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Kerala High Court Expands Spousal Testimony Rights in Civil Cases.

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Recently, the Kerala High Court ruled in Smitha v. Anil Kumar & Ors that spouses may testify on each other’s behalf during civil case trial proceedings under Section 120 of the Indian Evidence Act. Justice Kauser Edappagath noted that a husband and wife are competent to offer evidence under Section 120 of the Indian Evidence Act if it comes to both their own and their spouse’s knowledge.

The woman whose application was being considered by the court had filed a civil claim that was still pending in a trial court. The woman, who was the trial court’s plaintiff, had asked for authorization to call her husband as a witness or present evidence on her behalf. However, approval to do this was rejected by the trial court. According to the trial court, no one could be permitted to testify on behalf of another, and further stated that the husband may only be questioned as a witness for the plaintiff. The plaintiff filed an application with the High Court challenging the same. The counsel for the plaintiff claimed that the trial court erred in its ruling because it disregarded Section 120 of the Indian Evidence Act, which expressly permits spouses to testify on behalf of one another in civil cases. The husband was a crucial witness who may offer important testimony that would be pertinent to the case, the High Court was informed. In reaching a decision, the High Court reviewed Section 120 of the Indian Evidence Act, which stipulates that “In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses…”

The High Court noted that even in the absence of a power of attorney, this clause supersedes the standard procedural standards and permits non-litigating spouses to testify in lieu of their litigating spouses. Because of this, the High Court disapproved with the trial court’s conclusion in this regard and overturned the decision to deny the plaintiff’s request for her husband to testify in her place.

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Written By – Gnaneswarran Beemarao

 

 

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The Kerala High Court dismisses Writ as Petitioner fails to show any locus standi seeking to maintain the writ as PIL

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CASE TITLE – Vinod Mathew versus the Union of India & Ors.

CASE NUMBER – WP(C) NO. 17179 OF 2024

DATED ON – 20.05.2024

QUORUM – JUSTICE GOPINATH P. & JUSTICE SYAM KUMAR V.M.

FACTS OF THE CASE

“The prayers sought in this Writ Petition, filed as a public interest litigation, are as follows:

  1. To issue a writ of mandamus or any other writ, order, or direction directing respondents Nos. 2 to 4 to consider and take action on Ext.P3 representation as per law within a time limit fixed by the Hon’ble Court, in the interest of justice.
  2. To issue a writ of mandamus or any other writ, order, or direction directing respondents Nos. 1, 6, and 7 to consider and take action on Ext.P5 representation as per law within a time limit fixed by this Hon’ble Court, in the interest of justice.
  3. Such other writ, orders, or directions deemed fit on facts and in the interest of justice.”

The petitioner claims that a money heist occurred within the jurisdiction of Kodakara Police Station, and that Crime No.146 of 2021, dated 07.04.2021, has been registered in that station. According to the petitioner, because the heist involves hawala and money laundering with political overtones, he has filed Ext.P3 representation dated 24.04.2024 and Ext.P5 representation dated 28.04.2024 with the relevant respondents, seeking the registration of a case under the Prevention of Money Laundering Act, 2002. The petitioner expresses disappointment that the concerned respondents have taken no action on his representations. Given the nature of the crime, which he believes has ramifications for the nation’s economic security, he has filed this Writ Petitions, seeking the aforementioned prayers.

 

 

 

 

ISSUES

Whether the petitioner has sufficient standing to maintain the Writ Petition and whether the petition serves a genuine public interest or is politically motivated.

 

CONTENTIONS BY THE PETITIONER

The petitioner alleges that the heist has significant ramifications for national economic security. Representations seeking action under the 2002 Act were made but were not acted upon, leading to the Writ Petition. The petitioner is citing, Dr. P. Nalla Thampy Thera v. Union of India, for a flexible approach to locus standi in public interest litigations.

CONTENTIONS BY THE RESPONDENT

Respondents 2 and 3 have in their statement, challenged the locus standi of the petitioner to prefer the Writ Petition in a matter which essentially has criminal law implications. The statement also reveals that based on FIR No.146 of 2021 dated 07.04.2021 of Kodakara Police Station and the Final Report filed therein by the Police, an ECIR/KCZO/11/2023 dated 30.01.2023 has been registered by the Enforcement Directorate under the Act, 2002 and that the matter is under active investigation. It has been stated therein that several persons have been questioned and their statements recorded. That effective steps are being presently undertaken by the Enforcement Directorate to ascertain the proceeds of crime including the money trail and that meticulous investigation is required in cases of such nature to find out the money trail, the proceeds of the crime and the persons involved in the money laundering case, are also pointed out by respondents 2 and 3 in their statement. The Enforcement Directorate has through the said statement sought dismissal of the Writ Petition at the very threshold on the ground of maintainability and lack of locus standi in the petitioner. Respondents 1 and 5 have in their statement contended that the Writ Petition is not maintainable and that no public interest is involved in the matter. It is alleged by them therein that the Writ Petition has been filed with political interest and ulterior motives by the petitioner who is admittedly the State President of a political party. It is also averred therein that Ext.P2 Final Report clearly reveals that the State Police has completed the investigation and has filed the Final Report before the jurisdictional Magistrate who has taken cognizance of the matter. Respondents 1 and 5 thus seek dismissal of the Writ Petition on the ground that a public interest litigation is not maintainable in a criminal matter and that the petitioner is only a stranger who is in no way connected with the alleged crime.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’able High Court of Kerala finds that the petitioner has failed to reveal any locus standi to prefer or maintain the above Writ Petition as a public interest litigation. The objections raised by the respondents in their statements regarding lack of locus standi in the petitioner has legal merit and are accordingly accepted and upheld. The court is convinced that even if we were to hold that the Writ Petition is maintainable at the instance of the petitioner, the reliefs sought for cannot be granted.  Ext.P3 representation is addressed to officials of the Enforcement Directorate seeking registration of a case under the Act, 2002, against a named individual. There is also a prayer in Ext.P3 that the named individual and his associates should be arrested. The prayer for consideration of Ext.P3 by the competent authority under the 2002 Act is based on a misconception of the scope of the 2002 Act. After analysing the provisions of the Prevention of Money Laundering Act, 2002, the court made it clear that the Enforcement Directorate is not an investigating agency stricto sensu. The command and mandate of the Enforcement Directorate under the 2002 Act is to ensure that no person benefits from the proceeds of crime derived out of the commission of a scheduled offence and to see that such property is confiscated to the State. Therefore, in the facts of this case there cannot be any direction issued to consider Ext.P3 which has been filed with a prayer to register a case and arrest certain individuals for that is not the mandate of the Enforcement Directorate. Moreover, the statement filed on behalf of respondents 2 and 3 filed in this case indicates that the Enforcement Directorate has registered an ECIR/KCZO/11/23 in the above matter and the same is being enquired into as well. Thus the court sees no reason to direct the consideration of Ext.P3. The second relief sought in the Writ Petition is for Ext.P5 representation, which requests action under Section 6 of the National Investigation Agency Act of 2008 (NIA Act). Section 6 of the NIA Act, 2008, states that the process begins with the filing of a FIR under Section 154 of the Criminal Procedure Code (Cr.P.C.) for an offence listed in the Schedule to the NIA Act, 2008. A review of the Ext.P2 Final Report reveals that no offences listed in the Schedule to the NIA Act, 2008, were committed. The petitioner has incorrectly invoked Section 6, as the preliminary requirements for its application—namely, the commission of a scheduled offence and the filing of a FIR—have not been met. Hence for the above mentioned reasons the writ is dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Kerala HC cancels Patta and upholds denial of Resort license in Cardamom Hill Reserve Encroachment Case

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CASE TITLE – Jiji Zacharia & Anr. v. The Commissioner of Land Revenue & Ors.

CASE NUMBER – WA No. 918 OF 2023 & WP (C) No. 26746 OF 2020

DATED ON – 18.01.2024

QUORUM – Justice A. Muhamed Mustaque & Justice Shoba Annamma Eapen

 

FACTS OF THE CASE

The matter is related to cancellation of Patta and transfer of registry in respect of the land comprised in survey No.34/1 having an extent of 2.62 acres of Chinnakanal Village, Udumbanchola Taluk in Idukki District. A learned Single Judge of this Court heard the matter relating to the cancellation of Patta in W.P.(C) No.6954/2010 and affirmed the decision of revenue to cancel the Patta. This is how the writ appeal was filed. In the land in question, a resort is being run, namely, Green Jungle Resort. Chinnakanal Grama Panchayat refused to issue the license for running the resort. Accordingly, W.P. (C) No.26746/2020 was filed. The Tahsildar of Udumbanchola Village initiated proceedings for cancellation of the Patta as against Joy Thomas alleging that Patta had been illegally obtained. He cited six reasons in his show cause dated 10/4/2008 which reads as follows: 1) Application details are not found in Application Register and Assignment Register. 2) No Chalan or other receipts towards payment of land value and other charges are found in the file. 3) Date is not entered in the Office Сору оf Patta. 4) The published copy of 12(1) notice at Taluk Office is not available in the file. 5) In the Mahassar the land is described as CHR. 6) The date of application for assignment was 19.09.1977, and the date of order of assignment on registry was 22.4.1978. But the Patta is seen issued on 20.3.1993 only, after a lapse of 15 years without assigning any reason for the delay.

 

ISSUE

Whether the Patta obtained by Joy Thomas was obtained by lawful means.

LEGAL PROVISIONS

  1. The Land Assignment Rules, 1964 primarily deal with the distribution of government land in Kerala, India, to eligible individuals and families.

  1. The Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 1-1- 1977) Special Rules, 1993, primarily deal with assigning government forest land to individuals who occupied it before January 1, 1977.

 

CONTENTIONS BY THE PETITIONERS

The learned counsel for the petitioners submitted that the Patta bears the seal of the competent authority and Patta cannot be cancelled for the reason that application details are not found in the application register and challan receipts are not found in the file. It was further argued that though the Land Revenue Commissioner in revision entered a finding that the land is situated in Cardamom Hill Reserve, however, such a finding was not entered by the Tahsildar at the first instance. Therefore, it was argued that the validity of the impugned order before the Revisional Authority cannot be supplemented by fresh reasons.

 

CONTENTIONS BY THE RESPONDENTS

The learned Special Government Pleader submitted that the land in question is situated in Cardamom Hill Reserve and in respect of land in Cardamom Hill Reserve, land cannot be assigned unless it is included in the list of assignable lands prepared pursuant to joint verification.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Kerala observed that the land is situated in Cardamom Hill Reserve. The alleged mahazar produced in this matter by the parties show that it is Cardamom Hill Reserve. The learned Special Government Pleader also pointed out that the land in question is indeed a Cardamom Hill Reserve. Therefore, it is impossible to include it in the assignable list in the year 1977 for assignment of land under the Land Assignment Rules, 1964. In the statement filed by Joy Thomas, he also admits that the land is in Cardamom Hill Reserve puramboke, to mean that it is unfit for cardamom cultivation. In respect of converted land in Cardamom Hill Reserve where cardamom is cultivated, Special Rules 1993 would alone be applicable for claiming assignment by an encroacher. To claim assignment under the Special Rules 1993, he has to prove that the encroachment was prior to 1/1/1977, and the land has been included in the list of assignable lands. But in the present case, the parties have no case that the assignment was in accordance with the Special Rules 1993. In any way, the High Court was of the view that the petitioner cannot claim assignment of land under the Special Rules, 1993 for the reason that it was not included in the list prepared under Special Rules 1993. They stated that Joy Thomas was not eligible to apply under the Land Assignment Rules, 1964 as he was having 4 acres of land and his income was not proved to be less than Rs.10,000/-. It was in this background that the High Court was confident in stating that the patta was illegally obtained by Joy Thomas with the connivance of public officials or might have been fabricated. After which, the Hon’ble High Court proceeded to dismiss the Writ Appeal and also the Writ Petition filed by the parties challenging the refusal to issue the license to run the resort.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Judicial Determination of Compensation for Arbitrary Land Acquisition in the Kottayam Corridor Project: Ensuring Fair Remuneration under LARR Act 2013: Kerala High Court

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Judicial Determination of Compensation for Arbitrary Land Acquisition in the Kottayam Corridor Project: Ensuring Fair Remuneration under LARR Act 2013: Kerala High Court

Case title: R. ASOKAN & ORS VS State of Kerala & ORS
Case no.: W.P. (C) NO.26234 of 2023
Dated on: 19th April 2024
Quorum: Justice Hon’ble Mr. Justice Viju Abraham.

FACTS OF THE CASE
The writ petition is filed seeking to declare that the action on the part of the respondents in acquiring the properties of the petitioner for the ‘Kottayam Corridor Project’ without following due process of law and without payment of compensation amount is arbitrary, illegal and violative of the fundamental rights and constitutional rights guaranteed to the petitioner under Articles 14,19,21 and 300A of the constitution of India and for other consequential reliefs. Petitioners are absolute owners in possession and enjoyment of different extents of land in Nattakam and Panachikkadu Village in Kottayam District, as is evident from Exts.P1 to P4. The 1st respondent formulated a project by the name ‘Kottayam Development Corridor’ as part of a larger proposal for the development and expansion of the town. The 1st respondent after realizing that such project would require full co-operation and voluntary surrender by the land owners, called for a meeting on 08.10.2011 and on the basis of the promises and assurances given by the respondents that their demand for conversion of the remaining extent of land after the surrender, would be accepted, the petitioners granted permission for effecting construction in their property and surrendered. By Ext.P5 minutes of the meeting which was attended by the Minister and the other officials wherein it was reiterated that the land owners surrendering the lands will be permitted to convert an equal extent of their remaining lands and that exemption will be granted for effecting changes in the BTR records to enable change in the zoning for carrying out the project. While so, Ext.P6 order was issued by the 1st respondent stating that those land owners who have surrendered their whole extent of land will be allotted with Government land to an extent of 50% of the total surrendered land and such of the land owners who have surrendered a portion of their holdings will be allowed to convert paddy land (excluding wetland) to an extent of 50% of the land which they have surrendered to State Government. Petitioners submit that a conjoint reading of Exts.P5 and P6 would clearly denote that respondent No.1 reneged on its initial promise to the landowners and instead of allowing them to convert an equal extent of the surrendered property for construction, the new order stipulated that the landowners including the petitioners herein would only be allowed to convert 50% of the surrendered land for construction purposes. While contempt of court proceeding was pending, the 1st respondent issued Ext.P8 order holding that change of character of remaining lands of persons who have surrendered portions of their lands for road widening cannot be permitted as the same will be in violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008.

CONTENTIONS OF THE APPELLANT
The Petitioners submitted that action on the part of the respondents in taking over possession of their property without taking recourse to acquisition proceedings or following due process of law is arbitrary and violative of the constitutional rights of the petitioners guaranteed under Article 300A of the Constitution. In the said circumstances, the petitioners have approached this Court. Despite the unilateral modification, petitioners decided not to raise any objection against Ext.P6. Even thereafter, no action was taken from the side of the 1st respondent. And further submitted that a conjoint reading of Exts.P5 and P6 would clearly denote that respondent No.1 reneged on its initial promise to the landowners and instead of allowing them to convert an equal extent of the surrendered property for construction, the new order stipulated that the landowners including the petitioners herein would only be allowed to convert 50% of the surrendered land for construction purposes.

CONTENTIONS OF THE RESPONDENTS
The respondent submitted that the petitioners have handed over lands for the Kottayam Corridor Project based on the G.O. (Rt)No.5925/2015/RD dated 13/11/2015, on condition that those who handover land for the Kottayam Corridor Project will be allowed to reclaim paddy land (except wetland) equal to 50% of the extent of land handed over to Government and those who handover their whole extent of land will be given land equal to 50% of the land transferred to Government but as per the G.O.(Rt.)4064/2018/RD dated 04.10.2018, the benefit earlier granted was cancelled and those persons who handed over land for Kottayam Corridor Project will be compensated for the exact extent of land they have actually surrendered at the rate of Market Value which was prevalent at the time of surrendering of their land by fixing land value as per LARR Act, 2013. It is also stated that in the case of the petitioners who have surrendered large extents of their land for the Kottayam Corridor Project, the benefit of G.O.(Rt.)4064/2018/RD dated 04/10/2018 will be made applicable and that those persons who handed over land to Kottayam Corridor Project would be compensated for the exact extent of land they have actually surrendered at the rate of Market Value which was prevalent at the time of surrendering of their land by fixing land value as per LARR Act, 2013 and the same will be done on the basis of negotiation or on payment the value of land at the time of taking possession of the land for the project.

ISSUES
• Whether respondent should initiate proceedings as per the LARR Act 2013 and pay compensation in accordance with the provisions of the said Act?

LEGAL PROVISIONS
Article 14 of the Indian Constitution 1950: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 300(A) of the Indian Constitution 1950: That a person can be deprived of his property only through an Act passed by the Parliament/State Legislature and not by executive order or fiat
Article 21 of the Indian Constitution 1950: Protection of Life and Personal Liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
44th Constitution Amendment Act: The government enacted the 44th Amendment Act in 1978 to reverse some modifications made under the 42 Amendment Act of 1976. It was passed to ensure that everyone has the same right to choose their type of government.

COURT’S ANALYSIS AND JUDGEMENT
The petitioners surrendered their land as early as in 2015 only on an assurance given, as evident from Ext.P5 that they would be permitted to convert equal extent of land that they have surrendered. Thereafter, the Government retracted from their promise and imposed a further condition as per Ext.P6. Even Ext.P6 was modified by the Government by Ext.P8 order wherein they have given away all the promises given to the petitioners and ordered that the land will be acquired as per the provisions of LARR Act, 2013 fixing the land value as on the date of surrender. The right to property was initially a fundamental right guaranteed as per the Constitution of India, by the 44th Constitution Amendment Act, the said right is no longer a fundamental right but it is still a constitutional right and a part of human right. Though democracy governed by the rule of law, the State cannot deprive a citizen without the sanction of law. The facts of the present case reveal that the land was taken over from the petitioners without paying any compensation solely based on the undertaking given to the petitioners regarding certain benefits to be extended to the petitioners as is evident from Ext P5 and P6, the Government has even retracted from the said promises and the present stand taken as per Ext P8 order and as per the counter affidavit is that they will be granted compensation as per LARR Act 2013 at the rate of market value which was prevalent at the time of surrendering of their land.
From 2015 onwards, the land is in possession of the Government and the same has been utilized for the ‘Kottayam Corridor Project’ without even paying any compensation till this date. In the said backdrop, the question to be considered is as to whether the stand taken by the Government that the petitioner will be paid compensation based on the value of the land as on the date of the surrender of the property is legally sustainable or not. Taking into consideration the fact that the property was taken over almost a decade back without giving a single penny towards compensation, the decision now taken to acquire the land fixing the land value as on the date of taking possession will cause serious hardships to the petitioners. I am of the opinion that the same will not be adequate compensation in view of the fact that petitioners will not be able to purchase now even a small extent of land which the petitioners could have purchased had the compensation amount been given at the time of taking possession itself. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. Yet another aspect to be considered is that in the matter of taking over the property of a citizen, the authorities are bound to follow the procedure established by law. When the authorities are given power under the LARR Act 2013 to acquire the land, they are bound to follow the procedures prescribed therein, if not, the taking over of the property becomes arbitrary. On the basis of the same, the award will be passed in accordance with law, at any rate within an outer limit of 3 months from the date of receipt of a copy of the judgment and thereafter, the compensation amount/award amount shall be paid to the claimants/petitioners along with all statutory benefits within a further period of one month. Since the property has already been taken over and a road has been formed long back, it is made clear that the proceedings now directed to be initiated by this court as per the provisions of the LARR Act 2013 including issuance of Section 4 notification for the purpose of ascertaining the land value as on the date of the said notification and the passing of the award are intended only for fixing adequate compensation to be paid to the petitioners and therefore it is made clear that the proceedings shall be treated as deemed acquisition proceedings and only steps provided as per the LARR Act 2013 that are required for fixation of adequate compensation alone need be initiated by the respondents. The petitioners will be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired.

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Judgement Reviewed by – HARIRAGHAVA JP

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The Kerala High Court ruled that employer-issued circulars cannot restrict an employee’s ability to receive treatment from the hospital of their choice.

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Case Title: THE AREA MANAGER, FOOD CORPORATION OF INDIA Versus SHRI. P.T.RAJEEVAN

Case No: MFA (ECC) NO.52 OF 2018

Decided on: 30th April , 2024

Quorum: HON’BLE MR. JUSTICE G.GIRISH

Facts of the case

The respondent, Shri P.T. Rajeevan, worked as a head load worker for the appellant, Food Corporation of India (FCI). After an accident in 2014, he sustained injuries and had to pay ₹35,001 in hospital bills.

Issues

1. Can an employer’s circulars restrict an employee’s ability to receive medical care at a hospital of their choosing?

Legal Provisions

The issue concerned the interpretation of Employees’ Compensation Act, 1923, Section 4(2A), which addresses the payment of an employee’s actual medical expenses for treating injuries sustained while on the job.

Appellant’s Contentions

As mandated by Circular No. 10/2005, the respondent was not treated at one of the hospitals affiliated with FCI, hence the appellant, FCI, argued that the medical expenditures should not be paid.

Respondent’s Contentions

The respondent contended that rather than using the Employees’ Compensation Commissioner’s (ECC) figure of ₹20,000, the compensation ought to have been computed using his true monthly income of ₹29,500. In addition, he argued that, notwithstanding the employer’s guidelines, he was entitled to receive medical care from any facility of his choosing.

Court Analysis and Judgement

The Kerala High Court ruled that employer-issued circulars cannot restrict an employee’s ability to receive treatment from the hospital of their choice. The court noted that no circular could supersede the social welfare statute known as the Employees’ Compensation Act. The court determined that the appellant’s challenge to this award was without merit and affirmed the ECC’s decision to pay the medical expenditures.

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Judgement Analysis Written by – K.Immey Grace

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