994)-sections 390 and 391-Application for buitding permit kept.pending for several months andrejected on the ground thal it is not in conformity with the amended
buitding fules-secretary of the Municipality is statulorily obliged to
either grant or refuse permission within 30 days to construct the
buitding-Rules amended after expiry of the statutory period of 30 days
from tie date of submission of application by the petitioner-Applicationis liable to considered in accordance with un-amended rttles.
Great India Estates Pvt. Ltd. v. State of Kerala I.L.R.2011 (4) Kerala 861
Muslim Woman (Protection of Rights on Divorce) Act, 1986 (Central Act 25
of 1986)-section 3-Divorced muslim wonxln is entitled to getntaintenance during iddat period-She is also entitled to claim reasonable
and fair provision during the period.
Chand Muhammed v. Zeenath I.L.R' 2011 (4) Kerala 798
Muslim woman (Protection of Rights on Divorce) Act, 1986 (Central Act 25
of 1986)-section 3-The divorced wife is entitled to interest on the
amount which she was entitled to get within the iddat period, but which
was unjustly denied to her.
Chand Muhammed v. Zeenath I.L.R.2011 (4) Kerala
Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61
of 1985)-sections 42 and 43-Though provisions of Sections 42 and 43
should be complied with in letter and spirit, that does not mean thatwhile complying with the requirements, the necessary things should be
done at the spot itself where the person concerned is intercepted-Provisions of Sections 42 and 43 cannot be construed in such a hypertechnical manner, which would have the effect of expecting something to
be performed, which is practically impossible of performance'
Ashraf, P. M. v. Senior Intelligence Officer, DRI I.L.R. 2011 (4) Kerala 24
Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 6lof 1985)-sections 41, 42, 5l and 67-The authority vested with an
fficea either under Sectiort 4l(2) or Section 42(2)' for the entry, seizure
and arrest is not confined to the contraband articles about v,hichinforntation was received-The investigating officer can sei;e any
contraband article of any description and any quantity in addition to the
one rnentioned in the infonnation already received.
Andichami @ Andiappan v. Sub Inspector of Police, Perinthalmanna
I.L.R 20ll (4) Kerala 519
Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61
of 1985)-section 54-Once the prosecution proves possession of the
contraband article with the accused, it is for the accused to give a proper
accourxt as to how he came in possession of the same-The possession
need not be actual physical possession, but can be constructivepossessiort.
Andichami @ AndiaPPan
I.L.R. 2011 (4) Kerala
28-12-1 I
798
v. Sub Inspector of Police, Perinthalmanna
579
Eq
Page
Negotiable lnstruments Act, 1881 (central Act 26 of 1881F{ection 138-plea ofdischarge-Report of the handwriting expert holding that the writings andsignattu"es in the receipt belonged to the complainant-The fact that thereport of the expert has been admitted in evidence and the exafuination oftlte expert is not uecessarv lo receive it as legal evidence is not sufficientto conclude tltat the document is a genuine instrument-Code of CriminalProcedure, 1973 (Central Act 2 of 1974)-Section 293(a).
Samuel, T. v. Elsykutly Philip I.L.R. 20ll (4) Kerala 851
Fanchayat Raj Act, 1994 (Kerala Act 13 of 1994)-Building constructedexpending { I0 crores, after obtaining permit f-om the Panchayat-Latera portiott of the properry in which the building is constructed found to bein purantboke land-Demolition of portion of the building in thepuramboke land v,ould reduce the structural stability, leading to completedestruction of tlte building-District Collector directed to assign thatportion of the encroached purantboke land to the building owner andGovernment directed to approve the unauthorized construction if thebuilding owner deposits an amount { 50 lakhs, to be utilized forconstruction of a ward for the Taluk Hospital.
Baiju, K. v. Govemment of India I.L.R.20ll (4) Kerala 609
Penal Code, 1860 (Central Act 45 of 1860)-Section 42}-Constuction of Flats/Buildings-Cheating of Public-Law makers urged to make laws toprotect the interests of unorganized, uninformed and helpless customerswho are duped after spending huge amounts for their dreant home.
Saju, K. A. v. State of Kerala I.L.R. 2011 (4) Kerala 88
Penal Code, 1860 (Central Act 45 of 1860)-Section 497-Only a man can beproceeded against and punished for the offence of adultery-A wornen hascomplete.immunity from the charge of adultery.
Kalyani v. State Tr. Inspector of Police (S.C.) I.L.R. 20ll (4) Kerala n3Petroleum Rules, 2002 (Central)-Private contpanies are free to open retail
outlets at any place of their choice in com.petition with outlets openedand maintained by the public sector oil marketing companies.
Basheer, M. M. v. State of Kerala I.L.R . 20ll (4) Kerala 617
Prevention of Damages to Public Property Acf 1984 (Central Act 3 of l984lThescheme of the Prevention of Damages to Public Property Act, whenconsidered along with Section 437 Cr. P.C. would make it clear thatrigorous approach is required ih the matter of imposing conditions forgrant of bail to those accused of committing offences under the Preventionof Damages to Public Property Act-A condition for deposit of the loss
' sustained by the Goyernment would be justified under Sections 437 and439 Cr. P.C.-Code of Criminal Procedure, 1973 (Central Act 2of 1974)-Sections 437 and 439.
Hemachandran, M.T. @ Kamalesh v. Sub Inspectorof Police t.L.R.2011 (4)Kerala 841
@ 28-12-t I
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Prevention of Food Adulteration Rules, 1955 (Central)-Rule 27-Appendix B-Prior to 29-ll-lggI, atl food grains were clubbed under one standard
namely A.18.06 of Appendix B to the rules-with effect from 29-Il-1991,
over and above A.18.06, separate standards were fixed for I3 items
of specific food grains including "{Jrd l4rhole".
Rajan, K. S. v. Food lnspector I.L.R. 20ll (4) Kerala " 539
prevention of Food Adulteration Rules, 1955 (Central)-Rule 27-"Talc" is not a
colouring agent or a pigntent so as to attract Rule 27 of the Rules-
since "talc" is not a permitted inorganic ntatter its presence, even if it isbelow \ok by weight is not pennissible-After 29-11-1991 "talc", which is
Magnesium Silicate, is not one of the permitted inorganic matter which
can be present as a foreign matter in food grains-Prevention ofFood Adulteration Rules, 1955 (Central)-Rule 27-Appendix B, A'18'06
to A.18.06.14.
Rajan, K. S. v. Food Inspector I.L.R.20ll (4) Kerala
prize chits and Money circulation Scheme (Banning) Act, 1978 (Central
Act 43 of 1978)-section 6-The fact that the company supplies products
while receiving money, by itself, would not take a scheme out of the
definition of "Money Circulation Scheme".
Dr. Harish Babu Maddineni v. State of Kerala LL.R.2011 (4) Kerala 568
539
Public Service Commission Rules of Procedure, 1976 (Kerala)-Eraminees
shoultl bring any of the identity proofs specifed by the Commission in the
halt ticket, while appearing for the written exantination-Any identity
card is not sfficient.
Krishnashri, B. v. K.P.S.C. I.L.R.2011 (4) Kerala
Registration of Births and Deaths Act, 1969 (Central Act 18 of 1969)-
Section 7(2)-section 7(2) consists of two parts-The first part obliges the
Registrar to enter information given to him under Section 8 or Section 9,
in the register maintained for the purpose of registration of births and
deaths-The second part directs that the Registrar shall also take steps to
iffirm hintsetf carefutty of every birth and of every death which takes
place in his jurisdiction-The operotion of the former limb of the section
is not restricted to the area within the jurisdiction of the Registrar.
Secretary Paippad Grama Panchayath v. Tessy P. Das I.L.R' 2011 (4)
.. IKerala
2s-12-1' E.l]
619
XXXVi
Page
Right to Information Act, 2005 (Central Act 22 of 2005)-sections l8' I9and 2T-sections IB and 19 of the Act sen)e two dffirent purposes and lay
down tw,o clffirent procedures ancl provide two dffirent remedies-I44tile
entertaining a complaittt under section 18, the central Information
Contntission or the itate htformation Comrnission, as the case may be, has
nojurisdictiontopo,,',orderprovidingaccesstothe.inforntationwhiclt hacl been de)tied b1t the Inforntcttion Officer-The only order tltat
can be passecl is an orde'r of penal4t as provided under Section 2}-Tlteremedyofaperson,whohasbeenrefusedtheinformatiortsoughtforisprovided under Section 19.
Chief Infonnation Commissioner, Manipur v. State of Manipur I'L'R' 2011 (4)
Kerala 885
Securitisation and Reconstruction of Financial Assets and Enforcement of
SecuritylnterestAct,2002(CentratAct54of2OO2)-sectionsl3(4)and]7-Atenctntwhoseright,title,interestorpossessionisaffectedbyameasltre taken under secion 13G) of the securitisation Act, would be
entitledtomakeanapplicati'ontotheDebtRecoveryTribunalunderSection I7 of the Securitisation AcL
Service-lla bitity to pay interest for delay itt disbursing gratuity-lt is the duty
of tlte appointini and conirolting authorities to see that the pension and
gratuity b7 "r'nr"y
retiring persoinel is sanctioned and paid intmediately
a"fter retirenturi-FoifurJ io do so has to be compensated by payntenl ofinterest which shorild be recovered from the employee responsible for the
delaY.
Union of India v. Aboobacker l'L'R' 2011 (4) Kerala 228
VA28-12-1r
xxxv11
service-Reservation in Ezhava community quota-If the candidate.fi.om thereserved community does not join service and if the rank list is stiil inforce, the Puhlic Service Commission can appoint the next candidate fromthe reserved list, tuithout violating the 50:50 rqtio as laid down in thedecision of the Supreme Court.
Sheeja, P. R. v. Secretary KPSC I.L.R. 20ll (4) Kerala
Service-.Selection to Got'ernntent service-Candidqtes included in the ranked listdo not ltave a right to insist that they should be appointed in accorclalcev;ith tlte recrttitnlent rules as on the date of pubtication of ranked list-Ifthe rules are amended during cttrrency of the li.st, v{tcctncy which aroieafter the amendntent should be filled up in accordance with the antendedrule.
Sajitha B. v. State of Kerala LL.R. 2011 (4) Kerala
Tort-*Good will of business-Concept of good will explained.
A1 shifa Super speciality Hospital for piles v. Al Shifa Hospital (p) Ltd.I.L.R. 20i I (4) Keraia
Tort-Infringernent and passing off*Distinction between action for infringementof copyright and for passing off explained.
Al shifa Super Speciality Hospital for piles v. Al Shifa Hospital (p) Ltd.I.L.R. 2011 (4) Kerala
Tort-Passing off-An action for passing off seeks to protect the good will anclreputation of the plaintiff-In such an action ptaintiff should prove that hehas established a commercial reputation distinctively attached to hisgoods or sen,ice.
Al Shifa super speciality Hospital for piles v. Al Shifa Hospital (p) Ltd.I.L.R 2011 (4) Kerala
Tort-Passing off-The essentials ancl basis of the tort of passing off explained.Al shifa Super Speciality Hospital for piles v. A1 Shifa Hospital (p) Lrd.
I.L.R 201I (4) Kerala
Trade Mark-worcls which are generally descriptive or of cotnmon usctge cennotbe registered as trade mqrk unless it has acqtLired ct clistinctiveness so asto identfy it wilh a particular item of merchandise or service.
A1 shifa Super Speciality Hospital for piles v. Al Shifa Hospital (p) Lrd.I.L.R. 20ll (4) Kerala
Transfer of Property Act, 1882 (Central Act 4 of t882\-sections I9 ona zllProperty wlriclt belongs exclusiveb; to the executattts settled in favour ofanother by a docuntent, retaining the life interest of the executant in theproperty and providing that on his death the other would get absoluteright in the property-It cannot be said thctt there wes na transfer ofinterest in praesenti because of the retention o.f ltfe interest of theexecutant, as there w-as divesting of the right of the executarlt, excepthis life interest.
Narayani v. Sreedharan I.L.R. 2011 (4) Kerala
28-12-1 1
ml
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E27
927
954
w
E21
n7
m
E
XXXV111
Page
Wakf Act, 1995 (Central Act 43 of 1995)-Section 69-IVakf Board has no
power to review or recall its order.
Puthucode Juma-ath Committee v
Kerala
Abdul Rahiman, T. S. I.L.R.2011 (4)
n6
Wakf Act, 1995 (Central Act 43 of 1995)-Section 32-l/hile framing a scheme
for managentent of Wakfs, if it becomes necessary for the Wakf Board to
decide on the title of contestittg parties to administer the Wakfs and itsproperties, the Board ntay do so-Such decision of the Board is quasi-
judicial in nature and principles of natural justice should be compliedwith by the Board.
Puthucode Juma-ath Committee v. Abdul Rahiman, T. S. I.L.R.2011 (4), Kerala 976
Words and Phrases-Charity-Explained-Choritlt includes whatever thatproceeds front a sense of moral dttty or out of humane considerationstowards others, uninfluenced by one's own adttantage or pleasures-Achariry* is a gtft, for general public use, whiclt may extend to the poor as
well as the rich-It embraces all that is usually understood by the word"benevolence", "philanthropy", "good will" etc.
St. Peter's Orthodox Syrian Church v. Fr. Abraham Mathews I.L.R. 2011 (4)
Kerala 7ffi
Words and Phrases-Religion-Explained-A "religion" undoubtedly has itsbasis in a system of beliefs and doctrine which are regarded to be
conducive to their spiritual v,ell-being by those who profess the religion-A religion is not merely an opinion, doctrine or belief-It has outward
expression in acts as well.
St. Peter's Orthodox Syrian Church v. Fr. Abraham Mathews I.L.R. 2011 (4)
Kerala 1ffi
Workmen's Compensation Act, 1923 (Central Act 8 of 1923)-Section a(1)(c)(ii)-If there is a competent ctssessment by a qualifiedmedical practitioner, such assessmettt of tlte extent of permanent partialdisablentent can be accepted by the Tribunal-Motor Vehicles Act, 1988
(Central Act 59 of 1988)-Section 1634.
Babu, P. P. v. Jacob K. Thomas I.L.R.20i1 (4) Kerala W
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