Kerala High Court Weekly Round-Up: February 20 To February 26, 2023

Nominal Index [Citation: 2023 LiveLaw (Ker) 89-101]

Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors. 2023 LiveLaw (Ker) 89

State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor, 2023 LiveLaw (Ker) 90

Anilkumar & Anr. v. State of Kerala, 2023 LiveLaw (Ker) 91

Gireesh V Antony, 2023 LiveLaw (Ker) 92

Southern Railway V M R Ramakrishnan, 2023 LiveLaw (Ker) 93

C.V. Balan & Ors. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 94

The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr, 2023 LiveLaw (Ker) 95

Sunil N.S. v. State of Kerala 2023 LiveLaw (Ker) 96

V. Mohanlal v. State of Kerala & Ors. 2023 LiveLaw (Ker) 97

Thachanalil Shyju V State of Kerala, 2023 LiveLaw (Ker) 98

Anantha Narayanan & Others V Malabar Devaswom Board & Others, 2023 LiveLaw (Ker) 99

Arun P Wilson and Others V State of Kerala and Others, 2023 LiveLaw (Ker) 100

K.J. Abraham v. The District Geologist2023 LiveLaw (Ker) 101

Judgments/Order This Week

State Human Rights Commission Vested With Jurisdiction To Order Compensation For Human Rights Violations

Case Title: Kottayam Municipality & Anr. v. The Chairperson, Kerala State Human Rights Commission & Ors.

Citation: 2023 LiveLaw (Ker) 89

The Kerala High Court recently held that the State Human Rights Commission has jurisdiction to direct payment of compensation for human right violations.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman passed the order in a case where a street vendor had been evicted by the Kottayam Municipality in a discriminatory manner, and without issuance of notice.

"The right of the 3rd respondent to carry on vending on street guaranteed by the Constitution is subject to the restrictions imposed by the Kerala Municipality Act, 1994. However, we find that the power of removal of encroachers vested in the Secretary under the Municipality Act is not exercised judicially and reasonably. The 3rd respondent's right to livelihood has been deprived otherwise than in accordance with a just and fair procedure established by law. Consequently, it follows that the Municipality has infringed the fundamental rights of the 3rd respondent under Article 21 of the Constitution", the Court observed.

Ciza Thomas' Appointment As VC In-Charge Of KTU Is Temporary, State Can Recommend Other Names To Replace Her

Case Title: State of Kerala rep. by the Addl. Secretary to the Government v. The Chancellor

Citation: 2023 LiveLaw (Ker) 90

The Kerala High Court on Thursday upheld a single bench order which refused to interfere with appointment of Professor (Dr.) Ciza Thomas as the Vice Chancellor in charge of the APJ Abdul Kalam Technological University.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, however emphasised that her appointment under Section 13(7) of the A.P.J. Abdul Kalam Technological University Act, 2015 is for a period not exceeding six months in the aggregate till the regular Vice-Chancellor assumes office.

S.243 CrPC | Trial Court Bound To Issue Process To Witness Proposed By Accused Unless It Is Attempt To Defeat Ends Of Justice

Case Title: Anilkumar & Anr. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 91

The Kerala High Court recently set aside the order of a Trial Court that rejected the prayer for summoning a witness cited by the accused, where there was nothing to indicate that the accused had attempted to defeat the ends of justice through seeking the examination of such proposed witness.

"Unless it is established that the application to summon a witness is made for vexation or delay or for defeating the ends of justice, the trial Court has no discretion in the issuance of process to compel the attendance of any witness cited by the accused. The trial Court is bound to issue process to the witness proposed by the accused in a case where there is nothing to show that the attempt of the accused is to defeat the ends of justice", the Single Judge Bench of Justice K.Babu observed while setting aside the impugned order of the Judicial First Class Magistrate Court, Kalamassery.

Rent Decreed By Civil Court Is Liable To Be Included While Computing Admitted Arrears Under Rent Control Proceedings

Case Title: Gireesh V Antony

Citation: 2023 LiveLaw (Ker) 92

The Kerala High Court recently held that the arrears of rent decreed by a civil court, is liable to be included while computing the admitted arrears of rent under Section 12(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965.

A Division Bench consisting of Justice P B Suresh Kumar and Justice Sophy Thomas observed that the object of Section 12 of the Act was to make sure that the tenant does not avail of the pendency of the petition for eviction for evading regular payment of rent which, even by the tenant’s own admission, is due to the landlord.

Court Within Territorial Jurisdiction Of Seat Or Place Of Arbitration Alone Can Entertain Application U/S 34 Arbitration Act

Case Title: Southern Railway V M R Ramakrishnan

Citation: 2023 LiveLaw (Ker) 93

The Kerala High Court recently held that the Court situated within the territorial jurisdiction of the seat or place of arbitration alone will have the jurisdiction to entertain an application filed under Section 34 of the Arbitration and Conciliation Act, 1996.

A single bench of Justice K Babu observed that the term “subject-matter of arbitration” in the definition of “court” in Section 2(1)(e) of the Act, refers to the Court having supervisory control over the arbitration proceedings. This would mean the Court where the seat or place of arbitration is will have jurisdiction to entertain a challenge to the arbitral award under Section 34 of the Act.

[Prevention Of Corruption Act] Private Complaint Against Public Servant Can't Be Forwarded For Investigation Without Sanction

Case Title: C.V. Balan & Ors. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 94

The Kerala High Court reiterated that the requirement of sanction under section 19 of the Prevention of Corruption Act is a prerequisite for presenting private complaint against a public servant alleging the commission of an offence specified in sections 7, 11, 13 and 15 of the Act, for investigation.

The Single Judge Bench of Justice Kauser Edappagath, held that in the absence of such sanction, no such complaint could be forwarded for the conduct of an investigation under Section 156(3) of the Cr.P.C.

State Human Rights Commission Cannot Entertain Service Matters

Case Title: The Institute of Human Resources Development (IHRD) v. Kerala State Human Rights Commission & Anr.

Citation: 2023 LiveLaw (Ker) 95

The Kerala High Court reiterated that the Kerala State Human Rights Commission has no jurisdiction to entertain service matters.

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman relied upon the decisions in Malabar Cements Ltd. (M/s.) v. K. Baburajan & Ors. (2019), and District Tourism Promotion Council, represented by its Secretary v. State of Kerala represented by the Secretary & Ors. (2021), both of which had held that, in terms of Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, the Commission may dismiss in limine a complaint, if the issue pertains to service matters.

Kerala High Court Allows Pulsar Suni To Remain Physically Present In Trial Court To Witness Proceedings In Actor Assault Case

Case Title: Sunil N.S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 96

The Kerala High Court allowed Sunil N.S., also known as 'Pulsar Suni', who is the main accused in the 2017 Actor Assault Case, to remain physically present before the trial court to witness the proceedings.

Justice K. Babu allowed the petition and observed that the same ensures fair trial.

"Fair trial is the main object of criminal procedure, and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused, the victim, and of society. Fundamentally, a fair trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced," the court observed.

Ivory Case Against Mohanlal : Kerala High Court Asks Magistrate To Decide Afresh State's Plea To Withdraw

Case Title: V. Mohanlal v. State of Kerala & Ors. and other connected cases

Citation: 2023 LiveLaw (Ker) 97

The Kerala High Court dismissed the plea filed by actor Mohanlal seeking to quash the JFCM Court, Perumbavoor order which dismissed the plea to withdraw the prosecution case against him pertaining to illegal possession of ivory.

However, the Court has allowed the revision petition filed by the State Government against the order of the Magistrate Court, and remanded the matter for fresh consideration.

Finding merit in the submission made by the counsels for the intervenors that the law ought to be equal for all, without any discrimination, the Single Judge Bench of Justice A. Badharudeen observed:

"...it has to be held that Law must be uniform to all, irrespective of their status as peasant, poor, middle class or higher class. Going by the settled principles as discussed in detail herein above, I don't think that the trial court addressed this question following the above principles and the trial court ventured the legality of the declaration as the sole basis, while dismissing the petition, which is the subject matter of dispute before the Division Bench of this Court".

Additional Document Can Be Produced After Prosecution Evidence Is Complete If It Is Vital And Omission Was Bonafide Mistake

Case Title: Thachanalil Shyju V State of Kerala

Citation: 2023 LiveLaw (Ker) 98

The Kerala High Court held that an additional document can be produced after prosecution evidence is complete if the omission of such document was a bonafide mistake and the document is purported to be vital.

A single bench of Justice Bechu Kurian Thomas was considering a challenge to an order of the Additional Sessions Court that permitted the prosecution to produce an FIR to show the motive of the accused, after the prosecution had completed its evidence. The accused who is being tried for offences under Section 302 and 307 of the Indian Penal Code, opposed the production of the additional document. The court however, observed that

“…there is no embargo on the production of additional documents during a trial if they are essential for arriving at a proper decision. If the requirements of justice command the production of such a document, the trial judge can permit such production, based on principles of fair play and good sense. No fetter can be placed on the right of the party to produce such a document.”

'Active Politicians Can't Be Temple Trustees' : Kerala High Court Holds CPI(M), DYFI Members As Disqualified

Case Title: Anantha Narayanan & Others V Malabar Devaswom Board & Others

Citation: 2023 LiveLaw (Ker) 99

The Kerala High Court held that a person actively involved in politics, whether or not holding an official post, is not eligible to be appointed as a non-hereditary trustee in temples under the Malabar Devaswom Board.

A division bench comprising of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing a plea challenging the appointment of certain persons as non-hereditary trustees in Pookkottukalikavu Temple pursuant to the notification of the Malabar Devaswom Board which stated that active politicians or persons holding official posts in any political party were ineligible for appointment to the post. 

Kerala High Court Directs State To Make Immediate Permanent Appointments In Government Law Colleges, Says Faculty Strength Not Being Met

Case Title: Arun P Wilson and Others V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 100

The Kerala High Court  directed the state government to take immediate steps to create posts and make permanent appointments in Government Law Colleges across the state in order to satisfy the requirements of faculty strength for the academic year 2023- 2024 in accordance with the Rules of Legal Education, 2008 framed by Bar the Council of India and the Advocates Act, 1961.

A single bench of Justice Shaji P Chaly was hearing a plea filed by students pursuing their LLB degrees from various Government Law Colleges within the state. The students had approached the court to not permit the Government Law Colleges in the state to commence their courses without having sufficient permanent faculties as prescribed by the Bar Council of India in the 2008 Rules.

Issuance Of Show Cause Notice Mandatory Under Rule 24 Of Kerala Minerals Rules, 2015

Case Title: K.J. Abraham v. The District Geologist

Citation: 2023 LiveLaw (Ker) 101

The Kerala High Court recently held that a show-cause notice is mandatory under Rule 24 of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015, before taking any action in cases relating to breach of conditions, prescribed in the license, by a dealer.

Justice N. Nagaresh also said that the reply of such person ought to be considered in such cases.

Other Significant Developments

Kerala High Court Permits Ailing PFI General Secretary to Appear Through VC In Cases Related To Flash Hartal

Case Title: Suo Motu V A Abdul Satar

The Kerala High Court directed that video conferencing be arranged for the appearance of A Abdul Satar, the general secretary of the Popular Front of India (PFI) before various courts in the cases connected to the flash hartal organised by PFI last year.

The court took note of the submission of his counsel that he is suffering from various ailments. The state attorney informed the court of the communication by the Superintendent, High Security Prison, Viyyur where he is currently held, that the prison contains 5 video conferencing rooms and that his presence can be ensured before various courts as and when required.

Kerala High Court Commences Publishing Judgments In Malayalam

The Kerala High Court has started publishing judgments translated to Malayalam language on test basis.

In an unprecedented step, two judgments of the Division Bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly in WA 1638/2022, and WA 926/2016, have been made available in Malayalam language, on the High Court website.

With this initiative, Kerala High Court has become the first High Court to commence publication of decisions in its regional language, as well.

Contempt Case: Kerala High Court Directs Issuance Of Non-Bailable Warrant For Arrest Of 'V4 Kochi' President Nipun Cherian

Case Title: Suo Motu v. Nipun Cherian

The Kerala High Court directed the issuance of a non-bailable warrant to the District Police Chief, Ernakulam, for the arrest and production of 'V4 Kochi' President Nipun Cherian, against whom a contempt case has been initiated by the court for his statements against a sitting judge of Kerala High Court. Cherian has been asked to be produced before the Court at 10.15 AM on 28.2.2023.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. observed that it was constrained to issue such an order of arrest due to the willful and continued absence of Mr. Cherian before it. The court had it in its order dated 08.02.2023, given Cherian a stern warning insisting on his presence before the court in the contempt matter. 

Channel Pricing Disagreements: Kerala High Court Hears Cable TV Federation Amid Disconnection Notices By Broadcasters

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

The Kerala High Court held an urgent hearing on a request made by the All Indian Digital Cable Federation which has challenged TRAI's new Tariff Order, under which broadcasters have increased channel prices for cable TV operators.

Though the matter was listed for February 22, AIDCF counsels sought an urgent hearing following disconnection notices issued by the Indian Broadcasting and Digital Foundation (IBF) on failure to sign new interconnection agreements with revised prices. It has been averred that the disconnection notices gave them only 2 days' time and that TRAI has not taken any step to address this "arm-twisting" tactic.

Actor Vijay Babu Can Make Intra-Country Travel Without Prior Court Permission: Kerala High Court Modifies Bail Conditions In Rape Case

Case Title: Vijay Babu v. State of Kerala

The Kerala High Court modified the bail conditions in the order granting anticipatory bail to Malayalam film producer-actor Vijay Babu in a rape case filed by another actor.

Justice Bechu Kurian Thomas, who was hearing the matter, deleted the bail condition in the order dated 22.06.2022, that the actor shall not leave the state without prior permission of the jurisdictional court. It also modified the condition regarding the surrender of his passport.

Regulator Cannot Remain Mute Spectator To Broadcasters' Perverse Pricing: Cable TV Operators Tell Kerala High Court; TRAI Opposes

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

The All Indian Digital Cable Federation told the Kerala High Court that TRAI's new Tariff Order, under which broadcasters increased channel prices for cable TV operators, was manifestly arbitrary.

"The Regulator here is completely silent and has, like Gandhari, completely blindfolded itself. How long will they keep acting like Gandhari of Mahabharat, when TRAI knows that broadcasters are pushing the bouquets", Senior Advocate Jayant Mehta, appearing on behalf of the petitioners submitted before the Court.

Channel Pricing Not Perverse, Cable Operators Themselves Agreed That 2020 Regulations Are Unworkable: TRAI Tells Kerala High Court

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

The Telecom Regulatory Authority of India (TRAI) told the Kerala High Court that the proposition of the cable operators to impose the price limit of Rs. 12 on all channels irrespective of whether it was part of a bouquet or not was a drastic measure, which the regulator had decided not to implement for good reason.

"Their proposal was rejected for good reason. These reasons have not been challenged before this court by them. In my submission, TRAI has rightly not followed it. We have continued and compelled broadcasters to bring down driver and popular channels to below Rs.19. Therefore, there is no perversity at all and nothing manifestly arbitrary," the Single Judge Bench of Justice Shaji P. Chaly was told.

Assets Of Those Not Linked To PFI Released From Attachment, State Tells Kerala High Court

Case Title : Kerala Chamber of Commerce And Industry Vs State of Kerala, Malayalavedi, Vs State of Kerala

The Kerala High Court  took note of the submissions of the government that the properties of four persons who have no connection with the Popular Front of India (PFI) and whose properties were erroneously attached by the Revenue authorities have been excluded through an order issued by the Home Department.

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P had previously directed the Additional Secretary of the Home Department to lift the attachment on such properties.

AIDCF Members Not Complying With Statute, Only Seek To Enforce Their Commercial Interests: Star Network Tells Kerala High Court

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

Broadcaster Star India Pvt. Ltd. told the Kerala High Court that the All Indian Digital Cable Federation (AIDCF), which has challenged TRAI's order to increase channel prices for cable TV operators, is only trying to pursue its members' commercial interest.

AIDCF have argued that increase in prices would burden cable subscribers while broadcasters pocket crores of profit.

Senior Advocate Mukul Rohatgi, appearing for Star however argued that none from the public had approached the court raising such grievance. He submitted that it's a purely commercial dispute where cable operators, who derive a commission being the middlemen, were only looking to further their interests.

Kerala High Court Pulls Up State For Not Including Prevention-Oriented Programme On Sexual Abuse In School Curriculum

Case Title: Anoop V State of Kerala

Kerala High Court came down heavily on the State for not taking measures to include prevention-oriented programmes on sexual abuse as part of school curriculum. In this regard the court ordered the heads of the expert committee formed by the state to be present before the court on 27.02.2023.

“the Director General of Education and the Additional Director of Education, who are the Chairman and Convenor respectively of the alleged Committee formed by the State Government shall appear before this Court on 27.02.2023 at 10.15 a.m., to explain the details of the Committee meetings and the measures taken by them in those alleged Committee meetings. “ the court directed.

Future Generations Won't Have Walkable City: Kerala High Court Issues Directions To Address Perils Of Pedestrians

Case Title: Pauly Vadakkan v. Corporation of Cochin

The Kerala High Court issued a slew of directions addressing the concerns of pedestrians on roads.

"The lives of citizens particularly pedestrians are in peril every moment and this has to change very very rapidly, lest the next generation will find this City and our State to not be capable of being walked upon", Single Bench of Justice Devan Ramachandran remarked.

The order comes in light of an 11-year-old boy in Mundamveli getting caught on a low hanging cable while cycling, resulting in injuries. This incident occurred within hours of a lawyer being thrown off his motorcycle and fracturing his leg while trying to avoid a low hanging cable at Ravipuram.

Cable Operators Have Made Interim Arrangement With Broadcasters, Kerala High Court Told

Case Title: All India Digital Cable Federation & Anr. v. Telecom Regulatory Authority of India & Anr.

The All India Digital Cable Federation (AIDCF) on Friday the Kerala High Court that an interim arrangement has been worked out with the broadcasters.

While the matter was being heard, the parties without prejudice to their rights and contentions in the main matter, have arrived at an understanding for the interim, Senior Advocate Jayant Mehta appearing for AIDCF informed the court.

“As far as the interim is considered, there is an arrangement by the parties which has been put into place effective yesterday night,” Mehta said

Justice S Ravindra Bhat Inaugurates Regional Colloquium of Southern States Organised By Kerala HC On Juvenile Justice Act, Pocso Act And Drug Abuse Among Children

A Regional Colloquium on Juvenile Justice Act,2015, PoCSO Act and Drug Abuse among Children organized by the High Court of Kerala is being held at Kochi Marriot Hotel, Ernakulam on 25th and 26th February. The Colloquium is being conducted to sensitise various stake holders of the justice delivery system handling cases involving children under different acts at various levels.

The Colloquium was inaugurated by Justice S Ravindra Bhat, Judge, Supreme Court on Saturday. Justice Bhat is also the Chairperson of the Juvenile Justice Committee of the Supreme Court. The function was presided over by the Chief Justice of Kerala High Court, Justice S Manikumar.

Sabarimala : People For Dharma Urges Kerala HC To Not Interfere With Practice Of Appointing Only Malayala Brahmin As Priest

Case Title: Vishnunarayanan v. The Secretary and Connected Cases

The Kerala High Court, in a special sitting, continued to hear a batch of petitions challenging the Travancore Dewaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi (chief priest) of Sabarimala-Malikappuram temples.

A Division Bench consisting of Justice Anil K. Narendran and Justice P G Ajith Kumar has been hearing petitions challenging the notification on the ground that it is violative of the fundamental rights guaranteed under Articles 14, 15 (1) and 16(2) of the Constitution of India.

During the hearing, Adv J Sai Deepak, appearing for the People for Dharma Trust, the Additional 10th Respondent in one of the writ petitions, argued that the petition is not vertically maintainable as against the state, as the "flawed premise" of the petition is that the appointment of an individual to the position of melshanti is a secular activity.

“The act of appointment is secular, but the considerations that go into the appointment are not secular, they are patently religious and they are patently unsecular but not anti secular”

Regional Colloquium on JJAct, Pocso Act And Drug Abuse Organised By Kerala HC Passes Resolution For Immediate Steps for Dispensation of Justice and Rehabilitation of Victims

The Regional Colloquium on Juvenile Justice Act,2015, PoCSO Act and Drug Abuse among Children organized by the High Court of Kerala entered its second and final day on Sunday. The Colloquium was organised to sensitise various stake holders of the justice delivery system handling cases involving children under different acts at various levels.

Justice C T Ravikumar, Judge, Supreme Court, addressed the valedictory function, through virtual mode. Justice S. Manikumar, Chief Justice, High Court of Kerala, Justice Alexander Thomas, Judge, High Court of Kerala and Chairman, PoCSO Committee and Justice Shaji P. Chaly, Judge, High Court of Kerala and Chairman, Juvenile Justice Committee were also present for the concluding session.

The Regional Colloquium passed a resolution to be presented to both the Central government and the governments of the participating southern states. This resolution is intended to serve as a reminder for governments to take immediate action to improve dispensation of justice and to ensure proper rehabilitation of victims.