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Wednesday 20 September 2017

who is the authority to decide on parking places under Section 344 of the Kerala Motor Vehicles Rules, 1989, framed under Section 117 of the Motor Vehicles Act, 1988. seek identification of a suitable parking place

. VINOD CHANDRAN, J. ===================== W.P.(C) No.31063 of 2014 - G ====================== Dated this the 10th day of February, 2015 J U D G M E N T

The petitioners have purchased Tata Iris Autorickshaws (Auto Taxi) and obtained contract carriage permits, as evidenced from Exts.P2 to P27. The grievance is that, despite the Secretary, Regional Transport Authority having specified parking place at Sultan Bathery, the petitioners are directed to park at a distant place called Manikunnu, wherein, except the Court Complex, there is absolutely no activity. The petitioners seek identification of a suitable parking place within the Sultan Bathery town itself. Though "Sultan Bathery" has been specified as the parking place, the petitioners are prevented from parking any where inside the town for reason of the objection of the 5th respondent.

2. The learned Government Pleader who appears  for respondents 1, 2 and 4 submits on instructions from the 4th respondent that, it is the Panchayath, who has arrived at a decision to permit the petitioners to park at Manikunnu. However, no order is said to have been communicated to the 4th respondent also.

3. In such circumstance, the writ petition itself was taken up and the petitioners' Counsel and learned Government Pleader were heard.

4. The issue with respect to parking of Auto taxies crop up intermittently all over the State; which is objected to by the Autorickshaw drivers. The Auto taxies are considerably of higher purchase value but have the same fares as Autorickshaws. Many of the persons, who purchase it, maintain it for eking out their livelihood by plying the same as a contract carriage. The Autorickshaws too are plied for the very same purpose and the Autorickshaws cannot be removed from the road on introduction of a newer model of Auto taxies nor can the  Auto taxies be interdicted from plying in the area where the Autorickshaws are plied. Both should adopt an attitude of "live and let live"; and endeavour to eke out a livelihood in the available circumstances and not by restricting operations of one or the other.

5. One other aspect which assumes significance is that when such restrictions are attempted, the authorities do not look at the convenience of the general public and are led by extraneous considerations. Auto taxies definitely is an improvisation on the Autorickshaws and is a more convenient mode of public transport. However, that is not to say that either of these should be elected to be restricted or allowed to be plied in exclusion of the other.

6. Again when such disputes arise, they come to this Court only since, the authorities under the various enactments as also the Local Self Government Institutions take a recalcitrant attitude and refuse to even attempt a conciliated settlement between the two parties. Herein,  despite notice being issued to the 3rd respondent, the Local Self Government Institution, none appear before this Court, for reasons best known to the 3rd respondent. The 5th respondent an Autorickshaw Co-ordination Committee, probably has not appeared, since, they are against the prayers sought for and can by their muscle power alone resist the claim of the petitioners. However, such a situation is not contemplated in a country where rule of law prevails. The Local Self Government Institution, the 3rd respondent also cannot abdicate its powers, statutorily conferred.

7. Notice having been served on the 3rd respondent, this Court definitely would issue directions to the 3rd respondent, who has to consider the application of the petitioners, produced at Ext.P30 in a reasonable manner after hearing the representatives of the petitioner and the representatives of the 5th respondent; and specify a parking place for the Auto taxies, even at the parking spot,  identified for Autorickshaws. The Local Self Government Institution and the RTA could also, with the help of the Station House Officer having jurisdiction over the particular parking area, insist on a system being maintained wherein, alternatively an Autorickshaw and Auto taxi is allowed to be rented/hired by the general public. However, what is required for such a measure is the will on the part of the authorities, which cannot be substituted by a mere direction from this Court.

8. In any event, for the present, the 3rd respondent after hearing the representatives of the petitioners and the 5th respondent would take a decision in the matter and intimate the decision to the RTA, who is the authority to decide on parking places under Section 344 of the Kerala Motor Vehicles Rules, 1989, framed under Section 117 of the Motor Vehicles Act, 1988. To facilitate such consideration by the RTA, "The RTA, Sultan Bathery, Wayanad" is suo motu impleaded as the additional 6th respondent. The Registry shall carry out impleadment before issuance of certified copies. The directions herein above shall be complied with by the 3rd respondent within a period of three months from the date of receipt of the certified copy of this judgment and the additional 6th respondent shall convene a meeting of the petitioners as also the representatives of the 5th respondent and arrive at a settlement as directed herein.

With the above directions, the writ petition would stand disposed of.

Sd/-

Tuesday 19 September 2017

Agreement to sell - Specific performance - Cuttings and interpolations

IMPORTANT DECISIONS(19.09.2017)

Agreement to sell - Specific performance - Cuttings and interpolations - Initialed by vendor - Cuttings and interpolations thus does not make the agreement doubtful. 2014(4) Civil Court Cases 499 (P&H) 

Civil & Criminal liability - Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. (2010(1) Criminal Court Cases 779 (S.C.)  

Criminal and civil proceedings - Serious allegations, if, involve factum of recovery of money, it cannot be concluded that complaint is purely civil in nature when other serious allegations prima facie attract the penal provisions - Order quashing criminal proceedings set aside. (2015(1) Criminal Court Cases 637 (S.C.)

Delay of 12 hours in sending FIR to Illaqa Magistrate - Delay not explained - Possibility of ante-timing the same cannot be ruled out. (2010(1) Criminal Court Cases 873 (P&H) (DB)  

Dishonour of cheque - Notice - It is not the requirement of law that date of service of statutory notice is to be disclosed in complaint at the stage of summoning. (2016(1) Criminal Court Cases 851 (All.)  

Domestic violence - Committed before commencement of Act which continued even after passing of the Act - Wife is entitled for protection orders and residence orders u/ss 18 & 19 of the Act along with maintenance allowance. (2014(1) Criminal Court Cases 160 (S.C.) 

Economic offences - Serious charges of forgery - Settlement with bank - Proceedings cannot be quashed merely on the ground that accused has settled the amount with bank. (2016(1) Criminal Court Cases 154 (S.C.) 

Eye witnesses - Statement of eye witnesses recorded after three days of occurrence - No explanation - Eye witnesses not wholly reliable witnesses in view of their unexplained silence and delayed statement to police. (2016(2) Apex Court Judgments 347 (S.C.) 

Food adulteration - Right u/s 13(2) of Prevention of Food Adulteration Act exercised by one accused - CFL found sample deteriorated and not in a condition fit for analysis - Benefit of CFL report enures to the benefit of all accused - Proceedings quashed. (2016(2) Apex Court Judgments 215 (S.C.) 

Maintenance u/s 125 Cr.P.C. - Decree dissolving marriage on ground of adultery - Not entitled to maintenance. (2016(1) Criminal Court Cases 094 (Madras) 

Wednesday 13 September 2017

Market value cannot be fixed by registration authority if there is no doubt as to sale consideration

🇮🇳🇮🇳Market value cannot be fixed by registration authority if there is no doubt as to sale consideration

Hyderabad High Court: The Single Judge Bench of the High Court stated that the market value of a property cannot be single handedly fixed by the registering authorities. The market value of the property can be fixed by such authorities only when there is a doubt regarding the proper market value.
The case before the Court was that the petitioners had purchased the said plot of land through an open auction at a set price of Rs. 15,200 per square yard. The total sale consideration of Rs. 10,57,46,400 was deposited in the Court by the petitioners after which the Court confirmed the sale. As some claim petitions for the suit property filed by third parties were pending, the sale deed could not be executed. Once the third party petitions were dismissed, the petitioner paid a sum of Rs. 74,02,255 towards stamp duty and Rs. 26,43,665 towards registration fee totaling to an amount of Rs. 1,00,45,920, on the total sale consideration of Rs. 10,57,46,400. The respondents then stated that the market value of the property was higher than the sale consideration and hence the stamp duty and registration fee for the property should be more. They kept the registration pending on these grounds. The Court had earlier directed the petitioners to furnish a bank guarantee after which the document would be processed.
The petitioner counsel contended that the petitioners had already paid a stamp duty according to the Indian Stamp Act, 1899 and the direction by the respondents for more stamp duty is not correct. The government pleader on the other hand contended that the market value of the property is to be taken into consideration when fixing stamp duty.
The Court allowed the writ petition stating that since the property was purchased by the petitioners in an auction, the consideration in the case cannot be doubted. The registration authorities cannot fix the market value of the property when there is no doubt regarding the sale consideration. The Court also directed the respondents to return the bank guarantee to the petitioners. [M/s. Super Gold Constructions Pvt. Ltd v. Sub-Registrar, S.R.Nagar, Hyderabad, 2017 SCC OnLine Hyd 236, decided on 12.07.2017]🇮🇳🇮🇳

SC:What is "Possession" and to "Occupy".

_*⭐SC:What is "Possession" and to "Occupy".*_

_In common parlance they may be used interchangeably but in law, "possession" amounts to holding property as an owner, while "occupy" is to keep possession by being in it. (Para 7)._

_Case:_
_*Ram Dass Vs. Davinder*_

_Citation:_
_*(2004) 3 SCC 684: AIR 2004 SC 2162.*_

_Bench Strength *- 2*_
_Coram: *R.C. Lahoti and Dr. Ar. Lakshmanan, JJ.*_
***************************
*

Supreme Court: Award of Lok Adalat cannot be challenged by way of suit. Only remedy is to file writ petition in High Court. Bharvagi Constructions v. Kothakapu Muthyam Reddy, CA No. 11345 of 2017,

Supreme Court: Award of Lok Adalat cannot be challenged by way of suit. Only remedy is to file writ petition in High Court. Bharvagi Constructions v. Kothakapu Muthyam Reddy, CA No. 11345 of 2017, Decided on 07.09.2017
http://sci.nic.in/supremecourt/2015/26531/26531_2015_Judgement_07-Sep-2017.pdf

Auction sale - Property worth Rs.1 crore sold in auction sale at partly sum of Rs.5,50,000

IMPORTANT DECISIONS (02.09.2017)

Auction sale - Property worth Rs.1 crore sold in auction sale at partly sum of Rs.5,50,000 -  Sufficient ground to set aside sale. (2017(2) Apex Court Judgments 707 (S.C.)

Expert opinion - Should be demonstrative and should be supported by convincing reasons. (2017(2) Apex Court Judgments 747 (S.C.)

Prevention of misuse of S.498-A IPC - Directions issued - These directions will not apply to offences involving tangible physical injuries or death : (a) No arrest normally be effected till report of Family Welfare Committee, to be appointed in every district, is received; (b) Complaints u/s 498-A IPC may be investigated only by a designated Investigating Officer of the area and such designations may be made within one month from  the date of the judgment in the instant case; (c) In cases where settlement is reached, it will be open to District and Sessions Judge or any other senior Judicial officer nominated by him in the district to dispose of the proceedings including closing of criminal case if dispute primarily relates to matrimonial discord; (d) Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected; (e) District Judge or a designated senior judicial officer may club all connected cases between parties arising out of matrimonial dispute; (f) Personal appearance of all family members and particularly outstation members may not be required and trial Court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of trial. (2017(3) Criminal Court Cases 297 (S.C.)

Rent and eviction - Eviction order on one of the grounds taken by landlord - Merely because landlords have taken possession on the basis of an order of eviction granted on one ground, that does not mean that surviving grounds have become non-est. (2017(2) Apex Court Judgments 717 (S.C.)

Service - Termination - Challenged after 13 years - Termination order contrary to  provisions of Industrial Disputes Act - Compensation granted in lieu of reinstatement without back wages.  (2017(2) Apex Court Judgments 582 (S.C.)

Thursday 7 September 2017

Supreme Court: Award of Lok Adalat cannot be challenged by way of suit. Only remedy is to file writ petition in High Court. Bharvagi Constructions v. Kothakapu Muthyam Reddy, CA No. 11345 of 2017,

Supreme Court: Award of Lok Adalat cannot be challenged by way of suit. Only remedy is to file writ petition in High Court. Bharvagi Constructions v. Kothakapu Muthyam Reddy, CA No. 11345 of 2017, Decided on 07.09.2017
http://sci.nic.in/supremecourt/2015/26531/26531_2015_Judgement_07-Sep-2017.pdf

Monday 4 September 2017

Co-owner - Non demarcation of suit property - Construction of compound wall, within suit property, to protect suit property from further encroachment - Permission granted, upheld. (2017(3) Civil Court Cases 461 (S.C.)*

*IMPORTANT DECISIONS (04.09.2017)*

*Co-owner - Non demarcation of suit property - Construction of compound wall, within suit property,  to protect  suit property from further encroachment -  Permission granted, upheld. (2017(3) Civil Court Cases 461 (S.C.)*

*Dishonour of cheque - Conviction - Compromise - On failure to pay the agreed amount, within time granted, accused shall be proceeded with for contempt, in addition to other proceedings, in accordance with law. (2017(3) Civil Court Cases 354 (S.C.)*

*Divorce - Irretrievable breakdown of marriage - May be supplementary to any other substantive grounds but same not a standalone ground. (2017(3) Civil Court Cases 335 (Hyderabad)*

*Domestic Violence - Magistrate on being satisfied that domestic violence has taken place can remove the spouse from the shared household. (2017(2) Apex Court Judgments 709 (S.C.)*

*Permanent injunction - Relief in part granted as Revenue Authority granted mutation of part of land - Bonafide purchase of entire property by plaintiff - Decree of permanent injunction granted of entire land. (2017(3) Civil Court Cases 389 (Tripura)*

*Back window*

*Agreement to sell - Contingent contract depending upon certain conditions - If any of the conditions is not fulfilled seller is not bound to sell suit property and complete the sale even if purchaser waived the said conditions. (2016(1) Apex Court Judgments 090 (S.C.)* 

*Bank loan - Non payment - Criminal proceedings not to be quashed even if  accused repaid the loan amount. (2016(2) Apex Court Judgments 107 (S.C.)*

*Criminal trespass into a dwelling house with intention to commit an offence - Offender not successful in committing the offence - Held, accused is even then liable for offence u/s 451 IPC.  (2010(1) Criminal Court Cases 533 (Kerala)*  

*Dishonour of cheque - Loan - Neither any receipt nor any authenticated document placed on record - No proof of legal liability - Accused rightly acquitted. (2016(1) Criminal Court Cases 631 (P&H)*

*Dowry death - Family members - Living together - By itself does not lead to conclusion that each of the family member was involved in demanding additional dowry and also behaving in a cruel or humiliating manner towards the deceased. (2014(1) Criminal Court Cases 001 (S.C.)*

*FIR - Sending copy of FIR to Magistrate - Sub Inspector  unable to say as to by whom and when copy of FIR was sent to Magistrate - No attempt made to prove as to when and how  copy of FIR was sent to Magistrate - Held, such glaring omission on the part of prosecution lends credence to the plea of defence about ante-timing of FIR. 2014(2) APEX COURT J 640 (S.C.)*

*Limitation - Computation - Limitation prescribed is the date of institution of complaint/charge sheet and not the date of cognizance or issuance of process by Court. (2016(1) Criminal Court Cases 846 (Delhi)*

*Part performance - Plea can be taken only in defence. (2016(2) Apex Court Judgments 670 (S.C.)*

*Rape victim - Termination of pregnancy - Permission of Court is not required - Pregnancy can be terminated at the nearest Government hospital when a request is made by rape victim or guardian in case of minor rape victim. (2015(1) Criminal Court Cases 835 (P&H)*

*Service - Disciplinary proceedings - Admission of charges - There is no need to hold an inquiry into the charges. (2016(1) Apex Court Judgments 689 (S.C.)*

Saturday 2 September 2017

Execution. Order 21 Rule 11 CPC does not bar simultaneous filing of two separate executions. A decree holder would be entitled to file two execution petitions for realizing or recovering the decretal amount due from two judgment debtors, when judgment and decree passed against them is joint and several. However, in case of two execution petitions being filed namely, one for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor, then in such a situation, executing Court may refuse execution against the person and property of said judgment debtor at the same time as indicated in Order 21 Rule 30 CPC. *Case: PAFCO 2916 INC. and Ors. Vs. Kingfisher Airlines Limited and Ors.* *Citation: AIR 2017 karnat 10*

Execution.

Order 21 Rule 11 CPC does not bar simultaneous filing of two separate executions.

A decree holder would be entitled to file two execution petitions for realizing or recovering the decretal amount due from two judgment debtors, when judgment and decree passed against them is joint and several.

However, in case of two execution petitions being filed namely, one for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor, then in such a situation, executing Court may refuse execution against the person and property of said judgment debtor at the same time as indicated in Order 21 Rule 30 CPC.

*Case: PAFCO 2916 INC. and Ors. Vs. Kingfisher Airlines Limited and Ors.*

*Citation: AIR 2017 karnat 10*

Friday 1 September 2017

ആധാരം ചെയ്യുന്നതോടൊപ്പം തന്നെ പോക്കുവരവും ഓൺലൈനായി സർക്കാർ നടപ്പിലാക്കിയിരിക്കുന്നു. ഇതിലൂടെ പോക്കുവരവ് എന്ന് ദുർഘടം പിടിച്ച പരിപാടി അവസാനിച്ചിരിക്കുകയാണ്.

** *ആധാരം ചെയ്യാനുള്ളവർ** *ശ്രദ്ധിക്കുക* * **

_വില്ലേജ് ഉദ്യോഗസ്ഥരുടെ പുതിയ തട്ടിപ്പ് തിരിച്ചറിയുക_

ആധാരം ചെയ്യുന്നതോടൊപ്പം തന്നെ പോക്കുവരവും ഓൺലൈനായി സർക്കാർ നടപ്പിലാക്കിയിരിക്കുന്നു. ഇതിലൂടെ പോക്കുവരവ് എന്ന് ദുർഘടം പിടിച്ച പരിപാടി അവസാനിച്ചിരിക്കുകയാണ്. ഭൂമി പോക്കുവരവിനായി ആരും വില്ലേജിൽ കയറിയിറങ്ങേണ്ട ആവശ്യമില്ല. *എന്നാൽ വില്ലേജ് ഉദ്യോഗസ്ഥരുടെ പുതിയ തട്ടിപ്പിന് ഇരയാകാതിരിക്കാനും ശ്രദ്ധിക്കുക.*

ആധാരം ചെയ്യുമ്പോൾ വില്ലേജിലെ തണ്ടപ്പേര് അക്കൗണ്ടിൽ കരം അടവ് പ്രകാരമുള്ള വസ്തു ഉണ്ടോ എന്ന് സബ് രജിസ്ട്രാർക്ക് ബോധ്യം വരുന്നതിനായി R.O.R (Revenue Office Register)
സർട്ടിഫിക്കറ്റ് വില്ലേജിൽ നിന്നും വാങ്ങണം എന്ന നിബന്ധനയുണ്ട്. R.O.R സർട്ടിഫിക്കറ്റ് ലഭിക്കുന്നതിന് ഒരു രൂപ പോലും ചെലവാക്കേണ്ടതില്ല. വില്ലേജിൽ അപേക്ഷ സമർപ്പിച്ചാൽ 5 മിനിറ്റിനുള്ളിൽ സർട്ടിഫിക്കറ്റ് കൊടുക്കാവുന്നതേയുള്ളൂ. എന്നാൽ വസ്തു പരിശോധിക്കണം, വസ്തു അളക്കണം, പ്രമാണങ്ങൾ പരിശോധിക്കണം തുടങ്ങിയ അനാവശ്യ കാര്യങ്ങൾ പറഞ്ഞു ജനങ്ങളെ ബുദ്ധിമുട്ടിച്ച് പണം തട്ടിയെടുക്കുന്ന താണ് പുതിയ തന്ത്രം.
ആധാരം ചെയ്യുവാനുള്ള ആരും R.O.R. സർട്ടിഫിക്കറ്റിന് വേണ്ടി കൈക്കൂലി കൊടുക്കരുത് അങ്ങനെ കൊടുത്താൽ ഇത് ഒരു പുതിയ കൈക്കൂലി സമ്പ്രദായത്തിന് വഴിയൊരുക്കും.
പരമാവധി ഷെയർ ചെയ്യുക......