cheque bounces cases - India- proceedings for appearance of accused- whether any personal exemption from appearance can be granted by magistrate court?

Cheque bounce cases: The question of granting exemption from the personal appearance of the accused in Cheque bounce cases (offences under section 138 of Negotiable Instruments Act) is always a changing stage. For some time, the Higher Courts directed the magistrates to grant exemption as a matter of right. But later the Supreme Court observed it is the discretionary power of the magistrate. 

The court shall take in to consideration that, granting of persona exemption shall not affect the proceedings of the case.   It is further observed that, the insistence of the personal appearance of the accused shall not cause enormous suffering on the accused.

police arrest - private complaint - CRPC- Can an accused be arrested forthwith in cases of forwarded cases from the Magistrate court under section 156(3) of Crpc by the Police?

Circular from Kerala Police Director General-

There have been instances of improper investigation of cases registered under S.156 (3) of the Code of Criminal Procedure, 1973 reported from various parts of the State. The fact of registration can be used deliberately to manipulate a situation where by the accused are unnecessarily arrested. The investigation of such cases can be used to settle financial disputes, under coercion or the threat of arrest.
In this regard, the following instructions are issued for strict compliance:

1) In the event of a Magistrate directing the Police, under S.156 (3) Cr.P.C, to investigate a case, the Station House Officer concerned, shall forthwith register the case.
2) The Case should be investigated by an officer not below the rank of a Sub Inspector.
3) The arrest of the accused in such cases shall only be made after due investigation, and, after the Investigating Officer is fully convinced of the complicity of the accused in the crime and the need to arrest him. The need for the arrest shall be substantiated with reason in the Case Diary.
4) Prior information both in writing and personally over phone may be given to the immediate supervisory authority by the Investigating Officer, before proceeding with such arrest.
........................

professional arbitrators - retired judges from judiciary

The service of retired judicial officers are available for acting as professional arbitrators and mediators.

Contact: 9447200500.

can a mosque or church or temple constructed if the local people objected? is there any special sanction obtained as per building rules for construction of place of worships?

The Section 235A of the Kerala Panchayath Raj Act 1994 gives power for the Government to make Rules in connection with the Construction of buildings. It read so:

235A. Building Rules:

(1)          The Government may make rules-....

(2)          (b)     No site shall be used for the construction of a building intended for public worship, if the construction thereon will wound the religios feelings of any class of persons.

The Rule 7(8) provisio of The Kerala Panchayath Building Rules 2011. It read so

Rule 7(8): 

In the case of an application for development or redevelopment of any land within the Security Zone, the Secretary shall consult the District Collector concerned before permission is granted.  The District Collector, after getting specific recommendation from the Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied  by the Secretary while issuing the permit.   

       Provided that in the case of development or redevelopment for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and also the conditions stipulated in the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony which is in force have to be complied with. Applications for renovation without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be considered by the Secretary after informing the District Collector in form in  Appendix - N duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence  by the District Collector.  

food adulteration cases- prevention of food adulteration Act- impleading manufactuers and dealers - question of successive warranty.

1990 (1) KLT 572, Chandak V. Food Inspector the division bench of Kerala Honourable Court held that, successive warranties are allowed as per the provisions of PFA Act. This would help the poor vendors to implead their successive dealers and distributors. 


1979 Crl L J  969, Municipal Corporation of Delhi V. R Sahai and Other the three Bench decision of the Apex Court clarifies that, the jurisdiction under section 20A of the PFA Act can be exercised only during the trial.


2000 SCC (Cri) 1, Omprakash Shivprakash V. K I Kuriakose and Others that, the power to implead a dealer, Manufacturer or distributor under Section 20A of Prevention of Food Adulteration can neither be invoked before the stage of adducing evidence in the trial nor after the conclusion of the trial. It is further held that, the ‘trial’ for the offences under the Act begins when under section 251 Crpc the Magistrate asks the accused whether he pleads guilty or not.

2010 2 KLT 206 (Ayankali Nadar & Sons V. Sivasankara Pillai) It is stated in the said decision by a Single Bench of High Court of Kerala that, only if there is evidence, then only the person can be impleaded as per section 20A of PFA Act.

Role of police in civil cases - civil disputes and police interference - DGP circular, Kerala Police.

Can mutation of the property done during the pendency of revenue recovery proceedings?

The mutation means transfer of registry subsequent to the sale of the property. When a sale deed is executed in Sub Registrars Office, naturally the ownership need also be changed in the Mutation Register kept in Village Office.

Usually, if an attachment or recovery proceedings is initiated on the subject matter, the Village Officers hesitate to effect the transfer in the registry. The matter is distinguished by Kerala High Court on a couple of cases, by Js Antony Dominic. It was held that, the effect of mutation in the name of new owner cannot be stalled for the reason that the revenue recovery proceedings are pending. It is further clarified in the order that, even if mutation is effected, the revenue recovery proceedings can be initiated against the new owner.!

professional arbitrators for mediation and conciliation and arbitration- retired judges, judicial officers etc.

Arbitration is one the relevant method of settlement of disputes, rather than longing in courts in long queue. The firms and companies can invoke arbitration clauses in their daily contracts and in the event of dispute, they can start proceedings through arbitrator. The award of an arbitrator is having same footing of that of a decree of civil court. The remaining proceedings is only for filing execution on the basis of the award of the arbitrator. 

Revaluation of answer sheets - speedy valuation is a right guaranteed under the Constitution of India. How to get revaluation results easier--earliest?

The revaluation of answer sheets are always a hurdle for the students in Kerala, especially those who are studying for BTech Degree Courses. The undue delay in evaluation diminishes the opportunity of students to get placement in 7th and 8th Semesters. Most of the companies offer opportunities, with a chance to clear the back log on previous semesters. But even after appearing supplementary examinations and even some times applying for revaluation, the undue delay from the University is really a head ache for the students.
However, those who can afford a Writ Petition in High Court of Kerala are able to get the results in a time bound manner. The right to get the revaluation result in time is the fundamental right of a student.

you can record the action of police - audio and video recording permissible as per section 33 of Kerala Police Act.

Compassionate appointment - retirement on medical grounds

The question whether Compassionate appointment can be denied to the dependents of those who retire from service on medical grounds again mooted in the Central Administrative Tribunal, Ernakulam Bench.
Earlier an official letter dated 29-5-1992 was quashed by the CAT full bench, in OA 220/98 dated 8-11-01. Subsequently in another case,  a division bench of CAT took the similar stand.
But the department again relied on the non est order which was already quashed by the CAT. Later this stand was confirmed by the High Court of Kerala vide order dated 28-9-04. Now again in another petition, CAT vide order dated 1-12-2011 observed that, the department again relied on the order which was already quashed. The CAT directed the department to circulate the quashed order within one month or pay a cost of RS 5000 to the Applicant. 

MULLAPERIAR DAM – LEGAL TUSSLE – A BRIEF History

MULLAPPERIAR DAM – LEGAL TUSSLE – A BRIEF

1.       On 29-10-1886 a lease indenture for 999 years was made between Maharaja of Travancore and Secretary of State for India for Periyar irrigation works by another agreement in 1970, Tamil Nadu was permitted to generate power also.

2.       The Mullaperiyar Dam was constructed during 1887-1895 across Periyar River in the then Travancore state (now Kerala) territory after said indenture. The Periyar Dam with full reservoir level of 152 ft. provides for diversion of water from the reservoir through a tunnel to Vaigai basin in Tamil Nadu for irrigation benefits in 68558 ha. 

3        In 1979, reports appeared in Kerala Press about the safety of Mulla Periyar Dam.   On 25^th November, 1979 Chairman, CWC held discussions at Thirvananthapuram regarding strengthening Periyar dam with officers of Irrigation and Electricity, Deptt. of Kerala and PWD of Tamil Nadu.  In the meeting, emergency measures to be completed before next monsoon (1980), medium term measures and long-term measures for strengthening of Periyar Dam were decided.  One of the emergency measures was to keep the shutters of spillway raised fully to lower the reservoir level to 136 ft. 

4.       A second meeting under the Chairmanship of Chairman, CWC was held on 29^th April 1980 at New Delhi and it was opined that after the completion of emergency and medium term measures in the form of cable anchoring, the water level in the reservoir can be restored up to 145 ft.

5.       As per the Memorandum on the Rehabilitation of Mulla Periyar Dam prepared by CWC and forwarded to Tamil Nadu on 25^th March, 1986, emergency measures were implemented.  In the aforesaid Memo, CWC gave its recommendation about peak flood and size of additional vents to be added in the spillway for implementing remaining emergency measure of providing additional spilling capacity.  It also gave its recommendation about the design details of concrete backing on the downstream face of the dam.  Besides this, CWC suggested The Government of Tamil Nadu to examine the possibility of raising the top of RCC parapet by another two feet apart from few other suggestions.    It was opined in the forwarding note that after completion of the proposed strengthening measures, provision of other additional vents and implementation of other suggestions, Periyar dam would be competent to hold water upto FRL of 152 ft.

6.       The matter became subjudice with several petitions in the Kerala and Tamil Nadu High Courts. All these cases were transferred to the Supreme Court which heard the matter and desired in its order dated 28.4.2000 that Hon’ble Minister (WR) may convene a meeting of the Chief Ministers of both the states of Kerala and Tamil Nadu to amicably resolve the issue.  .

7.        Hon’ble Minister (WR) convened the Inter-State meeting on 19.5.2000 and as decided in the meeting, an Expert Committee under Member (D&R), CWC with representatives from both States was constituted in June 2000 to study the safety of the dam with respect to strengthening of dam carried out by The Government of Tamil Nadu on the advice of Central Water Commission and advise regarding raising of water level in the reservoir beyond 136 ft as a result of strengthening of dam.

8.     The Committee in its report of March, 2001 opined that with the strengthening measures implemented, the water level can be raised from 136 ft. to 142 ft. without endangering safety of the dam. Further raising of water level to 152 ft. will be considered after balance strengthening measures are implemented.

9.                  In the case of Transfer Petition (Civil) No. 779-783/1998 Dr. Subramanian Swamy Vs Tamil Nadu, the Report of the Expert Committee was filed in the Hon’ble Supreme Court on 31.8.2001 and also sent to the State Governments of Kerala and Tamil Nadu. 

10        In writ Petition ( C) No. 386 of 2001 (Mulla Periyar Environmental Protection Forum Vs Union of India and Ors) the Supreme Court in its Judgement dated 27.2.2006, permitted the Government of Tamil Nadu to raise the water level of Mulla Periyar dam from 136 ft. to 142 ft. and take up  the remaining strengthening measures.

11.      Consequent to the aforesaid orders of the Supreme Court of India, the Kerala Government passed the Kerala Irrigation and Water Conservation (Amendment) Act 2006 which received the assent of the Governor   on 18^th March 2006 which prohibited the raising of water level beyond 136 ft. in the Mulla Periyar Dam as Mullaperiyar Dam was placed under the Schedule of ‘Endangered Dams’.

12.     The Government of Tamil Nadu filed a suit No. 3 of 2006 - State of Tamil Nadu v/s State of Kerala and Union of India in the Hon’ble Supreme Court on 31.3.2006 praying for -

(i)                 Declaration of Kerala Irrigation and Water Conservation (Amendment) Act 2006 passed by Kerala Legislature as unconstitutional in its application to and effect on Mulla Periyar Dam.

(ii)               Pass a decree of permanent injunction restraining Kerala from application and enforcing impunged legislation enforcing with or obstructing Tamil Nadu from increasing the water level to 142 feet and from carrying out the repair works as per judgment of Supreme Court dated 27^th February 2006.

13.      A Review Petition filed by the State of Kerala on 3.4.2006 was dismissed by the Supreme Court on 27.7.2006. 

14.      In the matter referred to in para 13 above, the Hon’ble Supreme Court has passed an order on 25.9.2006 stating “the two State Governments independently or with the intervention of the Union of India may try to sort out the dispute, if possible.

15.      The Hon’ble Union Minister (WR) convened an inter-State meeting of the Chief Ministers of States of Tamil Nadu & Kerala on Mulla periyar dam issue on 29.11.2006 at New Delhi.  Hon’ble Union Minister (WR) further discussed matter with the Minister (WR/PW) from the States of Tamil Nadu & Kerala on18.12.2006.  The States of Tamil Nadu and Kerala reiterated their respective stand in the meetings and no consensus could be reached regarding a solution acceptable to both States. The matter is now subjudice.

16.              Subsequently, Hon’ble Chief Minister of Tamil Nadu met Hon’ble Prime Minister on 18.12.2007 and Hon’ble Prime Minister suggested him to have a meeting with Hon’ble Chief Minister of Kerala on Mulla Periyar issue.  Hon’ble Chief Minister of Tamil Nadu met Hon’ble Chief Minister of Kerala on 19.12.2007 in presence of Hon’ble Union Minister of Water Resources.  Further a letter dated 20.12.2007  was  received from the Hon’ble Chief Minister of Tamil Nadu  mentioning that in the above meeting, Hon’ble Chief Minister of Tamil Nadu suggested to oversee the seepage measurement of the dam by engineers not belonging to either of the two States through CWC and Hon’ble Chief Minister of Kerala  agreed to consider them.

17.       Later, the Govt. of Tamil Nadu forwarded a letter dt 22/1/08 of Hon’ble Chief Minister of Kerala addressed to Hon’ble Chief Minister of Tamil Nadu wherein it is mentioned that in the meeting dt 19/12/2007 he suggested a joint mechanism to monitor the seepage. The Govt. of Tamil Nadu also enclosed a letter dated 4/2/2008 from Hon’ble Chief Minister of Tamil Nadu addressed to Hon’ble Chief Minister of Kerala wherein it is mentioned that joint monitoring was not discussed in the meeting.

18.     CWC was requested to suggest a suitable mechanism for monitoring the seepage and possible structure of the Committee to monitor it. They suggested a nine- member Committee headed by a Chief Engineer, Central Water Commission having representatives from both States for Monitoring the seepage of Mulla Periyar Dam.   The composition of the Committee along with terms of reference was sent to Chief Secretary,  Government of Tamil Nadu and Kerala vide letter dated 28.4.2008 for  their concurrence / suggestions.

19.     The Government of Tamil Nadu vide its letter dated 17.6.2008 has sent its comments on the proposed Monitoring Committee stating that the present proposal of the Government of India to constitute a Committee comprising officers from CWC, Tamil Nadu Government and Kerala Government to measure the seepage in Mulla Periyar Dam is not in conformity with the discussion held in the meeting dated 19.12.2007 and proposal will lead to more and more complications and thus not acceptable to Govt. of Tamil Nadu. The Govt. of Kerala vide letter dt 24.2.2009 informed that the stand taken by the Govt. of Tamil Nadu for  neutral agency of experts excluding those form Kerala and Tamil Nadu is not acceptable to them.

20.      In the meanwhile, Govt. of Kerala has got done hydrological review studies from a professor of IIT, Delhi and has since filed the said hydrological studies report in the Hon’ble Supreme Court on 15.07.08 in connection with Suit No.3 of 2006 filed by the Government of Tamil Nadu. It has been concluded in the report that the Mulla Periyar dam is hydrologic ally unsafe for passing the estimated Probable Maximum Flood (2, 91,275 cusec / 8,248 cusec) with the existing spillway capacity. Comments of Hydrological Studies Organisation, CWC on the report were forwarded to the Govt. Advocate as per instructions of MoWR vide CWC letter dated 13.10.08. CWC has commented that the difference in the adopted values of Design Rainfall (Storm) depth, Time distribution of rainfall, Unit hydrograph & Infiltration rate have resulted in estimation of higher flood peak (PMF) and the said studies by the IIT Professor  does  not appear to be well founded.

21.      Meanwhile the Government of Kerala constituted a Committee in May 2009 which submitted its report in June, 2009. The Committee suggested mapping of the underwater area, installation of highly sensitive computer operated Seismograph and construction of a new Dam downstream of existing dam. The Committee has also opined that the dam has reached such a deteriorated condition that no amount of rectification work could salvage it to a safe and healthy condition.  Keeping in view this report, Minister (WR) advised Chairman, CWC in July, 2009 to constitute a team of officers to visit the dam and assess the present condition of the Mulla Periyar dam and look into the issues raised in the report of the above Expert Committee. The team had proposed a visit to the dam from 22-25 July, 2009 and the conveniences of the Government of Kerala and Tamil Nadu for the visit were sought. The Government of Tamil Nadu agreed to the proposed visit but the Government of Kerala requested for postponement of the proposed visit because of torrential rains. Thereafter, the visit could not materialize.

22.        Thereafter, Secretary (WR) convened a meeting on the Mulla Periyar Dam on 31.7.2009. The meeting was attended among others by Principal Secretary, PWD, Tamil Nadu and Additional Chief Secretary, WRD, Kerala. In the meeting the representative of Kerala informed that the Kerala Govt. visualizes construction of new dam as the only feasible solution and they have started survey and investigation for a new dam at an alternate site downstream of the existing dam and they may also consider the construction of a new dam at their own cost. Representative of Kerala stated in the meeting that the Govt. of Kerala also recognizes the established uses of water from the dam by Tamil Nadu as per the existing agreement between the two States and will continue the same after the construction of a new dam. In the said meeting the representative of Govt. of Tamil Nadu informed that the Govt. of Tamil Nadu would examine the proposal of the Govt. of Kerala for new Dam after the same is formally received from them. In view of this, Hon’ble Minister (WR) vide DO dated 26.08.2009  requested Hon’ble Chief Minister, Kerala to send the proposal in this regard to the Govt. of Tamil Nadu for their consideration.

23.     Later, Govt. of Tamil Nadu vide letter dated 14.9.09 mentioned that as regards the decision that has emerged in the meeting, to examine the proposal of the Kerala Government for the construction of a new dam by Tamil Nadu Government, the Government of Tamil Nadu had already communicated to the Government of India as well as to the Government of Kerala that there is no need for construction of a new dam by the Kerala Government, as the existing dam after it is strengthened, functions like a new dam. They also  mentioned that Hon’ble Chief Minister of Tamil Nadu in his letter dated 13.07.09 to  Hon’ble Chief Minister of Kerala had mentioned that Kerala Govt. may not raise the issue of new dam any more.

         

24.     The Govt. of Kerala vide letter dated 26.9.2009 sent comments on the minutes of the meeting dated 31.7.2009 mentioning that the statement “The Govt. of Kerala also recognizes the established use of water from the dam by the Tamil Nadu as per the existing agreement between the two States and continue the same after the construction of new dam” is not acceptable.  What was mentioned in the meeting was that Kerala is willing to give water to Tamil Nadu.

                                                                      

25.   Further, Hon’ble Supreme Court heard the issues related to Mulla Periyar Dam on 10.11.2009 and passed the order that,

“As the case involves the resolution of said questions, the suit may be placed before the Hon’ble Chief Justice of India for necessary directions for placing it before a constitution Bench.

                                             

The contesting parties shall maintain status quo in respect of Mulla Periyar Dam as existing today.  However, order of status quo will not be an impediment for the plaintiff (State of Tamil Nadu) to carry out maintenance and repairs for proper upkeep of the said Dam.”

26.      The case was heard by five judges on 18.2.2010 and the Court directed Central Govt. to constitute an empowered Committee in this regard which would hear the parties to the suit on all issues that will be  raised before them, and furnish a report, as far as possible, with in six months from their constitution. 

27      Following the order of Hon’ble Supreme Court dated 29.02.2010, Centre (MoWR) has constituted an Empowered Committee vide Notification dated the 30^th April, 2010.   The Committee started its functioning and was to submit its report within six months period.  Further, Supreme Court vide its order dated 20^th September, 2010 has extended the term of Committee by a further period of six months.  Therefore, implementing the said directions of the Supreme Court, the Central Government extends, the terms of Empowered Committee for a further period of six months w.e.f. 30^th October, 2010 vide Notification dated the 28^th October, 2010

How AADHAR Unique I D Number work in Kerala..

AADHAAR & Unique Identification Authority of India (UIDAI)

The Unique Identification Authority of India (UIDAI) was established in 2009 by the Government of India, with the developmental mandate of setting up the infrastructure to provide a universal way of uniquely identifying Indian residents. This is in the form of AADHAAR, a 12-digit unique identification number (UID) that will be provided after getting the demographic and biometric information of an individual. (AADHAAR, translates into 'foundation', or 'support'). The name 'AADHAAR' communicates the fundamental role of the number issued by the UIDAI: the number as a universal identity infrastructure, a foundation over which public and private agencies can build services and applications that benefit residents across India. AADHAAR's guarantee of uniqueness and centralized online identity verification would be the basis for building these multiple services and applications, and facilitating greater connectivity to markets. AADHAAR would also give any resident the ability to access these services and resources, anytime, anywhere in the country. AADHAAR would also be a foundation for the effective enforcement of individual rights. A clear registration and recognition of the individual's identity with the state is necessary to implement their rights - to employment, education, food, etc. UIDAI, by ensuring such registration and recognition of individuals, would help the state deliver these rights. On June 25th 2009, the Cabinet also created and approved the position of the Chairperson of the UIDAI, and appointed Mr. Nandan Nilekani as the first Chairperson in the rank and status of a Cabinet Minister. Mr. Ram Sewak Sharma has been appointed the Director General. UIDAI in Kerala The Government of Kerala would like to enhance efficiency in delivery of government benefits and services through accurate identification of beneficiaries and to have uniform and to have uniform standards and processes for verification and identification of beneficiaries. The Government of Kerala has set up a Cabinet Sub Committee under the Chairmanship of Chief Minister of Kerala vide G. O. (MS) No. 41/2009/ITD dated 31.12.2009 and a State UID Implementation Committee under the Chairmanship of the Chief Secretary, Kerala vide G. O. (MS) No.1/2010/ITD dated 6.1.2010 to oversee and guide the implementation of the Unique ID number in the State. The Cabinet Sub Committee constituted in the State is as follows: Hon'ble Chief Minister – Chairman Hon'ble Minister for Finance - Member Hon'ble Minister for Agriculture - Member Hon'ble Minister for Home & Vigilance - Member Hon'ble Minister for Law - Member Hon'ble Minister for Education - Member Hon'ble Minister for LSGD - Member Hon'ble Minister for Labour - Member Deputy Chairman, Planning Board - Member The State UID Implementation Committee constituted by the Government is as follows: Chief Secretary - Chairman Principal Secretary LSGD - Member Principal Secretary (IT) - Convener Secretary, Food and Civil Supplies - Member Secretary, Health - Member Secretary, Education - Member Secretary, Planning and Economic Affairs - Member Director of Census Operations - Member Representative from UIDAI - Member The Information Technology Department has been designated as nodal department for the UID project. A Memorandum of Understanding has been executed on 28 May 2010 between The Unique Identification Authority of India (UIDAI) and The Government of Kerala for the implementation of the UID Project. The Memorandum of Understanding was signed by Dr. Ashok Dalwai IAS, Deputy Director General, UIDAI, on behalf of UIDAI and Dr. Ajay Kumar IAS, Principal Secretary to Government of Kerala, Information Technology Department, on behalf of Kerala State Government. As per G. O. (Rt) 166/2010/ITD dated 15.7.2010, a Committee of Secretaries has been constituted, as below, to discuss the need and scope of KYR plus data for Kerala and to finalise the scope of such data.

promissory note - no revenue stamp- void

A promissory note engrossed on a stamp paper is void. If no revenue stamp is affixed, it cannot be called as a promissory note.. Stamp Act 1899, section 2(22), section 2(23)- suit for recovery of money under a promissory note. 2011 4 KHC 393 (DB) Js Thottathil B Radhakrishnan

Family Courts Act - photocopy of a document can be admitted in evidence- Kerala High Court

Family Courts Act 1984- Section 10(3), section 14, section 15, section 20
Question of admissibility of an original or photocopy of a document arises only when a challenge is raised regarding its admissibility. In the absence of contra evidence or any challenge to the credibility of the document produced, it ought to have accepted in evidence. 2011 4 KHC 375 DB Js Thottathil B Radhakrishnan.

Article 226 of Constitution of India- High Court has power to assess, quantify and fix liablity for loss caused to public property.

The Kerala High Court held that, in exercise of the Jurisdiction under Article 226 of Constitution of India, Court has ample power to assess, quantify and fix liability for the loss caused to public property as well as to recover the same from the concerned. The Court ordered so in allowing a Writ Petition for Police Protection.
2011 4 KHC 95 (DB)  Js Basanth

prevention of damages to public property act 1984- bail- value of property damaged need to be deposited for granting bail - Kerala High Court Order.

PDPP Act 1984 - Kerala High Court held that, in cases where public property is destroyed, the value of the same or even more should be directed to be deposited by the accused as a condition for granting bail to them.  B.A. 7963/2011 Order dated 10/10/11.  2011(4) KHC 89 Js K T Sankaran.

Creamy layer limit - Kerala 4.5 lakhs..

The present cream layer limit in Kerala for Other Backward Classes Community is Rs 4.5 lakhs.
National Commission for Backward Classes has submitted their recommendations for increasing the creamy layer limit to Rs. 12 lakhs in the metro cities and to Rs.9 lakhs in the rural area keeping in view the fact that the present day limit of  Rs.4.5 lakhs is not sufficien to serve the purpose.
At present, the many posts are lying vacant because of non availability of suitable candidates.
The reservation is for 27 percent, but average reservation actually bendfited to the OBC is only 7 percent. In Group A  and Group D posts are the lowest filled 5.5% and 5.1%respectively. For Gr.B it is 8.9% and for Gr.C it is 8.1%. The fall in money value and the increase in the salaries are the other resons for the Commissions recommendations.

The rule 20 of Kerala Welfare and Maintenance of Parents and Senior Citizens Act 2009 is still to be imlemented.

Despite of the circulars issued by the Director General of Police, the execution of Rule 20 of Kerala Welfare maintenance of Parents and Senior Citizens Rules 2009 is yet to be implemented in Police Stations in Kerala.

KERALA POLICE CIRCULAR - RESTRICTION OF ASSEMBLIES AND PROCESSIONS IN PUBLIC ROAD

KERALA POLICE CIRCULAR- 7 DAYS NOTICE FOR USING PUBLIC PLACE FOR PROCESSION


The Kerala Police issued a circular on Sept 2011, regarding the guidelines to be followed in extending sanction for conducting procession and public meetings. Seven days notice is mandatory for getting permission; even though it can be relaxed for fit reasons.

Know the posting dates and status of consumer cases- Ernakulam CDRF

The confonet.nic.in is a good initiative by the Authorities. Even though most of the legal practitioners and clients would take note of the next posting date in the open court itself, the availability of cause list through online provides much convenience and ease.
But, to be sad to state, many of the consumer courts are not updating the judgments and other details in time to meet the needs of the clients.

NDPS - offence under Narcotic Drugs and Psychotropic Substances- the compliance section 50, regarding the presence of gazetted officer or magistrate in conducting the personal search can be easily misused by the arresting officers. Presently, as per the recent supreme court decisions, if the body search is not conducted and only bag or vehicle is checked, there the section 50 need not be complied. But is certain cases where the purse, mobile and other personal belongings might have recovered. Without conducting body search, how it is possible. Even then the compliance is not necessary. A relook in the settled position is necessary.

NDPS - offence under Narcotic Drugs and Psychotropic Substances- the compliance section 50, regarding the presence of gazetted officer or magistrate in conducting the personal search can be easily misused by the arresting officers. Presently, as per the recent supreme court decisions, if the body search is not conducted and only bag or vehicle is checked, there the section 50 need not be complied. But is certain cases where the purse, mobile and other personal belongings might have recovered. Without conducting body search, how it is possible. Even then the compliance is not necessary. A relook in the settled position is necessary.

NEW WELFARE FUND SCHEME LAUNCHED IN KERALA FOR UN ORGANIZED WORKERS. ALL KINDS OF WORKERS ARE INCLUDED IN THE SCHEME.

KERALA WOMENS CODE BILL 2011

India is the biggest democracy in the world. Offcourse, it is not only in the sense of number in population, but the significance of unending prevailence of democracy made it so.
Every minute spade to any of the fundamental rights, especially when it seems to be on the much tom-tommed values and human rigts will create suspicion over the minds of the deprived ones. The punitive restriction on the third child in a country of much appreciated young industrious human resource may definitely cast shadow on the protection of basic rigts.
The new Kerala womens code bill is one such peice of intended legislation which slams at the basic rights of freedom.

Fine or imprisonment third for child in Kerala- mixed response, protest from pro child corners

The Kerala Women's Code Bill 2011 submitted to the Kerala chief minister by a 12-member committee headed by Justice V R Kishna Iyer evoked mixed response. Where as wide range of criticism is invited from Christian and other Religious organisations which promotes values of life.

A fine of Rs 10,000 or three months simple' imprisonment on third child is ridiculous, say reports. The Kerala Women's Code Bill 2011 maintains that violation of family norms will be deemed a legal disqualification and parents will not be eligible to receive any benefits from government.
The draft which stipulates that religious and political outfits should not be allowed to discourage population planning and any such effort on their part should be censured by the governor.  Various benefits which curtails for a family having more than two children is violative of fundamental rights of equality - the protesters said. It is not reported that any one of the members of the committee had made any dissenting notes on the above said proposals.

LEGAL CONSULTANCY- KERALA-ERNAKULAM- ONLINE

post your queries  to sherryjthomas@gmail.com

New welfare fund for unorganized workers in Kerala - SOCIAL SECURITY ACT

NEW WELFARE FUND SCHEME LAUNCHED IN KERALA FOR UN ORGANIZED WORKERS. ALL KINDS OF WORKERS ARE INCLUDED IN THE SCHEME.

Janlokpal bill - leaflet in മലയാളം for discussion. malayalam lok pal bill

JANLOKPAL bill - a brief leaflet in malayalam.

lokpal - janlokpal leaflet. Full text of JanLokpal- August 2011

An act to create effective anti-corruption and grievance redressal systems at centre
so that effective deterrent is created against corruption and to provide effective
protection to whistleblowers.
1. Short title and commencement:- (1) This Act may be called the

LOKPAL BILL 2011- DRAFT LOKPAL BILL - GOVERNMENT DRAFT PUBLISHED IN THE OFFICIAL WEB SITE OF Ministry of Personnel, Public Grievances and Pensions

1. (1) This Act may be called the Lokpal Act, 2011.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act and any reference in any provision to the commencement of this Act shall be construed as reference to the coming into force of that provision...........................

Residence certificate from local bodies - to include name in voter list - guidelines issued.

Residence certificate... G.O.

kerala government - liquor policy 2011

The new liquor policy of Government of Kerala has evoked mixed response from the people....download from the above link....full text.

How to prepare a will- Model will to be presented before the Sub Registrar Offices in Kerala.

Model will in malayalam form to be presented before the SROs in Kerala.

Registration format.

No stamp duty is required for a will.

How to register a partition deed between the family members

Exact model of partition deeds to be presented 

before the Sub Registrar Offices in Kerala.

Malayalam Draft Model

online application for voter identity card kerala - e registration of voters id card

• INSTRUCTIONS FOR FILLING UP APPLICATION FORM 6


• 1) The Election Identity Card number of the applicant's relative(s) should be filled up. The applications in which Election Identity Card number of the relative(s) is not filled up will not be considered.
  
  2) Applicant must write their Name, Relation name, Address etc. in MALAYALAM on the print out in the space provided and hand over the same duly signed to the respective Taluk Office on the date chosen by him/her. Those who are unable to take a printout of the application should note down the application number and submit filled up application in form number 6 at the Taluk Office quoting that number.
  
  3) The applicant can select any one of the following dates for appearing at the Taluk Office for producing signed application along with original/attested true copy of the document to prove his/her age and for taking his/her photograph. 

How to apply under Right to Information Act? Model application form- download.

Missing Persons - guidelines to be followed in Police Station- Circular 2011

Sub:- Missing Persons – Registration and Investigation – Kerala Police
Act, 2011 – New procedure – Instructions – Regarding
Ref:-
1. PHQ Circular No.54/1971 dated 27.04.1971.
2. PHQ Circular No.32/2009 dated 12.08.2009.
3. PHQ Circular No.10/2010 dated 21.02.2010.

Missing properties - how to complaint - Register to be maintained in Police Stations- Government Circular 2011

Sub: - Missing Properties – Maintaining Register of Missing Properties –
Kerala Police Act 2011-Instructions issued -

Apply minority scholarship in India- Online

how to register a new company in India? How to form a new company under the companies Act.

Steps to be taken to get incorporated a private limited Company:

• Select, in order of preference, a few suitable names, not less than four, indicative of the main objects of the company.
• Ensure that the name does not resemble the name of any other company already registered and also does not violate the provisions of Emblems and Names (Prevention of Improper Use) Act, 1950.
• Apply to the concerned ROC to ascertain the availability of a name in the General Rules and Forms along with a fee of Rs.500/- If the proposed name is not available apply for a fresh name on the same application.
• Arrange for the drafting of the Memorandum and Articles of Association by the solicitors, the vetting of the same by the ROC and the printing of the same.
• Arrange for the stamping of the Memorandum and Articles with the appropriate stamp duty.
• Get the Memorandum and Articles signed by at least two subscribers in his own hand, his father's name, occupation, address and the number of shares subscribed for and witnessed by atleast one person.
• Ensure that the Memorandum and Articles are dated after the date of stamping.
• Get the following forms duly filled up and signed:
  • Declaration of Compliance
  • Notice of the situation of the registered office of the company
  • Particulars of the Director, Manager or Secretary
• Present the following documents to the ROC with the filing fee and the registration fee:
  • The stamped and signed copies of the Memorandum and Articles of Association (3 copies).
  • Form-1, 18 & 32 in duplicate.
  • Any agreement referred to in the M & A.
  • Any agreement proposed to be entered into with any individual for appointment as Managing or whole time Director.
  • Name availability letter issued by the ROC.
  • Power of Attorney from the subscribers in favour of any person for making corrections on their behalf in the documents and papers filed for registration.
  • Pay the Registration and Filing Fee by Demand Draft/Banker's Cheque if it exceeds Rs.1000/-
  • Obtain the Certificate of Incorporation from ROC.

How to file case in kerala lokayuktha... online case filing.

The Lok Ayukta under the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) has been constituted for investigating into the allegations of corruption and mal-administration against public servants and for the speedy redressal of grievances of the public.

Edapally - Aroor toll plaza - in legal hurdle. The Permanent Lok Adalat directed the NHAI and State Government to appear on a petition filed by the Kumbalam Residents association's cordination committee.

Aroor-Kumbalam toll in NH bye pass:
 Permanent Lok Adalat for Public Utility Services directed NHAI and Kerala State Gov. to appear on a petition filed by the Coordination committee of Residents Association. OP No. 47/11.


The Petition is filed by Binesh of Kumbalam through Advocate Sherry J Thomas.

Police officers in Kerala to disclose the income source of their close relatives - Direction from the DGP, Kerala.

The income source of wife, children etc should be revealed by the police officers in Kerala as per the above cited circular. The nature of business, number of vehicles owned etc... are to be revealed.

Money chain in Kerala - article - legal issues. Even joining in money chain is an offence in India.

Just joining in money chain is an offence as it is against the provisions of Prize chits and Money Circulation Banning Act. 

Article in Malayalam

The Prize Chits and Money Circulation Schemes (Banning) Act, 1978

The prize chits and money circulation schemes (Banning) Act, 1978 

1. Short title and extent.—

(1) This Act may be called the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “conventional chit” means a transaction whether called chit, chit fund, kuri or by any other name by or under which a person responsible for the conduct of the chit enters into an agreement with a specified number of persons that every one of them shall subscribe a certain sum of money (or certain quantity of grain instead) by way of periodical instalments for a definite period and that each such subscriber shall, in his turn, as determined by lot or by auction or by tender or in such other manner as may be provided for in the chit agreement, be entitled to a prize amount. Explanation.—In this clause “prize amount” shall mean the amount, by whatever name called, arrived at by deducting from out of the total amount paid or payable at each instalment by all the subscribers,

(i) the commission charged as service charges as a promoter or a foreman or an agent; and

(ii) any sum which a subscriber agrees to forego, from out of the total subscriptions of each instalment, in consideration of the balance being paid to him;

(b) “money” includes a cheque, postal order, demand draft, telegraphic transfer or money order;

(c) “money circulation scheme” means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions;

(d) “prescribed” means prescribed by rules made under this Act;

(e) “prize chit” includes any transaction or arrangement by whatever name called under which a person collects whether as a promoter, foreman, agent or in any other capacity, monies in one lump sum or in instalments by way of contributions or subscriptions or by sale of units, certificates or other instruments or in any other manner or as membership fees or admission fees or service charges to or in respect of any savings, mutual benefit, thrift, or any other scheme or arrangement by whatever name called, and utilises the monies so collected or any part thereof or the income accruing from investment or other use of such monies for all or any of the following purposes, namely:—

(i) giving or awarding periodically or otherwise to a specified number of subscribers as determined by lot, draw or in any other manner, prizes or gifts in cash or in kind, whether or not the recipient of the prize or gift is under a liability to make any further payment in respect of such scheme or arrangement;

(ii) refunding to the subscribers or such of them as have not won any prize or gift, the whole or part of the subscriptions, contributions or other monies collected, with or without any bonus, premium, interest or other advantage by whatever name called, on the termination of the scheme or arrangement, or on or after the expiry of the period stipulated therein, but does not include a conventional chit;

(f) “Reserve Bank” means the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934 (2 of 1934).

3. Banning of prize chits and money circulation schemes or enrolment as members or participation therein.—No person shall promote or conduct any prize chit or money circulation scheme, or enrol as a member to any such chit or scheme, or participate in it otherwise, or receive or remit any money in pursuance of such chit or scheme.

4. Penalty for contravening the provisions of section 3.—Whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.

5. Penalty for other offences in connection with prize chits or money circulation schemes.—Whoever, with a view to the promotion or conduct of any prize chit or money circulation scheme in contravention of the provisions of this Act or in connection with any chit or scheme promoted or conducted as aforesaid,—

(a) prints or publishes any ticket, coupon or other document for use in the prize chit or money circulation scheme; or

(b) sells or distributes or offers or advertises for sale or distribution, or has in his possession for the purpose of sale or distribution any ticket, coupon or other document for use in the prize chit or money circulation scheme; or

(c) prints, publishes or distributes, or has in his possession for the purpose of publication or distribution—

(i) any advertisement of the prize chit or money circulation scheme; or

(ii) any list, whether complete or not, of members in the prize chit or money circulation scheme; or

(iii) any such matter descriptive of, or otherwise relating to, the prize chit or money circulation scheme, as is calculated to act as an inducement to persons to participate in that prize chit or money circulation scheme or any other prize chit or money circulation scheme; or

(d) brings, or invites any person to send, for the purpose of sale or distribution, any ticket, coupon or other document for use in a prize chit or money circulation scheme or any advertisement of such prize chit or money circulation scheme; or

(e) uses any premises, or causes or knowingly permits any premises to be used, for purposes connected with the promotion or conduct of the prize chit or money circulation scheme; or

(f) causes or procures or attempts to procure any person to do any of the above-mentioned acts, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.

6. Offences by companies.—

(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section—

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

7. Power to enter, search and seize.—

(1) It shall be lawful for any police officer not below the rank of an officer in charge of a police station,—

(a) to enter, if necessary by force, whether by day or night with such assistance as he considers necessary, any premises which he has reason to suspect, are being used for purposes connected with the promotion or conduct of any prize chit or money circulation scheme in contravention of the provisions of this Act;

(b) to search the said premises and the persons whom he may find therein;

(c) to take into custody and produce before any Judicial Magistrate all such persons as are concerned or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of their having been concerned with the use of the said premises for purposes connected with, or with the promotion or conduct of, any such prize chit or money circulation scheme as aforesaid;

(d) to seize all things found in the said premises which are intended to be used, or reasonably suspected to have been used, in connection with any such prize chit or money circulation scheme as aforesaid.

(2) Any officer authorised by the State Government in this behalf may—

(a) at all reasonable times, enter into and search any premises which he has reason to suspect, are being used for the purposes connected with, or conduct of, any prize chit or money circulation scheme in contravention of the provisions of this Act;

(b) examine any person having the control of, or employed in connection with, any such prize chit or money circulation scheme;

(c) order the production of any documents, books or records in the possession or power of any person having the control of, or employed in connection with, any such prize chit or money circulation scheme; and

(d) inspect and seize any register, books of accounts, documents or any other literature found in the said premises.

(3) All searches under this section shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

8. Forfeiture of newspaper and publication containing prize chit or money circulation scheme.—Where any newspaper or other publication contains any material connected with any prize chit or money circulation scheme promoted or conducted in contravention of the provisions of this Act or any advertisement in relation thereto, the State Government may, by notification in the Official Gazette, declare every copy of the newspaper and every copy of the publication containing such material or the advertisement to be forfeited to the State Government.

9. Power to try offences.—No court inferior to that of a Chief Metropolitan Magistrate, or as the case may be, Chief Judicial Magistrate, shall try any offence punishable under this Act.

10. Offences under this Act to be cognizable.—All offences punishable under this Act shall be cognizable.

11. Act not to apply to certain prize chits or money circulation schemes.—Nothing contained in this Act shall apply to any prize chit or money circulation scheme promoted by—

(a) a State Government or any officer or authority on its behalf; or

(b) a company wholly owned by a State Government which does not carry on any business other than the conducting of a prize chit or money circulation scheme whether it is in the nature of a conventional chit or otherwise; or

(c) a banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949), or a banking institution notified by the Central Government under section 51 of that Act or the State Bank of India constituted under section 3 of the State Bank of India Act, 1955 (23 of 1955), or a subsidiary bank constituted under section 3 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), or a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), or a Regional Rural Bank established under section 3 of Regional Rural Banks Act, 1976 (21 of 1976), or a co-operative bank as defined in clause (bii) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934); or

(d) any charitable or educational institution notified in this behalf by the State Government, in consultation with the Reserve Bank.

12. Transitional provisions.—

(1) Notwithstanding anything contained in this Act, a person conducting a prize chit or money circulation scheme at the commencement of this Act may continue to conduct such chit or scheme for such period as may be necessary for the winding up of the business relating to such chit or scheme, so however that such period shall not in any case extend beyond a period of two years from such commencement: Provided that the said person shall furnish to the State Government or to such officer as may be authorised by it in this behalf and to such office of the Reserve Bank as may be prescribed in such form and within such period as may be prescribed, full information regarding the chit or scheme along with a winding up plan prepared in accordance with the provisions of any rules that may be made by the State Government in this behalf under this Act: Provided further that if the State Government is satisfied, on an application made by the person conducting the prize chit or money circulation scheme, that the chit or scheme cannot be wound up within the period fixed in the winding up plan furnished to the State Government under the foregoing proviso, it may, in consultation with the Reserve Bank, permit such person to continue to conduct the business relating to the said chit or scheme for such further period as may be considered necessary having regard to the circumstances of the case and the interests of the members of the said chit or scheme.

(2) The State Government may, in consultation with the Reserve Bank, approve the winding up plan furnished under sub-section (1) with or without modifications or reject the same and may grant or refuse to grant permission to continue to conduct that chit or scheme: Provided that no such winding up plan shall be modified or rejected without giving an opportunity of being heard to the person who conducts such prize chit or money circulation scheme.

(3) If any person fails to furnish full information regarding the said chit or scheme along with its winding up plan in the form and within the period prescribed, he shall forfeit his right to continue the business relating to the said chit or scheme on the expiry of such period.

(4) Notwithstanding anything to the contrary contained in any agreement or arrangement entered into between any person conducting any such chit or scheme and the subscriber, the person conducting the chit or scheme shall, within such period as may be prescribed, refund the monies or the subscriptions collected till the date of default referred to in sub-section (3).

(5) If any person fails to comply with the provisions of sub-section (4), he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.

13. Power to make rules.—

(1) The State Government may, by notification in the Official Gazette and in consultation with the Reserve Bank, make rules for the purpose of carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for—

(a) the office of the Reserve Bank to whom full information regarding any prize chit or money circulation scheme may be furnished under the first proviso to sub-section (1) of section 12, and the form in which and the period within which such information may be furnished;

(b) the particulars relating to the winding up plan of the business relating to prize chits or money circulation schemes.

¹ [(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

14. Repeals and saving.—

(1) The Andhra Pradesh Money Circulation Scheme (Prohibition) Act, 1965 (Andhra Pradesh Act 30 of 1965), as in force in the State of Andhra Pradesh, and in the Union territory of Chandigarh and the Madhya Pradesh Dhan Parichalan Skeem (Pratishedh) Adhiniyam, 1975 (Madhya Pradesh Act 19 of 1975), are hereby repealed.

(2) Notwithstanding the repeal of any Act referred to in sub-section (1), anything done or any action taken under the provisions of any such Act shall, in so far as such thing or action is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the provisions of this Act as if the said provisions were in force when such thing was done or such action was taken and shall continue in force accordingly until superseded by anything done or any action taken under this Act.