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Blog 2021-06-16T12:46:43+00:00

Protection of faith

Filed on.Sub: Protection of faithBEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM WRIT APPEAL 2021 InWRIT PETITION No. 27219 of 2019 B (Against the order dated 05.10.2021 in WP(civil) 27219 of 2019 of a Ld. Single judge of this Hon’ble Court) Manu Kurian Thuruthel : Appellant /Addl. Respondent to be impleaded as R13 St.Mary’s Orthodox Syrian Church :Respondents/Petitioners & RespondentsMEMORANDUM OF WRIT APPEAL FILED UNDER SECTION 5 OF THE KERALA HIGH COURT ACT, 1958 AdvocatesMATHEWS J NEDUMPARA (M-185)(K/369/84)MARIA NEDUMPARA (K/1527/2019)ABDUL JABBARUDEEN M (K/0750/2018)806, KHCAA Chamber Complex,Near High Court of Kerala, Marine Drive,Kochi-682031,Mob:9820535428 BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM WRIT APPEAL 2021 In WRIT PETITION No. 27219 of 2019 B (Against the order dated 05.10.2021 in WP(civil) 27219 of 2019 of a Ld. Single judge of this Hon’ble Court) Manu Kurian Thuruthel : Appellant /Addl. Respondent to be impleaded as R13 St.Mary’s Orthodox Syrian Church :Respondents/Petitioners & RespondentsINDEXSl.No Pages SynopsisMemorandum of Writ AppealAffidavitCertified copy of the order dated 05.10.2021 in WP (civil) 27219 of 2019True copy of the WP (civil) 27219 of 2019True copy of the IA 1 /2021 in WP (civil) 27219 of 2019 Dated this the 21st day of December, 2020 Counsel for Appellant BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM WRIT APPEAL 2021 InWRIT PETITION No. 27219 of 2019 BManu Kurian Thuruthel : Appellant /Addl. Respondent to beimpleaded as R13 St.Mary’s Orthodox Syrian Church :Respondents/Petitioners & RespondentsSYNOPSISThe instant appeal is directed against the order of the Ld. Single judge (Hon’ble Mr. Justice [...]

October 24th, 2021|0 Comments

Ten myths of Indian Constitutional Law

-Mathews J. NedumparaIntroductionIn the NLC’s (National Lawyer’s Campaign for Judicial Transparency and Reforms) agenda, open selection of judges of High Courts and the Supreme Court by notification of vacancies and invitation and application of all eligibles, so too, references from all stake holders, finds the very first place. The reason is, simple, obvious; because the higher judiciary in India, today, is perceived to be a dynasty, not very different from that of the political parties, a phenomenon which is antithetical to the very concept of a constitutional democracy which guarantees not merely equality before law and equal protection of laws but equal opportunities in public employment, so too, of constitutional offices.Prior to independence, the high judicial offices of the chartered high courts and the federal courts were occupied by judges who were members of Indian civil service consisting substantially of the British. There was nothing like judicial dynasties, then. However, after the independence, slowly, a few families happened to dominate the Indian judiciary, the Bar and the Bench. Soon, things took a sea change after the judges 2 case, a judgment by which collegium system of appointment of judges came into vogue. Our constitution is one of the finest constitutions of the world. The Part III of the constitution embodies the principles contained in Magna Carta and Bill of Rights, so too, the 5th and 14th amendment to the American Constitution. The concept of federation and unified state find an excellent blend, taking with it the advantages of the both, [...]

October 24th, 2021|0 Comments

Who is responsible for demolition of Maradu homes – an injustice which has no parallel in history

Mathews J. Nedumpara Keralites across the breadth and width of the globe, nay, millions of people, with bated breath, watched five apartment buildings in Maradu, a prime location of Cochin surrounded by lakes and lush green, crumble down with a mushroom of dust being formed, as if an atom bomb has been dropped. While a few sadists, insane minds, knowing not what the ramifications are, celebrated, clapping their hands and beating drums, millions all over the world were deeply pained by the demolition, which was nothing but madness. They could not believe their eyes and they pondered why such madness was allowed to happen, bringing down world class apartments which were purchased by the flat owners out of the sweat of their brows. I write these few lines to tell the curious to know why such madness was allowed to happen in a democratic India and that too mandated by its Supreme Court. Sometimes truth is stranger than fiction. The reason I offered to many, at least at the first blush, may appear to be too remote. But I am sure, the unfortunate victims of the disaster, the flat owners, or at least those among them involved in the conduct of the case in the Supreme Court, will realize that what I state is not fiction, but hard reality. I hold the celebrated judgment of the Supreme Court in Kesavananda Bharati v. the State of Kerala (1973) Supp. SCR 1, popularly known as the fundamental right case, in which reversing [...]

October 24th, 2021|0 Comments

Demolition of Maradu homes, who will tell the Court that it went wrong?

Mathews J. Nedumpara I pen these few lines with great amount of pain and anguish. The Government of Kerala, in furtherance of an all party meeting convened by Shri Pinarayi Vijayan, Chief Minister of Kerala, engaged Shri Harish Salve, probably the highest paid lawyer in the country, to save 450 odd families of their homes, which were ordered to be demolished by a Bench of the Supreme Court headed by Hon'ble Shri Justice Arun Misra. The background of the case is fairly known to all. Stated in brief, the Supreme Court, in complete violation of the procedure contemplated under the Kerala Municipality Act read with the Kerala Panchayat Raj Act, appointed a Committee to report to it whether or not the CRZ-III norms are violated and ordered demolition of five world class apartment buildings within one month and report compliance. It appears that the Court failed to notice that the buildings were constructed years before and are in full occupation; that its order of demolition would render thousands homeless and that no Court is empowered to pass an order which will adversely affect those who are not party to the proceeding and, at any rate, without notice to them and without hearing them In a situation as the instant one, where a Court has ordered demolition of five multi-storied buildings in a proceeding in which the flat owners were not parties, without notice to them and without hearing them, and the judgment thus rendered not being res judicata, not binding [...]

October 24th, 2021|0 Comments

The Founding Fathers, by incorporating Articles 226 and 32, reintroduced the dual system of administration of justice which was abolished in England in 1875, having proved to be counterproductive

Mathews J Nedumpara98205 35428 Common people, often reassured by news reports where the High Courts under Article 226 and even the Supreme Court under Article 32 come to the rescue of common people who are denied justice by the government and its instrumentalities, are granted instant and hustle free justice institute writ petitions when they face similar injustice. Except for a few High Courts like that of Kerala where relief under the writ jurisdiction is granted without being confronted by questions as to the maintainability of the petition for the petitioner not having exhausted the “alternative remedies”, realise that reality is different from perception. In high Courts like the Bombay HC, Delhi HC, even Madras, Punjab & Haryana HC and Gujarat HC, of which I am fairly familiar, majority of the writ petitions are dismissed in limine on the ground of non-exhaustion of alternative remedy. I have often found lawyers, instead of advising their client to institute a civil suit, for the Civil Court is the court of plenary jurisdiction, competent, empowered and duty bound to adjudicate any dispute under the sun of a civil nature, unless barred, or where forums like the DRT, NCLT, Provident fund tribunal, etc. are created in substitution of the Civil Court, challenge the order of the HC in the Supreme Court under Article 136. Such SLPs are dismissed by one-line orders. This exercise would cost the litigant enormously, and many would give up their pursuit for justice. The few who still place hope in the judiciary would [...]

October 24th, 2021|0 Comments

Justice Arun Mishra seriously erred because a judgment does not become a judgment in rem merely because it arises out of a representative suit. For instance, a judgement in a suit between husband and wife for divorce, where divorce is granted is a judgment in rem, and where it is denied, it is a judgment in personam. The determinative factor is whether there is a change in title or status

In execution of the judgment in K.S Varghese, the Othrodox faction could capture the Kollenchery, Mannathur and Varikoli churches belonging to the Jacobite faction. The judgement in K.S Varghese was thus executed and nothing further remained. However, unfortunately, in the name of the judgment in K.S Varghese, the Orthodox faction proceeded to capture the churches of the Jacobite faction, obtaining orders for police protection from the Kerala High Court. It was at this juncture that I came into the picture and sought to point out the fundamental mistakes that unfortunately happened to be made. The contentions which I make are of pure jurisprudence, fundamentals. If I am wrong the Court need only record my contentions and state the reasons as to why the contentions are not tenable. However, I am faced with great hostility. The judges refuse to even record the contentions, let alone deal with it fairly (see Justice Devan Ramachandran’s judgment in R.F.A 570/2004 dated 2.6.2020). Had the Hon’ble judges recorded my contentions, which I believe are absolutely tenable for the Orthodox faction has not been able to offer any counter, for it is impossible for anyone to plead that the individual churches of the Jacobites would be bound by a judgment, be it the 1958, 2017 or 2019 judgement, where they were not parties at all. For the rule of res judicata to be applied the minimum conditions to be met are:a) The parties ought to be the sameb) Cause action ought to be the samec) The [...]

October 24th, 2021|0 Comments

Nedumpara’s letter to President, Kerala High Court Bar Association: An appeal for abolition of pernicious system of Designation of lawyers

4th January, 2019 To Sri Ramkumar,Senior Advocate. Copy to: President and Members of the Kerala High Court Advocates’ Association. Respected Sir, Sub: Designation of lawyers – insult to the members of the Association. I happened to come across the letter which you have addressed to the President and Members of the Executive Committee of the Kerala High Court Advocates’ Association at 6.43 a.m. today on its being forwarded to me by a very close friend of mine, a fellow sexagenarian. The word ‘insult’ in the caption of your letter captured my thought. By 9 O’clock, I received a call from a good old friend, who had applied for designation as a Senior Advocate along with almost 30 other lawyers, among whom are sexagenarians and septuagenarians in the Bar for 30 to 35 years, who had to suffer the ‘insult’ of their applications being rejected by the Full Court of the Kerala High Court consisting of Judges who are juniors at the Bar. Being deeply pained at the anguish of my friend, whose name I withhold, I called yet another friend of mine, who is a few years senior to me. For considerations of propriety, I withhold his name too. He was crestfallen; the sense of pain, insult and humiliation which he felt and which he conveyed to me, literally weeping, no words can explain. Sir, in your letter you have dealt with “canvassing, lobbying and favouritism; some of our retired Judges forming a coterie and engaging themselves in spiritual confabulation [...]

October 21st, 2021|0 Comments

Nedumpara’s suggestions to the SC on Video Recording of the court proceedings

IN THE SUPREME COURT OF INDIAORDINARY ORIGINAL JURISDICTION WP(C) NO. 861/2018IN THE MATTER BETWEENMathews J. NedumparaAnd OthersPETITIONERS Versus The Supreme Court of India and Others RESPONDENTS TO THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THEHON’BLE SUPREME COURT OF INDIA HUMBLE SUGGESTIONS BY THE PETITIONERS ABOVENAMED MOST RESPECTFULLY SHEWETH: The Audio-Video Recording of Judicial Proceedings is a measure which is very safe and easy to implement, as the Petitioners had directly witnessed the same in a Contempt of Court Proceedings at the Nagpur Bench of Bombay High Court, as Counsels, where it was implemented on mere application of the Contemnor without calling for any suggestions. Hence, there is nothing significant which needs to be suggested by the Petitioners.  All that is required is a declaration at the hands of this court that the right to life and the freedom of speech takes within its ambit Audio and Video Recording of the Proceedings of this Court, nay, all the Courts and Tribunals in this Country and access thereof and a consequential direction to set up cameras; nothing more nothing less. Nevertheless, since this Honble Court was pleased to call for our suggestions, we are duty bound to state a few ideas: The proceedings of the Courts, in hearing and deciding the disputes between the Parties before it, have to be recorded in the most truest, complete and durable manner. Our judiciary has evolved a long way, from the tablets of limestone to paper and pen, to the era [...]

October 19th, 2021|0 Comments

“RATIO” OF THE JUDGES 2 AND THE NJAC CASES

-Mathews J. Nedumpara The Supreme Court in Keshavanada Bharati held that the “basic structure” of the constitution is inviolable though fundamental rights could be violated. In Indira Nehru Gandhi and Minerva Mills it was held that from 24.04.1973, the validity of a statute has to be tested on the Basic Structure. Independence of Judiciary is one of the Basic features of the constitution. The independence of the judiciary is not about the independent discharge of the functions of a judge subsequent to his appointment but is all about the very appointment, i.e., who appoints. Who appoints the judges is the core of Independence of Judiciary.The constitutional protection of the tenure of a judge, so too his salary, emoluments and pensions, are of little consequence in preserving independence of the judiciary. Independence could be secured only when the judiciary has primacy in the appointments. Therefore, the constitution has to be re-written and ought to be given a meaning different than its original text. The constitution vested the power of appointment in the executive but made it obligatory that the CJI shall always be consulted in the appointment of the Judges of the Supreme Court, so too, in the appointment and transfer of Judges of the High Courts along with the Governor and Chief Justice of the State concerned. It has been held that since the core of Independence of judiciary is in the appointment, the expression, “consultation with CJI” shall mean not merely concurrence but the primacy of the opinion of [...]

October 18th, 2021|0 Comments

The Founding Fathers, by incorporating Articles 226 and 32, reintroduced the dual system of administration of justice which was abolished in England in 1875, having proved to be counterproductive

Mathews J Nedumpara98205 35428 Common people, often reassured by news reports where the High Courts under Article 226 and even the Supreme Court under Article 32 come to the rescue of common people who are denied justice by the government and its instrumentalities, are granted instant and hustle free justice institute writ petitions when they face similar injustice. Except for a few High Courts like that of Kerala where relief under the writ jurisdiction is granted without being confronted by questions as to the maintainability of the petition for the petitioner not having exhausted the “alternative remedies”, realise that reality is different from perception. In high Courts like the Bombay HC, Delhi HC, even Madras, Punjab & Haryana HC and Gujarat HC, of which I am fairly familiar, majority of the writ petitions are dismissed in limine on the ground of non-exhaustion of alternative remedy. I have often found lawyers, instead of advising their client to institute a civil suit, for the Civil Court is the court of plenary jurisdiction, competent, empowered and duty bound to adjudicate any dispute under the sun of a civil nature, unless barred, or where forums like the DRT, NCLT, Provident fund tribunal, etc. are created in substitution of the Civil Court, challenge the order of the HC in the Supreme Court under Article 136. Such SLPs are dismissed by one-line orders. This exercise would cost the litigant enormously, and many would give up their pursuit for justice. The few who still place hope in the judiciary would [...]

October 18th, 2021|0 Comments