28 Latest & Important Kerala High Court Judgments January 2019

Arbitration and Conciliation Act, 1996 - S. 34 (1) - National Highways Act, 1956 -  Ss. 3G(5) & 3J - What is the remedy of the appellant to redress his grievance regarding inadequate compensation granted for the land acquired - The court cannot correct errors of the arbitrators - It can only quash the award leaving the parties free to begin the arbitration again if it is desired. Udayakumar v. Project Director NHAI, V. Chitambaresh & R. Narayana Pisharadi, JJ. Arb.A. No.68 of 2015 21-01-2019

National Highways Act, 1956 - Arbitration and Conciliation Act, 1996 - Section 34 – Application for setting aside arbitral award - Claim for Enhancement of Compensation - When the award of an arbitrator appointed under the National Highways Act is challenged in an application filed under Section 34(1) of the Arbitration Act, the power of the court to interfere with such award is very limited. Ramdas M.R. v. National Highway Authority of India, Arb.A. No. 28 of 2016 16-01-2019

Arbitration and Conciliation Act, 1996 - S. 28 (2) - Civil P.C. 1908 - O. XVIII R. 18 - Power of the Civil Courts to Inspect - An arbitrator, who conducts local inspection, commits no illegality. S. Dinesh Babu v. C. Venugopalan http://bit.ly/ArbA31of2007 15-01-2019

Mediation Agreement - It is not a blind reading or mechanical adherence that is called for while comprehending or interpreting conditions or clauses in a mediation agreement. The stipulations in a mediation agreement are to be comprehended and construed in such a manner as giving effect to the true spirit of the consensus arrived between parties to the agreement. Once mediation agreement is found to be lawfully and voluntarily executed, any interpretation that does not help to promote or foster the ultimate object or goal of the settlement requires only to be discarded. The attempt shall always be to effectuate the true spirit of what the parties thought and intended to bring about by having the disputes compromised. In other words, the terms of compromise agreement shall be understood in the broad background in which it was brought into existence by the parties. Any other interpretation will only be technical defeating the very purpose of process of mediation and also the result desired to be achieved by the parties who consented to settlement. Sabu Edward v. Santhosh, http://bit.ly/OPFC295of2018 15-01-2019

Family Courts Act, 1984 - S. 14 - Compact Disc (CD) produced before the Family Court is admissible in evidence, despite the fact that it was not certified. Pramod E.K. v. Louna V.C. bit.ly/OPFC513of2018 14-01-2019

Kerala Police Act, 2011 - S. 130 (2) - Police Complaints Authority - Since the rule making power is with the Government, the Government is perfectly competent to issue executive orders fixing the conditions of service including the tenure of the Chairperson and Members of the Authority. Thomas Pallickaprambil v. State of Kerala http://bit.ly/WPC41070of2018 10-01-2019

Arbitration and Conciliation Act, 1996 - Ss. 11(2) & 15 - Procedure for the appointment of a substitute arbitrator. Kurien George v. Renjith T. Mathew http://bit.ly/ArbA32of2018 10-01-2019

Civil P.C. 1908 – O. XXI R. 58 - the claim petitioner is entitled to first charge over the property and has every right to recover the arrears of debt by proceeding against the property. The decree holder in execution of the compromise decree can apply for sale of property subject only to the first charge in favour of the claim petitioner and without affecting its right. Nahala v. Adish, http://bit.ly/OPFC290of2018 07-01-2019

Airport Authority of India Act, 1994 - Guidelines governing the recruitment and promotion of its employees - Scales of pay, fitment formula and dearness allowance (DA) of the Non-executives. B. Rajendra Kumar v. Airport Authority of IndiaW.P. (C). No. 27283 of 2016 07-01-2019

Kerala Co-operative Societies Rules, 1969 - R. 35A (6) (e) (ii) Proviso - Nominations - Procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission - the copy of the resolution that has to be enclosed along with the nomination of the petitioner as a delegate of the member Society, with the signature of the petitioner, attested in the manner prescribed in Ext.P1 election notification, is an essential part of the nomination. The omission to submit a copy of the resolution in the prescribed manner is a substantial defect, which goes to the root of the matter. The said defect cannot be cured at the time of scrutiny of nominations and as such, the rejection of the petitioner's nomination based on Ext.P4 order of the 4th respondent Returning Officer is perfectly legal, which warrants no interference under Article 226 of the Constitution of India. P. Subair Kunju v. State Co-operative Election CommissionW.P. (C) No. 42517 of 2018 04-01-2019

Criminal P.C., 1973 - Ss. 437 & 482 - A bail once granted cannot be cancelled on the off chance or on mere suppositions. [Para 15] Raja Vijayaraghavan V., J. Jeri Cheriyan v. State of Kerala, 2019 (1) KLT 183 : 2019 (1) KHC 133 http://bit.ly/CrlMC8826of2018 21-12-2018

Constitution of India - Co-operative Bank – There are situations where President has locus standi to maintain the writ petition such as when the Managing Committee is sought to be superseded. Thelliyoor Service Co-operative Bank Ltd. No. A 361 v. State Co-operative Election Commission, 2019 (1) KLT 18 : 2019 (1) KHC 28 W.A. No. 2379 of 2018 20-12-2018

Kerala Police Act, 2011 - S. 63 - No discretion is vested in any of officers of police department, however high he may be, to decide as to which court order shall be enforced and which shall not be - An order of injunction, if violated, can be enforced by taking punitive action against contemnor under Order XXXIX Rule 2A CPC as well as by enforcement of order with the aid of Police by invoking Section 151 CPC. Johnson Kuriakose v. Fr. Thomas Paul Ramban, 2019 (1) KLT 6 : 2019 (1) KHC 31 http://bit.ly/OPC3147of2018 18-12-2018

Electricity Act, 1910 - S. 23( 2) – Regulations Relating to Conditions of Supply of Electrical Energy 1990 - Reg. 42(d) - Misuse of Energy - there must necessarily be use in excess of contracted load or a misuse by the consumer for which a higher tariff is applicable. Varghese v. State of Kerala, 2019 (1) KLT 1 W.A. No. 2276 of 2016 16-12-2018

Municipality Act, 1994 (Kerala) - When application for licence was preferred by the Managing Partner and the firm was the recognized tenant under the landlord, it cannot be said that consent letter from the landlord is required, in order to process tenant's application for renewal of trade licence. Babu C.S. v. C. Vijayan @ Raghavan, 2019 (1) KHC 25 W.A. No. 2426 of 2018 14-12-2018

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 - In view of the amendment of the provisions, the Magistrate has no jurisdiction to take cognizance for the offences under the SC/ST Act with effect from 26.1.2016. Baiju v. State of Kerala, 2019 (1) KLT 27 Crl. M.C. No. 8130 of 2018 11-12-2018

Kerala Co-operative Societies Act & Rules, 1969 - Kerala Co-operative Societies Rules 1969 (Kerala) - Inquiry or Inspection - prima facie allegations / doubts in the manner of conduct of the affairs of the society - Registrar can order inspection. Shamsudeen v. Registrar of Co operative Societies, 2019 (1) KLT 38 W.P. (C) No. 36025 of 2018 http://bit.ly/OPFC290of2018 07-12-2018

Kerala Panchayat Raj Act, 1994 - Kerala Panchayat Raj (Property Tax and Service Tax and Surcharge) Rules, 2011 - Classification of the entire area of the Panchayat into one single zone and the consequent tax collection - There is no compulsion made on the Panchayat to classify the area of Panchayat into different zones. Gopinathan S. v. State of Kerala, 2019 (1) KLT 29 : 2019 (1) KHC 18 W.P. (C) No. 22102 of 2015 03-12-2018

Muslim Women (Protection of Rights on Divorce) Act, 1986 - When entire value of gold ornaments were not paid in the earlier claim petition and the claim petition was closed, the claimant would still be entitled to proceed and realise the value of the balance gold ornaments. Nissamudeen v. Shyla Beegom, 2019 (1) KHC 22 Crl. M.C. No. 1768 of 2017 29-11-2018

Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 - Panchayat by itself has no power vested with it to transfer any property belonging to the Government. Abdurahiman Nagar Grama Panchayath v. District Medical Officer, Malappuram, 2019 (1) KHC 70 W.P. (C) No. 23877 of 2015 27-11-2018

Arbitration and Conciliation Act, 1996 - Rule 71 of the Rules of the Sree Narayana Dharma Paripalana Yogam,1999 which provides for resolving disputes arising between the members of the Yogam through arbitration, cannot constitute an 'arbitration agreement'. Sathyan M.S. v. Puthupallipuram SNDP Sakhayogam No. 219, 2019 (1) KHC 79 C.R.P. No. 219 of 2016 22-11-2018

Narcotic Drugs and Psychotropic Substances Act, 1985 - Anti Social Activities (Prevention) Act, 2007 (Kerala) - S. 3 - Power to make orders for detaining Known Goondas and Known Rowdies - four cases regarding the involvement of the detenu are in small quantity of contraband narcotics, whereas there is involved a large quantity in the case in which he had been acquitted - The fact that the crimes pending against the detenu were only of small quantity might have persuaded the government to release the detenu. Rafiya v. State of Kerala, 2019 (1) KHC 63 http://bit.ly/WPCrl316of2018 21-11-2018

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Statutory competence of a Chief Judicial Magistrate to act under the provisions of Section 14. Pouly @ Thressia v. Union of India, 2019 (1) KHC 75 W.P. (C) No. 36918 of 2018 15-11-2018

Constitution of India - Article 30 - Educational Institution - Admission - Right of minorities to establish and administer educational institutions- Whether the right of a minority community under Article 30(1) of the Constitution would entitle it to categorize its beneficiaries into different groups within the community itself, to reserve seats for admission to the institutions conducted by it on such basis and to admit students from such categories to the seats so reserved? Held, freedom is granted to the minority community only in the matter of choosing students belonging to their community, strictly maintaining the inter se merit among the candidates from the common pool. A further categorization within the community itself would give the institution a freedom to exclude a more meritorious candidate of the minority community and to choose a less meritorious one, which is not permissible - Insistence on production of community certificate issued by Revenue Officials, is proper. Safe Development Alms Trust (SDA Trust) v. State of Kerala, 2019 (1) KHC 1 W.P. (C) No. 22168 of 2018 31-10-2018

Civil P.C. 1908 - Plaint is amended adding additional reliefs or by adding additional properties - substantial change in the nature and character of suit by amendment - Compliance of requirement under Order I Rule 8(2) C.P.C. for the amended plaint - Mandatory. Vinod v. Vinitha, 2019 (1) KLT 25 O.P. (C) No. 2166 of 2016 16-10-2018

Kerala Abkari Act, 1077 - Abkari Officers alone have powers to investigate into abkari offences - There is no provision either in the Abkari Act or no notification was issued by the Government to confer jurisdiction to the Abkari Officers outside the jurisdictional limit. Viswan v. Sub Inspector of Police, 2019 (1) KLT 21 Crl.A. No.1760 of 2008 10-10-2018

Constitution of India - Art. 226 - Correction of Date of Birth in the Certificate issued from Kerala - C.B.S.E. School Certificate issued from U.P. – Jurisdiction to entertain the Writ Petition - Held, the very basis of the petitioner’s claim depends on proof regarding the correctness or otherwise of birth certificate which has been issued by the Registrar, who is situated within the territorial limits of the State of Kerala. Hence certainly a vital part of the cause of action in relation to the abovesaid grievance of the petitioner as disclosed in this Writ Petition has arisen within the territorial limits of this State. Brian Julious Roy v. Central Board of Secondary Education, 2019 (1) KLT 33 W.P. (C) No. 29893 of 2018 14-09-2018

Land Reforms Act, 1963 (Kerala) - Land under enquiry in connection with ceiling proceedings and said remark made in encumbrance certificate – Held, not proper. Varghese v. District Collector, 2019 (1) KHC 82 R.P. No. 673 of 2018 12-09-2018