Kerala Court September 2006 Judgments
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Marykutty Joseph Vs. State of Kerala
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT447
ORDERK.S. Radhakrishnan, J.1. Our considered view is that the following reference order passed by the Division Bench on 6.6.2006 does not satisfy the test laid down by the seven Judges Bench decision of this Court in Babu Premarajan v. Superintendent of Police 2000 (3) KLT 177 and the Full Bench decision of this Court in Cochin Malabar Estates and Industries v. State of Kerala 2002 (1) KLT 588. Reference order is extracted below for easy reference.We feel that substantial questions of law of general interpretation of the specific rules in the Kerala State and Subordinate Services Rules and the Kerala Education Service Rules arise in this Writ Appeal. The seniority and promotion initially awarded to the appellant later on had been set aside by the Government, and the challenge made has been repelled by a learned single Judge.Two issues arise for consideration, namely as to what is the meaning of the term date of occurrence of vacancy, i.e., whether it is the deemed occurrence of vacancy...
Balan Vs. State of Kerala
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT229
ORDERKurian Joseph, J.1. Whether it is necessary to pass final orders in the matter of reopening of a case under Section 85(9A) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act') in exercise of the power conferred on the Taluk Land Board under Section 85(9A), within a period of three years is the issue to be considered in this case.2. Kerala Land Reforms Act, 1963 is the pioneer legislation in the country which introduced two revolutionary concepts, one on the ceiling on holdings by the landlord and the other on the right of the cultivating tenant. The predecessor piece of legislation-the Kerala Agrarian Relations Act, 1960 and the present Act have been subject matter of several litigations before various courts leading to celebrated decisions on many constitutional aspects. Kesavananda v. State of Kerala : AIR1973SC1461 is one such decision. Whether the legislation fully achieved the laudable objects is a matter of history. But the iron-will of the legislature...
Peter Vs. Sara
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT219
ORDERKurian Joseph, J.1. 'Adherence to precedent should be the rule and not the exception' says Benjamin N. Cardozo, Associate Justice of the United States Supreme Court during 1932-38. 'The labour of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.... We have had ten judges, of whom only seven sit at a time. It happens again and again, where the question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time. The situation would, however, be intolerable if the weekly changes in the composition of the court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to stand by the errors of our brethren of the week before, whether we relish them or not.' [The Nature of the Judi...
Gopinathan Vs. Sivadasan
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT779
ORDERR. Basant, J.1. Is the presumption under Section 139 available to a payee? Is such presumption available only to a holder? Does a holder under Section 139 include a payee? These interesting questions are raised in this revision petition which is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.2. There are two cheques involved for the amounts of Rs. 2,50,000/- and Rs. 1,60,000/- both dated 15.6.1999. The petitioner now faces a sentence of S.I. for a period of one month. There is also a direction to pay an amount of Rs. 3,00,000/- as compensation. No default sentence is seen imposed.3. The signatures in the cheques are admitted. The notice of demand, Ext.P7, succeeded in evoidng Ext.P8 reply, in which the liability for payment was disputed. The complainant examined himself as PW1 and proved Exts.Pl to P10. The accused did not adduce any defence evidence - oral or documentary. In Ext.P8 reply notice and in th...
Ajas Vs. Registrar
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT819
K.M. Joseph, J.1. Petitioners challenge Exts.Pl(a) and Pl(b). They also challenge Ext.P7 seniority list. Petitioners were appointed as Assistant Grade II on 4.3.1999. Period of probation is prescribed as one year of duty within a continuous period of two years from the date on which they join duty. In order to being qualified as Assistant Grade I, the employee should pass Account Test Lower. Learned Counsel for the petitioners does not dispute that for declaration of probation pass in MOP is essential. Petitioners came to be promoted along with others vide Ext.P5 dated 2.9.2000. It is seen that petitioners are promoted with effect from 21.7.2000. Complaint of the petitioners would appear to be that the regular vacancies occurred from 29.10.1999 to 6.7.2000. Going by the rule prescribing period of probation, it is two years. Therefore it is contended that they have time till 2001 with reference to proviso to Rule 28(a) of the K.S.& S.S.R. It is their case that party respondents excludin...
Sathyan Vs. Yousu
Court: Kerala
Decided on: Sep-27-2006
Reported in: IV(2007)BC1; 2007CriLJ2590; 2006(4)KLT923
ORDERR. Basant, J.1. Does the criminal court have the power to direct payment of interest on the amount of compensation directed to be paid under Section 357(3) of the Cr.P.C? This interesting question arises for consideration in this Revision Petition which is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the N.I. Act.2. The cheque is for an amount of Rs. 25,000/- and bears the date 1.11.2004. Signature in the cheque is admitted. Notice of demand succeeded in evoking only Ext. P1 reply notice. No payment was made. The complainant examined himself as PW1 and proved Exts. P1 to P5. The accused did not adduce any oral evidence. He proved Exts. D1 & D2. The accused raised a plea that the cheque was not issued for the due discharge of any legally enforceable debt/liability; but was issued only as security in a transaction between the wife of the accused and the complainant.3. The courts below concurrently came to the conclusi...
Manjunath Tyre Retreaders Vs. State of Kerala
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT555; (2007)10VST173(Ker)
K.S. Radhakrishnan, J.1. These Revision Petitions arise out of a common order passed by the Sales Tax Appellate Tribunal, Addl. Bench, Kozhikode in T.A. Nos. 124 to 129 of 1998 and 171 of 2001. Assessment year relates to 1990-91 to 1996-97. Question involved is regarding the rate of tax applicable to the petitioner unit which carries on the business of retreading tyres. According to the assessee, the work undertaken by the assessee would fall under the residuary Entry 22 of the Fourth Schedule to the KGST Act. Consequently, the rate of tax that is applicable for the year 1990-91 is 5% and for the year 1996-97 is 6%. Assessing officer took the view that Entry 22 of Fourth Schedule is not applicable to tyre retreading works, but exigible to tax under Entry 112 of the First Schedule (now 123) since the transfer of goods is involved in the execution of works contract and for the materials transferred, that is, tread rubber, the rate of tax to be levied is 10%. According to the Assessing Au...
V.K. Soman Achari Vs. Sabu Jacob and anr.
Court: Kerala
Decided on: Sep-27-2006
Reported in: II(2007)BC628; [2007]135CompCas79(Ker); 2007CriLJ1042
V.K. Bali, C.J.1. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, came into being to amend the Negotiable Instruments Act, 1881, the Bankers' Books Evidence Act, 1891, and the Information Technology Act, 2000, for a purpose. One of the objects in bringing about the new legislation mentioned in the objects and reasons of the Act of 2002, was to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases. The speedy and summary remedy provided was for a purpose to expeditiously deal with matters under the Negotiable Instruments Act in a time bound manner. It is unfortunate that in some cases, as the one in hand, the entire purpose of the legislation has been defeated on procedural wrangles. Before introduction of the case, as a prelude in a drama and preface in a novel would be written, a period of fifteen years have already gone by. The parties to the litigation are at initial stage, as the case has not made any progre...
Sundaram Vs. Palakkad Municipality
Court: Kerala
Decided on: Sep-27-2006
Reported in: 2006(4)KLT657
V.K. Bali, C.J.1. The case has rather a checkered history. It has its roots from a notification issued under Section 4 of the Land Acquisition Act, 1894, hereinafter referred to as 'Act of 1894', on 7.1.1981. The land belonging to the appellant (petitioner in the original lis) and others was acquired for a public purpose, namely for construction of a Sports Stadium. The petitioner objected to the proposal of acquisition on variety of grounds, his primary objection being that his land was not required for stadium as large extent of land was available in and around the proposed area. The notification issued in 1981 was, however, not taken to its logical ends for long time and the petitioner in 1986 filed O.P.No.6498 of 1986 challenging the proposal to acquire his land. The Original Petition of the petitioner came up for hearing along with other connected matters and the same was dismissed vide order dated 9.2.1996. In the meanwhile, the notification under Section 4 of the Act lapsed. The...
Abdul Khader Vs. Catholic Syrian Bank
Court: Kerala
Decided on: Sep-27-2006
Reported in: III(2007)BC678; 2006(4)KLT1003
K.A. Abdul Gafoor, J.1. Admittedly by the Writ Petitioner he is the judgment debtor in Ext. P1 decree. He has approached this court with this Writ Petition seeking a declaration that Ext. P1 decree is a nullity. The basis for this contention is that Ext. P1 decree obtained by a scheduled bank is for a total amount of Rs. 15,60,740/-. This being an amount in excess of 10 lakhs, it should have been passed only by a Tribunal constituted in terms of Recovery of Debts Due to Banks and Financial institutions Act. Therefore, the civil court did not have, on the appointed day, namely 4.1-1.96, onwards, power to pass a decree like Ext. P1. Thus it is a nullity and cannot be therefore executed. To fortify this contention the decisions or the Apex Court in Allahabad Bank v. Canara Bank and Anr. AIR 2000 SC 1535 and of this Court in Glenny v. The Catholic Syrian Bank Ltd. 2003 (2) KLT 973 (F.B.) are relied on. Going by Section 17 of the Act only the Tribunal constituted under it alone did have jur...
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