#kerelahighcourt #highcourt #justice #law #seekingjustice Archives

15 Jan

Stray Dogs Issue to be heard on February 28: Supreme court.

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The Supreme Court of India has agreed to hear a case concerning the growing stray dog population in Kerala, which has become a major public safety concern. The Kerala government has requested permission to cull or euthanize stray dogs, while animal rights groups have opposed this measure.

Facts-

Following the Kerala government’s 2015 decision to eliminate stray dogs in response to a surge in dog attacks, a petition was filed in the Supreme Court of India. The Kerala State Commission for Protection of Child Rights (KSCPCR) subsequently filed an application to intervene in the proceedings, highlighting the numerous complaints it had received regarding the nuisance caused by stray dogs and the tragic instances of children being fatally bitten. The Commission further informed the Court of its suo moto cognizance of several such incidents.

The KSCPCR, in its application, drew the Court’s attention to the alarming number of dog bite incidents reported across the state, particularly those affecting children.

The Kannur district panchayat has also filed an application, stating that there are 28,000 stray dogs in the district and 30 dog bites reported daily. The panchayat is seeking permission to euthanize rabid or dangerous dogs. The commission mentioned that 5794 stray dog attacks were reported in 2019, 3951 cases in 2020, 7927 cases in 2021, 11776 cases were reported in 2022 and 6276 cases were reported up to June 19, 2023, in Kannur District.

The tragic death of a child named Nihal further underscored the escalating problem of stray dog attacks in Kerala. In its application, the Commission argued that unlike the docile nature of domesticated companions, stray dogs, when congregated, exhibit a propensity for aggression, rendering them a potential public safety hazard.

The Kannur district panchayat highlighted the particularly harrowing incident of Nihal, an autistic child who was fatally mauled by a pack of stray dogs on June 11. The subsequent inquest and autopsy revealed the horrific extent of the attack, with bite marks and scratches covering his body, including severe injuries near his neck and ear. Notably, this tragedy was not an isolated event, as a similar incident in Kottayam District tragically claimed the life of a 12-year-old in the previous year.

The Supreme Court is expected to hear the case in February 2024. The two-judge bench i.e., a divisional bench comprising of Justices J K Maheshwari and Sudhanshu Dhulia will be sitting for the final hearing. The SC will hear all the petitions related to curbing stray dog attacks in different states of the country including Kerela, Bombay, Karnataka, and Himachal Pradesh.

Arguments-

According to the World Health Organization (WHO), India accounts for 36% of the world’s rabies deaths, “causing around 18,000-20,000 deaths every year”. WHO also goes on to note that dog bites contribute “up to 99% of all rabies transmissions to humans”.

Data cited in the Indian Parliament reports that there have been nearly “16 million cases of stray dog bites between 2019 and 2022, an average of over 10,000 cases daily”.

On the other hand, Animal rights activists warn against “mass hysteria” surrounding dog bites, citing both fake news (e.g., student murder misattributed to dog attack) and animal cruelty (e.g., beatings) as consequences. How can we protect both people and stray dogs? The growing problem of stray dogs highlights the need for better government policies and animal rights actions.

Law-

Strays are currently governed under the Animal Birth Control (ABC) Rules 2023, which require them to be caught, neutered, vaccinated [for rabies], and released (CNVR) back into the community. These rules were first introduced in 2001 and amended in 2010, and once again in 2023. Except for a couple of amendments, the underlying principle of CNVR hasn’t changed to control the dog population.

Recent Cases-

Patna High Court demands answers from City Chief after a petition exposes cruel NGO awarded dog sterilization contract.
Deeming sterilization tenders insufficient, the Punjab & Haryana High Court commanded the Deputy Commissioner of Ambala to relocate stray dogs from the vicinity of the Judicial Complex, where judicial officers were exposed to “grave peril” and prevented from enjoying basic activities such as morning walks.
Citing increase in stray dog attacks in Kerala, especially against children, the Kerala State Commission for Protection of Child Rights (KSCPCR) has approached the Supreme Court seeking directions to curb the menace.
Orissa High Court Orders ₹10 Lakh Compensation For Father Of Minor Mauled To Death By Stray Dogs In 2016
The Karnataka High court on Wednesday directed the State government to give wide publicity to the guidelines regarding feeding of street animals and conflict resolution which suggest participation of residents.

Conclusion

The Supreme Court of India has scheduled a final hearing for February 28, 2024, to address the pressing issue of stray dog attacks and management in the country. This hearing culminates months of discussions and petitions concerning concerns from both residents facing threats from dog bites and animal welfare advocates highlighting the plight of stray dogs.

The court will aim to find a balanced solution that protects both public safety and animal welfare. The hearing is expected to draw significant attention and debate, as the issue poses complex challenges with strong emotions on both sides.

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Written by- Bhawana Bahety

5 Jan

Lack of Temporal proximity to prejudicial activity is a ground for quashing of detention order: Kerala High court.

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Case Title: Prabhulla P vs State Of Kerala

Case No: 3/1/2024

Decided on: WP(CRL.) NO. 852 OF 2023

Coram: The Hon’ble Mr. Justice A. Muhamed Mustaque & The Hon’ble Mrs. Justice Shoba Annamma Eapen

Facts of the Case

The detenu was detained invoking provision of the Kerala Anti Social Activities (Prevention) Act, 2007 in the year 2009. The detenu is under detention since 03.05.2023.

Counsel for the petitioner contended that the recent amendment to Section 13 of the NDPS Act precludes further detention under its terms for a year. This assertion stems from the petitioner’s earlier detention under the unamended Section 12 of the Kerala Anti Social Activities (Prevention) Act. This raises a legal question in the current proceedings.

The legal instrument of a detention order serves to curtail an individual’s freedom of movement and autonomy.

The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. He was released on 01.03.2023.

Legal Provision

Section 12 of Kerala Anti Social Activities (Prevention) Act, 2007:

Maximum period of detention – The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.

After the 2014 amendment , Section 12 was read as-

Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.

Section 13 of the Narcotic Drugs and Psychotropic Substances Act–

Special provisions relating to coca plant and coca leaves for use in the preparation of flavouring agent.—Notwithstanding anything contained in section 8, the Central Government may permit, with or without conditions, and on behalf of Government, the cultivation of any coca plant or gathering of any portion thereof or the production, possession, sale, purchase, transport, import inter-state, export inter-State or import into India of coca leaves for use in the preparation of any flavouring agent which shall not contain any alkaloid and to the extent necessary for such use

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti Social Activities (Prevention) Act, 2007?

Court decision and analysis

The court did not take into account the earlier detention order which was in the year 2009, for imposing maximum one-year detention after 31.12.2014. There is no embargo under the law to detain such persons, who was detained prior to 31.12.2014 for a period of six months.

The Detaining Authority issued the detention order on April 10, 2023, a considerable five months after the District Police Chief, Thiruvananthapuram Rural, submitted the preliminary report on January 13, 2023. Notably, the initial report by the Station House Officer had already been filed on December 22, 2022. No explanation has been provided for this significant delay.

Therefore, considering the aforementioned circumstances, The High Court of Kerela found that the necessary temporal proximity between the last prejudicial activity and the issued detention order was absent. Consequently, the impugned detention order was hereby quashed. The petitioner was released forthwith, barring any other legal reason for continued detention.

This Writ Petition was disposed of.

Written by- Bhawana Bahety

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5 Jan

Consent and subsequent actions binds defendant in compromise agreement: Kerala High court.

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Case Title: Ashiya Ummal vs S.N. Sathy

Case No: RSA NO. 247 OF 2023

Decided on: 3/1/2024

Coram: Hon’ble Mr. Justice A. Badharudeen

Facts of the Case

The plaintiff instituted the Suit for fixation of boundary, recovery of possession, and consequential injunction. During the pendency of the Suit, a compromise was entered into and accordingly, the decree was passed.

The counsel representing the 1st defendant contests the binding nature of the compromise, citing the lack of their client’s signature as a critical ground for invalidating the subsequent decree.

However, as per the learned counsel for the plaintiff 1^st defendant’s husband was a signatory. Therefore, it was pointed out that 1^st defendant, even after not being a signatory acted upon the compromise and received benefit out of the same. It was further pointed out that when the lawyer on behalf of the client signs a compromise without express authority to do so, the same is unlawful. Hence, the appeal must fail for the 1st defendant could not succeed in opposing the finality of the compromise.

In this case, after passing decree in terms of the compromise as on 16.1.2019, subsequently the 1st defendant filed an affidavit before the Munsiff Court on 02.03.2019 and claimed the amount in terms of clause 5 of the compromise petition. 1st defendant also did not dispute the said affidavit.

Legal Provision

Order XXIII Rule 3 of the Code of Civil Procedure, 1908 reveals the mode of recording compromise, It states that when the parties have made an arrangement to settle the dispute entirely or in part the court if it is satisfied shall pass the decree to such effect and record the same. The agreement should be legal, in writing and signed by the parties.

Issues

Whether a challenge against a compromise decree is permissible by way of an appeal?
If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise?

Court Analysis and Decision

With reference to the decision of the Apex Court in Prasanta Kumar Sahoo v. Charulata Sahu, [2023 (2) KLT 625 (SC)], it was clear that when the compromise is not signed by a party and signed by the concerned lawyer alone, without any express authority or without special vakalatnama executed in favor of the Advocate to sign in the compromise, the compromise signed by the Advocate for and on behalf of his client is unlawful.

In order to prevent the menace of multiplicity of litigations, Rule 3 of Order XXIII C.P.C. was amended. The Amendment Act inserted a requirement that all lawful agreements or compromise would be in writing and signed by the parties, to enable the court to satisfy itself about the authenticity of the compromise/agreement. The proviso empowers the court by whom a compromise decree was passed to determine the legality of the compromise, so arrived at between the parties.

The Apex court in Banwari Lal v. Smt. Chando Devi [1993 (1) SCC 581] : [AIR 1993 SC 1139]

categorically held that a party challenging a compromise decree can file an application under the proviso to Order XXIII, Rule 3 C.P.C. before the same court by which the said decree was passed.

The recent legal amendments under Order 23, Rule 3A have reshaped how parties can challenge a recorded compromise decree. While direct appeals or separate lawsuits are now off the table, a new path emerges through appeals against the final decree itself. This allows disgruntled parties to indirectly raise concerns about the compromise’s validity, essentially questioning the legitimacy of the entire process leading to the final judgment. This shift acknowledges the potential for disputes within the supposed agreement, ensuring legal avenues remain open, albeit subtly different from before.

The legal principle of estoppel precludes the 1st defendant/appellant from contesting the validity of the compromise agreement despite the absence of her signature. Having actively participated in the execution and reaped the benefits of the compromise, evidenced by the actions undertaken through her lawyer and the affidavit (R1.D), the appellant is estopped from revoking her consent. Consequently, the compromise binds the appellant, and her appeal is dismissed. Kerela High court held that The compromise shall bind the defendant, because she gave consent and acted upon it

Written by- Bhawana Bahety

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17 Nov

High Court of Madars observation on complaint lodged for the offences under Section 276CC of Income Tax Act, 1961 for non-filing of the income tax return.

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High Court of Madras observation on complaint lodged for the offences under Section 276CC of Income Tax Act, 1961 for non-filing of the income tax return.

Title : R.P.Darrmalingam v. Assistant Commissioner of Income Tax

Case No. : Crl.M.P.No.16630 of 2018

Decided on : 09.11.2023.

CORAM : THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

Introduction

Criminal Original petition is filed under Section 482 of Criminal Procedure Code, to call for the records relating to EOCC.No.574 of 2017 on the file of the Additional Chief Metropolitan Magistrate, (Economic Offences), Egmore, Chennai and to quash the same.

Fact of the Case

This criminal original petition has been filed to quash the proceedings in EOCC.No.574 of 2017 on the file of the Additional Chief Metropolitan Magistrate, (Economic Offences), Egmore, Chennai taken cognizance for the offence punishable under Section 276CC of Income Tax Act, 1961.

The respondent lodged complaint for the offences under Section 276CC of Income Tax Act, 1961 for non filing of the income tax return for the assessment year 2012-2013. The crux of the complaint is that the accused is an assessed on the file of the respondent.

Judgment and Case Analysis

No quarrel that once the assessment officer accepts the revised return filed under Section 153A, the original return filed under Section 139 abates and becomes non est. Therefore, no penalty can be levied under Section 271(1)(c) of the Income Tax Act. Whereas in the case on hand, there was concealment by the petitioner while filing his first return of income for the assessment year 2012-2013. In fact, the levying of penalty was already dropped in view of the order passed by the tribunal. However, the petitioner is now facing prosecution under Section 276CC of Income Tax Act. That apart, the mens rea of the petitioner is clearly established by the respondent and as such, the above judgment is also not helpful to the case on hand.

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Written by Nimisha Sunny

7 Nov

Kerela High Court how assessments have to be made in respect of building tax .

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Kerala High Court on how assessments have to be made in respect of building tax .

Title : E.K.ANIL v. TAHASILDAR & Others.

Decided on : 19^th October 2023

Case No. : WP ( C ) No.3848/2023

CORAM : THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

Introduction

The writ petition has been filed by the petitioner seeking to call for the records relating to Exts.P2 to P4 and to quash the same. Kerela High Court how assessments have to be made in respect of building tax and that separate building tax assessments have to be made in the name of very same person for all the buildings constructed or repaired by him, which attract liability.

Fact of the Case

The petitioner is the owner of 17 independent buildings having separate building numbers. After completion of construction of five out of 17 buildings, assessment was completed separately in the year 2009 as per Ext.P1. Thereafter, on completion of construction of the remaining 12 independent buildings, as per Ext.P2 assessment was made reckoning the 17 buildings as a single unit. Challenging this, though the petitioner filed an appeal before the second respondent, it was dismissed by Ext.P3 order. Aggrieved by Ext.P3, the petitioner filed a revision before the respondent, which was also dismissed as per Ext.P4 proceedings. Hence, the petitioner has approached this Court challenging Exts.P2 to P4.

Court Analysis and decision

Admittedly, the case of the petitioner is that the buildings have been given separate numbers considering the same as separate buildings. The respondents have no case that the buildings are adjoining, or they have a common wall. They only say that they are functionally the same. A person may construct separate buildings in the same property, but there is no provision in the Act for clubbing together these buildings, which are otherwise separate. Though the buildings are constructed for the purpose of renting out, each building is separate and hence, can be rented out individually. The charge is on the building as such and not with reference to its owner. Therefore, the 17 buildings, which are structurally different with separate numbers, must be assessed separately. Hence, I believe the assessment as per Ext.P2 assessing the buildings as a single unit is not legally sustainable and is liable to be set aside.

Accordingly, the writ petition is disposed of as follows; a)Exts.P2 to P4 are set aside. b)The assessing authority is directed to reconsider the assessment treating all the 17 buildings as separate units, within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner shall produce a certified copy of this judgment along with the writ petition before the competent authority for compliance.

Written by Nimisha Sunny