Kerala High Court Weekly Round-Up: May 29 To June 4

Navya Benny

4 Jun 2023 11:06 AM GMT

  • Kerala High Court Weekly Round-Up: May 29 To June 4

    Nominal Index [Citation: 2023 LiveLaw (Ker) 238-249]Santhosh Kumar v. The High Court of Kerala & Ors. 2023 LiveLaw (Ker) 238Mohandas P.D V. The District Geologist 2023 LiveLaw (Ker) 239D. Babu v. C. Shaji & Anr. 2023 LiveLaw (Ker) 240Jimmy Thomas V. Indian Bank 2023 LiveLaw (Ker) 241Zonal Manager, Life Insurance Corporation of India & Ors. v. Rosamma Varkey 2023 LiveLaw (Ker)...

    Nominal Index [Citation: 2023 LiveLaw (Ker) 238-249]

    Santhosh Kumar v. The High Court of Kerala & Ors. 2023 LiveLaw (Ker) 238

    Mohandas P.D V. The District Geologist 2023 LiveLaw (Ker) 239

    D. Babu v. C. Shaji & Anr. 2023 LiveLaw (Ker) 240

    Jimmy Thomas V. Indian Bank 2023 LiveLaw (Ker) 241

    Zonal Manager, Life Insurance Corporation of India & Ors. v. Rosamma Varkey 2023 LiveLaw (Ker) 242

    P Nanikutty V. K U Kalpakadevi 2023 LiveLaw (Ker) 243

    Joseph Thomas V State of Kerala 2023 LiveLaw (Ker) 244

    Sabu M. Jacob v. Union of India & Ors. 2023 LiveLaw (Ker) 245

    N M Basil V The Regional Sports Centre 2023 LiveLaw (Ker) 246

    Rasiya P.M. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 247

    BRD Securities Ltd V. Union Of India 2023 LiveLaw (Ker) 248

    Ajith Kumar V.S. & Anr. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 249

    Judgments/Orders This Week

    Allegation Of Forgery Of Document To Be Considered By Court, Complaint On Administrative Side Not Legally Sustainable: Kerala High Court

    Case Title: Santhosh Kumar v. The High Court of Kerala & Ors.

    Citation: 2023 LiveLaw (Ker) 238

    The Kerala High Court has ruled that when a statute confers specific power upon a judicial officer to tackle a particular situation on the judicial side, the administrative authority would be precluded from entertaining the complaint and taking a decision on the administrative side.

    The Single Judge Bench of Justice Shaji P. Chaly made the above observation in a case alleging commission of fraud and falsification of document by two advocates in a matter before the Munsiff's Court at Irinjalakuda, on the basis of which they had obtained a decree.

    "The issue with respect to the falsification or forgery of documents when raised before a court of law which dealt with the litigation is a subject matter to be considered by the said court itself, invoking the provisions of Section 340 of Cr.P.C.," the court observed.

    Forest Department Cannot Deny Soil Excavation Permission To Assignee of Land Just Because It Contains High Levels of Humus: Kerala High Court

    Case Title: Mohandas P.D V. The District Geologist

    Citation: 2023 LiveLaw (Ker) 239

    The Kerala High Court recently held that the Forest Department cannot deny permission to an assignee of land under the Kerala Land Assignment Special Rules, 1993, to excavate and transport ordinary earth from their land for the purpose of house construction simply because the soil contains high levels of humus.

    A single bench of Justice N Nagaresh observed that

    “..defence of the respondents is that the soil excavated at the site has the inherent biological properties of the Forest ecosystem with high levels of humus and hence soil can be removed only with the permission of the Forest Department. High levels of humus quality cannot by itself affect the right of a land owner to utilise his land according to his requirements permissible under law and under the terms of assignment. In the absence of any statutory prohibition, restriction or regulation and in the absence of any executive instruction having the force of Article 162, Officers of the Forest Department cannot prevent an assignee of the land under the Special Rules, 1993 from constructing house and for that purpose excavate and transport ordinary earth”

    The Court also observed that under Rule 3 of the Kerala Land Assignment (Regularisation of Occupations of Forest Lands Prior to 01.01.1977) Special Rules, 1993 assigned land can be used for personal cultivation, house sites or shop sites. As long the pattayam/conditions of assignment do not contain any specific condition that prohibits removal of ordinary earth from the site, such removal cannot be denied, it said.

    Local Self Govt Tribunal | Limitation Under Rule 8(3) For Filing Petitions Not Applicable To Pleas For Setting Aside Ex-Parte Order: Kerala High Court

    Case Title: D. Babu v. C. Shaji & Anr.

    Citation: 2023 LiveLaw (Ker) 240

    The Kerala High Court recently enunciated that the time limit which has been fixed under Rule 8 of the Tribunal for the Local Self Government Institution Rules, 1999, is only in respect of petitions to be filed as provided in Rules 8(1) and 8(2) of the Rules, 1999 and not in respect of a petition filed in the said proceedings for setting aside of an ex parte order or for condonation of delay.

    Justice Viju Abraham, thereby set aside an order of the Tribunal for the Local Self Government Institution (hereinafter, 'Tribunal') which had placed reliance upon Rule 8(3) for dismissing an application for setting aside the ex parte order and the application to condone the delay in filing the same.

    S.17 SARFAESI Act | Recovery Action May Have Disastrous Consequences For Borrower, DRT Must Pass Interim Order Upon Application Of Mind: Kerala HC

    Case Title: Jimmy Thomas V. Indian Bank

    Citation: 2023 LiveLaw (Ker) 241

    The Kerala High Court recently held that interim orders passed by the Debts Recovery Tribunal under 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 cannot be issued mechanically and without application of mind. Doing so would amount to failure on the part of the Tribunal in proper and judicious exercise of the jurisdiction vested in it, the Court observed.

    A single bench of Justice Gopinath P observed,

    “when an application is brought before the Tribunal, under Section 17 of the Act, the Tribunal must be alive to the fact that the Bank/Financial Institution has initiated the proceedings without any adjudication and that the powers conferred under the Act are drastic and can have disastrous consequences for the borrower. This is all the more reason for the Tribunal to apply its mind with reference to the contentions taken before it (even at the interim stage) before deciding to grant or reject a prayer for interim relief.”

    It added, "The provisions of the RDB Act (Recovery of Debts and Bankruptcy Act, 1993) read with provisions of the Tribunals Reforms Act, 2021 and the Tribunal (Conditions of Service) Rules, 2021 make it clear that it must be manned by a person who “is, or has been, a District Judge”. The orders issued by the Tribunal must therefore demonstrate reasonableness of its decision."

    Life Insurance Policy Can Be Repudiated For Suppression Of Material Facts Regarding Health Condition Of Insured: Kerala High Court

    Case Title: Zonal Manager, Life Insurance Corporation of India & Ors. v. Rosamma Varkey

    Citation: 2023 LiveLaw (Ker) 242

    The Kerala High Court recently held that details regarding the illness suffered by the proposer/assured, the previous treatment administered to him including hospitalization, and so on, which are raised as specific queries in the proposal form of the insurance company are material facts, and in the event of any material suppression or furnishing of false information by the proposer/assured regarding the same, the Insurance Company would be entitled to repudiate the policy.

    Justice Sathish Ninan, further went on to observe that it would not be open for the claimant to contend that someone else had filled the proposal form on his behalf, and that the mentioning of the false particulars could thus not be attributed to him.

    "Taking it to be that or accepting that the proposal form was filled up not by the proposer but by any other person including an agent/employee of the defendant, that could only be construed to have been done for and on behalf of the proposer and on his instructions. The proposer has signed the proposal form undertaking that all the entries made in the proposal are true and correct. He cannot be heard to say that it was someone else who filled up the proposal form and that he affixed signature to the proposal form without reading or understanding the materials furnished therein," the Court observed.

    Scribe Being One Of The Attesting Witnesses Not More Competent Than Other Attesting Witnesses To Prove Execution Of Will: Kerala High Court

    Case Title: P Nanikutty V. K U Kalpakadevi

    Citation: 2023 LiveLaw (Ker) 243

    The Kerala High Court recently held that when the scribe is one of the attesting witnesses of a will, he is not more competent than other attesting witnesses to depose the execution of the Will. The Court noted that there is no law in place which states that when the scribe of a Will is one of the attesting witness, he/she is the best witness and is the most competent to depose the execution of the Will.

    A single bench of Justice Mary Joseph observed,

    “If the scribe is an attesting witness to the Will, he can be examined as an attestor to establish the execution of the Will and his competency will only be equivalent to the other attesting witness...There is no prescription in law that for establishing the execution of a Will the scribe must be examined. The examination of a scribe can be resorted to when he is an attesting witness to the document. In all other circumstances the law did not contemplate examination of a scribe to establish the execution of the Will.”

    Magistrate Court Having Jurisdiction Cannot Refuse An Accused Permission To Surrender: Kerala High Court

    Case Title: Joseph Thomas V State of Kerala

    Citation: 2023 LiveLaw (Ker) 244

    The Kerala High Court recently held that a Magistrate cannot refuse a person accused of an offence, permission to surrender to its jurisdiction under Sections 436 and 437 of Code of Criminal Procedure, 1973.

    A single bench of Justice K Babu observed:

    “When the Code permits a person accused of an offence to surrender before the Court having jurisdiction over the subject matter, it cannot refuse permission. When an accused appears before the Court and applies for surrender, his prayer shall be accepted.”

    Kerala High Court Dismisses Plea To Bring Back 'Arikomban', Says No Allegation Of Neglect Against Authorities In Tamil Nadu

    Case Title: Sabu M. Jacob v. Union of India & Ors.

    Citation: 2023 LiveLaw (Ker) 245

    The Kerala High Court dismissed the plea filed by Sabu M. Jacob, the President of the 'Twenty-20 Party', and the Managing Director of Kitex Garments, seeking safe translocation of rogue elephant 'Arikomban' back to Kerala.

    The pachyderm was earlier translocated to Periyar Tiger Reserve for allegedly foraging into the human settlements in Chinnakanal area, However, as per reports the elephant moved close to human settlements in Tamil Nadu leading to issuance of an order by the Chief Wildlife Warden, Tamil Nadu Forest Department to tranquilize and capture and translocate the elephant to the deep forest area of Villaimalai (in Tamil Nadu).

    At the outset, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran found that the petitioner had neither made out any factual averments or legal grounds to show that the order issued by the CWW is illegal, nor had he challenged the same.

    "We fail to understand the rationale for the petitioner for venturing into these litigation proceedings. Having read the facts and circumstances of the case, we refrain and restrain ourselves from imposing costs," the Court observed.

    [Kerala Rent Control Act] Interim Orders Appealable U/S 18 Only If It Affects Rights & Liabilities Of Party: Kerala High Court

    Case Title: N M Basil V The Regional Sports Centre

    Citation: 2023 LiveLaw (Ker) 246

    The Kerala High Court recently held that interim orders passed under the Kerala Buildings (Lease and Rent Control) Act, 1965 are appealable under Section 18 of the Act only if it affects the rights and liabilities of the concerned party.

    A division bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen while dismissing a petition filed challenging the order of the Rent Control Appellate Authority, that dismissed an appeal against interim orders of the Rent Control Court, held that ad interim orders which do not ‘affect or touch upon the substantial rights or liabilities of the parties’ are not appealable under Section 18 of the Act.

    Unexplained Delay In Issuing Detention Order After Last Prejudicial Activity Of Detenu Is Ground For Quashing: Kerala High Court

    Case Title: Rasiya P.M. v. State of Kerala & Ors.

    Citation: 2023 LiveLaw (Ker) 247

    The Kerala High Court held that a detention order issued against a person can be quashed on the basis of unexplained delay in issuing the order of detention after the last prejudicial activity of the detenu, as per the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter, 'KAAPA').

    The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha observed, 

    "It is trite that there has to be a live link between the prejudicial activity and the order of detention and if the said link is snapped, the order of detention would be bad. In other words, an unexplained delay in issuing the order of detention after the last prejudicial activity would certainly vitiate the order of detention, for the delay would snap the live link between the prejudicial activity and the detention order".

    However, the Court observed that if there is a satisfactory explanation for the delay, the same would not affect the order, and added that the question of satisfactory explanation of delay would have to be ascertained on the basis of the facts of each case. The Bench further added that the Statute as such contemplates detention only for a period of six months in order to achieve its purpose.

    Delegation Of Quasi-Judicial Functions By SEBI To Its Members Is Permissible: Kerala High Court

    Case Title: BRD Securities Ltd V. Union Of India

    Citation: 2023 LiveLaw (Ker) 248

    The Kerala High Court recently held that the Securities and Exchange Board Of India (SEBI) can delegate the quasi-judicial functions of the Board to its members if the statute permits such delegation. The court noted that Section 19 of the SEBI Act permits delegation of the function and power of the Board to its members, except the powers under under Section 29, being the rule making power of the Board.

    A single bench of Justice V G Arun observed that:

    “In the Indian context, delegation of quasi-judicial functions is permissible if the statute provides for such delegation. A plain reading of Section 19 of the SEBI Act shows that, all powers and functions of the Board (except the rule making power under Section 29) can be delegated to any member, officer or any other person.”

    Kerala High Court Takes Exception To State’s Rejection Of Proposal On Enhancing Retirement Age Of HC’s Meritorious Staff, Orders Fresh Decision

    Case Title: Ajith Kumar V.S. & Anr. v. State of Kerala & Ors. and other connected matters

    Citation: 2023 LiveLaw (Ker) 249

    Taking exception to the State's rejection of a proposal on the enhancement of retirement age of high court staff from 56 to 58, the Kerala High Court remitted the matter back to the state government for a fresh decision on the proposal of the Chief Justice for enhancement of the retirement age of the meritorious employees.

    The Registrar General of the High Court on October 25, 2022 had forwarded the proposal of the Chief Justice for enhancement of the age of superannuation of the members of the High Court staff from 56 to 58 years. The proposal had been sent pursuant to a High level meeting between the Chief Justice and the Chief Minister of the State on September 24, 2022. The sub-committee consisting of three judges had suggested enhancement of retirement age, limiting to members with meritorious service and impeccable integrity for which a performance evaluation would have to be done at the age of 56 years.

    Additional Chief Secretary of the Government however, in February informed the High Court of the State's inability to accept the proposal since the retirement age of the High Court staff had been fixed at par with that of the Government servants. The State said that since it had not taken any decision to enhance the retirement age of the government servants, the Government would thus not be able to consider the proposal of the Chief Justice favourably.

    The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, while taking the view that the request of the Chief Justice could only be treated as a proposal for favourable consideration for initiating suitable amendment to the law laid down with respect to the retirement age, observed:

    "It is beyond our power to direct the Government to initiate steps for amendment of legislation related to the retirement age. However, at the same time, we also feel that the Government cannot outrightly reject the proposal, merely citing the age of retirement prevailing for government servants".

    Other Significant Developments This Week

    Kerala High Court Refuses To Stay Lokayukta Decision Referring Complaint Against Chief Minister, Others To Full Bench

    Case Title: R.S. Sasikumar v. State of Kerala

    The Kerala High Court on Monday refused to stay the order of the Lok Ayukta referring the case against the Chief Minister Pinarayi Vijayan and the former Ministers alleging misuse of amount in the Chief Minister Disaster Relief Fund (CMDRF) to a Full Bench comprising the Lok Ayukta and both the Upa-Lok Ayuktas.

    The Division Bench comprising Acting Chief Justice S.V. Bhatti and Justice Basant Balaji, clarified that the court wasn't dismissing the petition but would be considering it the following week. Meanwhile, on a submission by the counsel for the petitioner that the 3-member Bench would be convened on June 5, for considering the case, the Court added that it could be done.

    Plea In Kerala High Court Seeks Proper Medical Care For 'Arikomban' If Tranquillised And Captured

    Case Title: Sabu M. Jacob v. Union of India & Ors.

    A plea has been filed in the Kerala High Court seeking proper medical care to be ensured for the rogue elephant 'Arikomban', and for the adoption of scientific methods that cause minimum trauma, for the rehabilitation and translocation of the tusker, if the animal is to be captured and tranquilized.

    The pachyderm, 'Arikomban', had allegedly been foraging into the Chinnakanal area, and causing damage to the property in the human settlement areas. The tusker was translocated to Periyar Tiger Reserve after fixation of a radio collar on it, on April 29, 2023.

    The present plea filed by Sabu M. Jacob, who is the Chief Coordinator of the charitable society 'Twenty-20 Association' and the President of the 'Twenty-20 Party', as well as the Managing Director of Kitex Garments, avers that the translocation of the tusker to the Periyar Tiger Reserve did not result in any meaningful solution to the problem, since the tusker again entered areas of human inhabitation in Tamil Nadu and Cumbam town of Tamil Nadu. The plea avers that three people were injured while trying to escape on seeing the elephant, with one being seriously injured, and several vehicle also damaged. The plea has been filed in light of the Tamil Nadu Forest Department issuing an order to tranquilize and capture and translocate the elephant to the deep forest area of Villaimalai.

    Education Loan Cannot Be Rejected For Low CIBIL Score Of Student: Kerala High Court

    Case Title: Noel Paul Fredy v. State Bank of India & Anr.

    The Kerala High Court on Tuesday held that an application for education loan by a student could not be rejected on the ground of a low CIBIL (Credit Information Bureau (India) Limited) score.

    Justice P.V. Kunhikrishnan cautioned banks to adopt a 'humanitarian approach' while considering applications for education loans.

    "Students are the nation builders of tomorrow. They have to lead this country in future. Simply because, there is low CIBIL score to a student, who is an applicant for Education loan, I am of the considered opinion that, Education loan application ought not have been rejected by Bank," the Court observed.

    'Why Can’t You Take It As Patient Hearing?' : Kerala High Court Asks Petitioner Who Alleged Sitting Judge Hears Limited Number Of Cases

    Case Title: Yeshwanth Shenoy V The Chief Justice High Court of Kerala & Others

    The Kerala High Court on Wednesday reserved for order the petition filed by Advocate Yeshwanth Shenoy alleging that Justice Mary Joseph of the High Court has curtailed the number of cases listed before her bench to only 20 matters a day, when other judges have 100 matters or more listed before them everyday.

    When the matter came up for hearing before Justice PV Kunhikrishnan today, he asked the Petitioner, “Why can’t you take it as patient hearing by a judge? Some judges may dispose the case immediately, some judges may take some time, that is human.”

    Plea In Kerala High Court Challenges Special Court's Order Directing State To Produce Documents In Brewery License Case

    Case Title: A.S. Ranjith v. Public Prosecutor & Anr.

    A plea has been filed in the Kerala High Court for quashing the order issued by the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram seeking the production of documents by the State Government, in relation to the brewery allotment corruption case.

    The case pertains to the alleged graft in the issuance of brewery licenses by the previous administration of the ruling party. Approvals for breweries were allegedly given to three distilleries but it was revoked after the opposition challenged the same. The proceedings before the Court of Enquiry Commissioner is based on a complaint by Congress leader Ramesh Chennithala in the year 2018, alleging nepotism and corruption in the allocation of the licenses of breweries.

    Kerala High Court Raps Kochi Corporation For Inaction Against Street Food Stalls Dumping Waste Into Stormwater Canals

    Case Title: Treasa K.J. v. State of Kerala

    The Kerala High Court recently came down heavily on the Kochi Corporation for not taking stringent action against hotels, particularly “thattukadas” (street side food stalls) for dumping waste into stormwater canals.

    The High Court in an order last year had directed the Kochi Corporation to act against citizens, commercial establishments dumping plastic/ garbage in stormwater drains.

    A single bench of Justice Devan Ramachandran observed: 

    “I fail to understand why the Corporation takes the afore stand because, in the order dated 11.11.2022, this Court has injuncted every section, including private citizens, from discharging any waste into the stormwater canals. ‘Thattukadas’ do not stand on a better footing and every obligation cast upon the citizens of this nation is binding upon them also," the Court stated.

    Kerala High Court Orders Kollam Police To Probe Alleged Forgery Of NEET Score Card By Candidate

    Case Title: Samikhan S. v. Union of India & Ors.

    The Kerala High Court on Wednesday directed the District Police Chief, Kollam, to conduct an enquiry in the matter of alleged manipulation in the National Eligibility Cum Entrance Test (NEET) scorecard of a candidate.

    Justice P.V. Kunhikrishnan declared that if any criminal offence is found in the matter, the Police authorities would be free to register a case and investigate the same in accordance with law, without waiting for any further order from the Court.

    Kantara Plagiarism Row: Kerala High Court Stays Magistrate Order Directing Seizure Of Materials Related To "Varaharoopam" Song

    Case Title: Vijay Kirgandur V State of Kerala

    The Kerala High Court recently stayed the order of the Chief Judicial Magistrate, Kozhikode that had directed the investigating officer to seize agreements/contracts related to the allegedly plagiarised song "Varaharoopam" from the Kannada movie “Kantara”.

    Further proceedings pursuant to the order of the Magistrate was stayed by a single bench of Justice Raja Vijayaraghavan in a plea filed by Producer of ‘Kantara’ Vijay Kirgandur and Music Director, B L Ajaneesh.

    Kerala High Court Asks Man To Approach Child Welfare Committee For Discharge Of Minor Daughter Impregnated By Her Brother

    Case Title: XXX v Union of India

    The Kerala High Court on Friday said that the father of a minor girl, who gave birth to a child after being impregnated by her brother, is free to submit an application to the Child Welfare Committee for her restoration in accordance with Section 40 of Juvenile Justice (Care and Protection of Children) Act, 2015.

    A single bench of Justice P V Kunhikrishnan directed the Child Welfare Committee to consider the application, if it is filed, within a week after consultation with doctors. The order of the Child Welfare Committee in this regard has been directed to be submitted before the court.

    “Regarding the discharge of the petitioner's child, the Police authorities can do the needful in consultation with the medical authorities. The custody of the new born child of the minor girl also will be decided by the 8th respondent (Child Welfare Committee) in accordance to Sec.35 of the Juvenile Justice Act,” said the court.

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