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Kerala High Court Weekly Round-Up: April 22 – April 28, 2024
Rubayya Tasneem
28 April 2024 12:30 PM GMT
Nominal Index [Citations: 2023 LiveLaw (Ker) 256-270]Cherian Varkey Construction Company (Pvt.) Ltd. and ors. v. State of Kerala and ors. 2024 LiveLaw Ker 256 Jasmin K v State Bank of India 2024 LiveLaw Ker 257Adv K Praveen Kumar v The Election Commission of India 2024 LiveLaw Ker 258Jose Joseph and ors. v. State of Kerala and ors. 2024 LiveLaw Ker 259 Thomas @ Manoj EJ v. Indu S 2024 LiveLaw...
Nominal Index [Citations: 2023 LiveLaw (Ker) 256-270]
Cherian Varkey Construction Company (Pvt.) Ltd. and ors. v. State of Kerala and ors. 2024 LiveLaw Ker 256
Jasmin K v State Bank of India 2024 LiveLaw Ker 257
Adv K Praveen Kumar v The Election Commission of India 2024 LiveLaw Ker 258
Jose Joseph and ors. v. State of Kerala and ors. 2024 LiveLaw Ker 259
Thomas @ Manoj EJ v. Indu S 2024 LiveLaw Ker 260
Groupl Services Private Limited vs Dr. Sunil Vsudevan and Anr. 2024 LiveLaw Ker 261
Groupl Services Private Limited vs Dr. Sunil Vsudevan and Anr. 2024 LiveLaw Ker 262
Avani Bansal v The Election Commission of India 2024 LiveLaw Ker 263
Varkala Kahar v. The Election Commission of India and Ors. 2024 LiveLaw Ker 264
Dr. M. R. Saseendranath V State of Kerala 2024 LiveLaw Ker 265
State of Kerala v Narendra Kumar & Another 2024 LiveLaw Ker 266
Nijo Varghese v Transport Commissioner 2024 LiveLaw Ker 267
Cherplassery Co-Operative Hospital Ltd v State of Kerala 2024 LiveLaw Ker 268
Modern Food Enterprises Private Limited Versus Union Of India 2024 LiveLaw Ker 269
P. Gopalakrishnan @ Dileep v. XXXX 2024 LiveLaw Ker 270
Judgements/Orders This Week
Case Citation: 2024 LiveLaw Ker 256
Case Title: Cherian Varkey Construction Company (Pvt.) Ltd. and ors. v. State of Kerala and ors.
Case Number: WA No. 44 of 2021, WP(C) No. 23696 of 2023, WP(C) No. 16921 of 2023
The Kerala High Court has rejected a petition challenging the government orders that grant preference to labour contract societies, stating that the “focus of the executive order, though ultimately related to the award of the contract, is essentially a focus to promote community interest consistent with the policies of the welfare State. Therefore, individual contractors cannot claim parity of treatment with co-operative entities".
The court went on to add that "in the absence of any fundamental right that can be claimed by the individual contractors, the rest is a matter of State policy and where no parity can be claimed as the object of differentiation is not in recognising individual interest but rather the larger community interest”.
A division bench consisting of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen heard the matter.
Citation: 2024 LiveLaw Ker 257
Case Title: Jasmin K v State Bank of India
Case Number: WP(C) NO. 11797 OF 2018
The Kerala High Court has held that a secured creditor cannot proceed with recovery measures under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act after it chose to file a civil suit seeking recovery of dues, which got dismissed.
Justice Easwaran S. stated that the Bank cannot initiate recovery proceedings by ignoring the civil court's judgement that there was no legally recoverable debt.
“….once an adjudication by the civil court has taken place ending in dismissal of the suit finding that there is no debt due from her, necessarily, it has to be held that the secured creditor is disentitled from proceeding further with measures under the Securitisation Act, since there is no legally recoverable debt.”
In the facts of the case, the Court found the civil suit was adjudicated and dismissed on the finding that there were no pending dues.
Citation: 2024 LiveLaw Ker 258
Case Title: Adv K Praveen Kumar v The Election Commission of India
Case Number: WP(C) 15968/2024
The Election Commission of India filed a statement dated April 18, 2024 as an undertaking before the Kerala High Court stating that all safety measures and steps have been taken to ensure a free and fair election in all the parliamentary constituencies in India, including Vadakara parliamentary constituency.
The statement was filed by the ECI in a writ petition filed by Advocate Praveen Kumar, the Chief Election Agent of Indian National Congress candidate Shafi Parambil alleging voter fraud at the instance of the Communist Party of India (Marxist), in the Vadakara parliamentary constituency. The writ petition was thus filed seeking video recording of the polling process and deployment of central forces in the Vadakara constituency, where the polling is set for the 26th of this month.
Justice Shoba Annamma Eapen disposed of the writ petition on the undertaking filed by the ECI and observed thus:
“Accordingly, the writ petition is disposed of recording the statement dated 18.04.2024, the communication dated 18.04.2024 and the undertaking of the learned Standing Counsel that they will strictly follow the aforesaid arrangements, while conducting the election scheduled to be held on 26.04.2024.”
Case Citation: 2024 LiveLaw Ker 259
Case Title: Jose Joseph and ors. v. State of Kerala and ors.
Case Number: WP(C) No. 14477 of 2024
The Kerala High Court has directed the screening committee to review their order directing for the surrender of arms which were issued to licensed holders under the Arms Act.
While allowing the petition, a single judge bench of Justice N. Nagaresh stated that “Unless the surrender of Arms is reasonably necessary in the light of the parameters provided by the Election Commission, there cannot be blanket directions to surrender Arms”.
The petitioners, who were issued a license under the Arms Act to hold arms, were challenging an order of the screening committee constituted for the surrender of arms due to the impending Lok Sabha Elections 2024.
Case Citation: 2024 LiveLaw Ker 260
Case Title: Thomas @ Manoj EJ v. Indu S
Case Number: OP (FC) No. 674 of 2023
The Kerala High Court has upheld an order of the Family Court which stated that in child custody matters, it is open to the parties to approach the court and seek modification of the order if there is any change of circumstances. The Family Court added that the order passed initially cannot be said to be final, stating that the doctrine of res judicata is not applicable in child custody matters.
While dismissing the petition challenging the Family Court order, a division bench of Justice Raja Vijayaraghavan V and Justice PM Manoj reiterated that “the Courts have the authority to modify custody orders if there are changes in circumstances that affect the well-being of the child. Even when orders are based on agreement/understanding between parents, they can be revisited if the situation changes and it's deemed necessary for the welfare of the child”.
Citation: 2024 LiveLaw Ker 261
Case Title: Groupl Services Private Limited vs Dr. Sunil Vsudevan and Anr.
Case Number: ARB.P. NO. 5 OF 2023
The Kerala High Court single bench of Justice G. Girish held that the appointment of a sole arbitrator by the Government of Kerala violated Section 12(5) of the Arbitration and Conciliation Act, 1996, as well as the precedent set by the Supreme Court in the Perkins Eastman case.
The court held that the Government of Kerala being the holder of 99.99% of the equity shares with voting rights of a company had an interest in the dispute. Consequently, it held that this inherent interest made the Government of Kerala disqualified under Section 12(5) read with the Seventh Schedule of the Arbitration Act to appoint the sole arbitrator.
Citation: 2024 LiveLaw Ker 262
Case Title: Groupl Services Private Limited vs Dr. Sunil Vsudevan and Anr.
Case Number: ARB.P. NO. 5 OF 2023
The Kerala High Court single bench of Justice G. Girish held that the exemption provided for under the proviso of Section 12(5) of the Arbitration and Conciliation Act applies only in cases where there is a waiver explicitly agreed upon in writing by the parties involved.
Section 12(5) provides that any person having a relationship with the parties, counsel, or subject matter of the dispute falling under the categories specified in the Seventh Schedule is ineligible to be appointed as an arbitrator.
The court held that an appointment of the arbitrator in violation of Section 12(5) of the Arbitration Act itself is void ab initio and neither estoppel nor waiver given under any law applies against the party contesting the appointment.
Case Citation: 2024 LiveLaw Ker 263
Case Title: Avani Bansal v The Election Commission of India
Case Number: WP(C) 16410/2024
Ahead of the upcoming General elections, the Kerala High Court today dismissed a public interest litigation alleging that no action has been taken on the complaint that a false affidavit has been filed along with the nomination paper by BJP leader and Union Minister Rajeev Chandrashekar.
The Bench comprising Justice V G Arun and Justice S. Manu refused to invoke the writ jurisdiction and said its hands are 'tied' as the election process has already commenced. It observed,
“We are of the opinion that whether Returning Officer should have considered the complaint and pass reasoned order cannot be considered at this stage. The remedy of the petitioners if they are aggrieved by the affidavit filed a candidate is to file an election petition.”
Case Citation: 2024 LiveLaw Ker 264
Case Title: Varkala Kahar v. The Election Commission of India and Ors.
Case Number: WP(C) No. 16024 of 2024
The Kerala High Court has disposed of the plea moved by the Chief Election Agent of MP Adoor Prakash alleging that the final voters' list in the Attingal Parliamentary Constituency contained double entries.
“In a constitutional democracy, the government is a government, of the people, by the people and for the people; and each of us have a participatory role in electing the government. On the day of election, the vote that each citizen casts, counts as of the same value. So, our constitution and our law provide for one citizen, one vote and one value. That is the great power of our nation as a constitutional democracy” observed Justice Shoba Annamma Eapen.
The plea was moved by the Chief Election Agent of Adoor Prakash, MP, who is the Congress-I candidate nominated to contest from the Attingal Parliamentary Constituency in the polling scheduled to be held on 26th April 2024. The petitioner submitted that the final voter's list prepared in the Attingal Parliamentary Constituency contains 1,61,237 double entries out of 13,93,134 voters.
Citation: 2024 LiveLaw Ker 265
Case title: Dr. M. R. Saseendranath V State of Kerala
Case number: WP(C) 9022/ 2024
The Kerala High Court today dismissed the writ petition filed by Dr. M. R. Saseendranath, Vice Chancellor of Kerala Veterinary and Animal Science University, challenging the suspension order issued against him by the Chancellor pending inquiry.
Dr Saseendranath was suspended pending enquiry on grounds of dereliction of duty and lack of sincerity over the suicide of Sidharthan J S, a second-year Bachelor of Veterinary Science and Animal Husbandry student at the College of Veterinary and Animal Sciences, Pookode in Wayanad district. It is alleged that Sidharthan committed suicide on February 18, 2024, in the hostel room of his college because of ragging and brutal assault from a group of students in the college.
Justice Ziyad Rahman A.A. observed that this is a serious incident that allegedly took place inside the college campus in front of other students in an inhumane manner. The Court stated that officials who willfully or negligently did not take any measures to prevent the torture and death of Sidharthan should face legal consequences.
“….this is a serious incident which allegedly occurred inside a college campus in front of a large number of students and the deceased was allegedly subjected to inhumane torture for days together, which ultimately led to his suicide. Therefore, it is absolutely necessary that, all the persons responsible for such incident and the officials who, either willfully or negligently, did not take any steps to prevent such torture, before it escalated into the death of a person, shall also be proceeded against. Therefore, I do not find it proper to interfere with the process of inquiry now in progress.”
Citation: 2024 LiveLaw Ker 266
Case Title: State of Kerala v Narendra Kumar & Another
Case Number: D.S.R.NO.1 OF 2018, CRL.A.NO.319 OF 2017
The Kerala High Court has declined to impose death sentence upon Narendra Kumar, a native of Uttar Pradesh convicted for committing triple murders in Kottayam on May 17, 2015.
He was convicted under Section 302 IPC and sentenced to the death for the brutal murder of his employer Praveenlal and his parents Lalasan and Prasannakumari.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. was dealing with Kumar's appeal and the Sessions court reference for confirmation of sentence. It held,
“While the facts and circumstances proved against the appellant before us clearly point to his involvement in a gruesome triple murder, we would not go so far as to categorise it as the “rarest of the rare” so as to impose the death sentence on him. This is especially so because this is a case where we have sustained the conviction of the accused for the various offences with which he was charged solely based on circumstantial evidence."
Citation: 2024 LiveLaw Ker 267
Case Title: Nijo Varghese v Transport Commissioner
Case Number: WP(C) NO. 1142 OF 2024
The Kerala High Court has held that registration authorities should not insist on fitting of sensors to pneumatic doors in buses used as stage carriages since it is not mandated under Rule 280 of the Kerala Motor Vehicles Rules, 1989 and Chapter VI of the AIS-052 (Rev.1).
Rule 280 of Kerala Motor Vehicles Rules deals with the entrance and exit of stage carriages and Clause 6.5 of AIS-052 (Rev.1) deals with Power Operated Service Door.
Justice N Nagaresh directed the registering authority to register the petitioner's bus without insisting on fitting sensors in the pneumatic doors, provided the bus satisfies other requirements as per paragraph 6.5 of AIS-052 (Rev.1).
“A closer reading of Rule 280 of the Kerala Motor Vehicles Rules, 1989 and Chapter VI of the AIS-052 (Rev.1) would make it clear that neither the rules nor the authorities insisted for fitting of Sensors to Pneumatic Doors in a Stage Carriage. Therefore, as long as the vehicle of the petitioner satisfies the provisions contained in Chapter VI of AIS-052 (Rev.1) including the construction of tapered Test Bar as per the requirement in paragraph 6.5.1.3 and the closing force, peak force, effective force and clamping force as required in paragraph 6.5, the respondents will not be justified in insisting that the Stage Carriage of the petitioner will be registered only if the Pneumatic Doors of the Stage Carriage are fitted with Sensors.”
Citation: 2024 LiveLaw Ker 268
Case Title: Cherplassery Co-Operative Hospital Ltd v State of Kerala
Case Number: WP(C) NO. 32291 OF 2014
Justice Murali Purushothaman stated that the Kerala Co-operative Societies Act deals with conditions of service of the employees within Society such as post creation, qualification for appointment, method of appointment, payment of salary, promotion and retirement. Meanwhile, labour legislation deals with welfare and social security measures not encompassed under the Kerala Co-operative Societies Act and Rules.
“The employees of the Co-operative Societies are entitled to the benefits of the said labour legislations (Kerala Shops and Commercial Establishments Act, 1960, the Minimum Wages Act, 1948, the Maternity Benefit Act, 1961 and the Festival Holidays Act). The Kerala Co-operative Societies Act and Rules do not exclude the operation and applicability of the aforesaid labour laws to Co-operative Societies and the petitioner is bound to comply with the provisions of the said labour enactments.”
Malabar 'Parota' Is Akin To 'Bread', Exigible To 5% GST: Kerala High Court
Case Citation: 2024 LiveLaw Ker 269
Case Title: Modern Food Enterprises Private Limited Versus Union Of India
Case No.: WP(C) NO. 13935 OF 2021
The Kerala High Court has held that Malabar 'Parota' is akin to 'bread' and is exigible at the rate of 5% GST and not 18% GST.
The bench of Justice Dinesh Kumar Singh has observed that Malabar 'Parota' and Whole Wheat Malabar Parota are exigible at the rate of 5% GST and not 18% as held by the Advance Ruling Authority and Advance Ruling Appellate Authority.
The petitioner is in the business of manufacturing and supplying food products, namely Classic Malabar Parota and Whole Wheat Malabar Parota. The petitioner filed an application for advance ruling under Section 97 of the CGST/SGST Act for the classification and rate of tax on the two products. The petitioner sought an advance ruling seeking classification of its products and rate of GST on the understanding that the petitioner's products qualify as 'bread'.
Case Citation: 2024 LiveLaw Ker 270
Case Title: P. Gopalakrishnan @ Dileep v. XXXX
Case Number: WA 581/ 2024
Justice N. Nagaresh and Justice P.M. Manoj dismissed the appeal filed by Dileep today.
On April 12, 2024, the single judge of Justice K Babu directed the Ernakulam District and Sessions Judge to give the survivor copies of statements of persons examined during the fact-finding inquiry in an interim application filed by the survivor. The single judge stated that it did not intend the fact-finding inquiry to be treated as confidential and held that the survivor has the right to get copies of statements of witnesses.
The Single judge had posted the matter to be heard on May 30, 2024, regarding the maintainability of the interim applications filed by the survivor.
This was appealed by the actor before the Court alleging that the survivor cannot file interim applications in a petition that was disposed of on December 07, 2023. Relying upon Apex Court judgments, it was argued that the High Court cannot exercise its jurisdiction to entertain applications in a case that was already disposed of.
Other Significant Developments This Week
Case Title: Suo Moto v State of Kerala
Case Number: CRL.MC No. 5136 OF 2023
Justice K Babu stated that DNA examination of adopted children would also defeat the sanctity of adoption and thus laid down the following guidelines:
“(i) The Courts shall not entertain applications seeking DNA examination of children given in adoption.
(ii) The Child Welfare Committee shall see that the DNA samples of children given in adoption are taken before the completion of the process of adoption.
(iii) All agencies or authorities involved in the adoption process shall ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force.
(iv) Even in cases where the children were not given in adoption the Court shall consider the request for a DNA test of the children of the victim only after assessing the principle of “eminent need” and doctrine of proportionality.”
Kerala High Court Stays For 2 Months Cheruvally Estate Acquisition For Sabarimala Greenfield Airport
Case Title: Ayana Charitable Trust (formerly known as Gospel for Asia) v State of Kerala
Case Number: WPC 13775/2024, WPC 13659/2024
“Pending consideration of the writ petitions, there will be an interim order directing the official respondents not to take any further steps pursuant to Ext.P43 notification, issued under Section 11(1) produced in W.P.(C) No.13775 of 2024, for a period of 2 months. It is also ordered that the petitioners and respondents in both the writ petitions shall maintain the status quo in respect of the property, which is the subject matter of Ext.P43 notification”, stated the Court
The writ petition averred that government's previous attempts to acquire the Cheruvally Estate had led to a series of litigations. It was argued that since the government failed in those litigations, it initiated proceedings under the 2013 Act for land acquisition. The government then invoked its powers under the 2013 Act to acquire 2263.18 acres of land of Cheruvally Estate by depositing the entire compensation amount. It was argued that the government was trying to acquire the land under the 2013 Act with ulterior and malafide motives.
Justice MB Snehalatha Sworn-In As Additional Judge Of Kerala High Court
Justice MB Snehalatha was sworn in as an additional judge of the Kerala High Court today.
The oath of office was administered by Chief Justice A J Desai. Speakers at the occasion included AG Gopalakrishna Kurup and the KHCAA President.
The Supreme Court collegium had recommended her elevation in October 2023 and the Central government notified her appointment in April 2024.
Case Title: Sathybhama v State of Kerala
Case Number: Crl A 733/2024
Mohiniyattam performer Kalamandalam Sathyabhama has preferred an appeal before the Kerala High Court against the dismissal of her anticipatory bail application by the Special Court for Trial of offences under SC/ST Act, for allegedly making casteist remarks against fellow artist Dr. RLV Ramakrishnan.
In an interview to DNA News Malayalam which went viral on YouTube, Sathyabhama is stated to have commented on the appearance and skin tone of Ramakrishnan, who belongs to the Scheduled Caste community, without explicitly taking his name. This prompted Ramakrishnan to file a complaint against Sathyabhama under Sections 3(1)(r) of Scheduled Caste / Scheduled Tribes (Prevention of Attrocities) Act at the Cantonment Police Station in Thiruvananthapuram district.
Case Title: Sebin Thomas v. Election Commission of India and ors.
Case Number: WP(C) No. 16379 of 2024
Lawyer Sebin Thomas has moved the Kerala High Court challenging LDF campaign pamphlets, which the petitioner claims “shall mislead the people from the Muslim community that the law enforced by the government of India is for targeting the elimination of them”.
The petitioner, a practising lawyer, filed the petition after receiving a pamphlet distributed by the volunteers of the Left Democratic Front at his house. The pamphlet contained 25 questions against the present member of parliament, Hibi Eden along with the heading '25 questions for Hibi Eden'. The petitioner submits that the pamphlet also requests votes for the LDF candidates in the Ernakulam constituency.
Case Title: P Sudhakaran v State of Kerala
Case Number: WPC 16440/2024
A plea has been moved before the Kerala High Court alleging excessive use of force by the Police and illegal restrictions imposed by Thrissur District Police Chief Ankit Asokan during the Thrissur Pooram held on April 19 and 20.
The petitioner, a devotee, seeks framing of directives/guidelines to prevent unlawful police interference in rituals and ceremonies during temple festivals in Kerala and to protect the religious freedom of devotees guaranteed under the Constitution.
The Division Bench comprising Justice V G Arun and Justice S Manu orally noted that the State government has initiated action against concerned police officials. However, it restrained from passing any blanket order today and sought instructions from the state government.
Case Title: Baiju v State of Kerala
Case Number: WP(C) 16359/2024
The Kerala High Court today admitted a plea moved by devotees and nearby residents of Sree Rakthakanda Swamy Temple, Omallur in Pathanamthitta district alleging illegal encroachment and unauthorized use of temple and temple premises by the members of the Rashtriya Swayam Sevak Sangh (RSS) (Respondents 7 to 10).
The Division Bench comprising Justice VG Arun and Justice S Manu admitted the matter and issued notice to the respondents.
The Counsel appearing for the petitioners, Advocate Nikhil Sankar S submitted that the temple festival is going to be held from 21st April to 30th April 2024 and the illegal use of the temple and its premises by RSS members would create law and order situations.
Case Title: Avani Bansal v The Election Commission of India
Case Number: WP(C) 16410/2024
Minister Rajeev Chandrashekar is the official BJP candidate contesting for the 2024 General Elections from the Thiruvananthapuram constituency.
The public interest litigation was moved by Congress leader Avani Bansal alleging Minister Rajeev Chandrashekar had filed a false affidavit contrary to the Representation of People's Act 1951, Conduct of Election Rules 1961 and Compendium of the ECI. It is alleged that the Minister has deliberately suppressed his financial assets and has not declared significant assets such as his house, luxury cars, private jets, real estate assets, and company shares and has misrepresented his financial status in the affidavit filed along with the nomination paper.
It is alleged that no action has been taken by the Election Officer and the Chief Electoral Officer even after prime facie evidence was given against Minister Rajeev Chandrashekar regarding the filing of a false affidavit along with the nomination paper.
