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Kerala High Court Weekly Round-Up: January 2 To January 8, 2023
Athira Prasad
9 Jan 2023 3:25 AM GMT
Nominal Index [Citation: 2023 LiveLaw (Ker) 1-11]XXXX v. Union Of India and Connected Cases 2023 LiveLaw (Ker) 1Sali M.N. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 2T. A. Abdul Sathar v. The State of Kerala and Ors. 2023 LiveLaw(Ker) 3Lt. Col. E.V. Krishnan & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 4Laila Bhagaval Singh v. State of Kerala...
Nominal Index [Citation: 2023 LiveLaw (Ker) 1-11]
XXXX v. Union Of India and Connected Cases 2023 LiveLaw (Ker) 1
Sali M.N. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 2
T. A. Abdul Sathar v. The State of Kerala and Ors. 2023 LiveLaw(Ker) 3
Lt. Col. E.V. Krishnan & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 4
Laila Bhagaval Singh v. State of Kerala 2023 LiveLaw(Ker) 5
Jayadevi v. Narayana Pilla & Ors.2023 LiveLaw (Ker) 6
Sadanandan K.S. & Ors. v. Kerala Toddy Workers Welfare Fund Board & Ors. 2023 LiveLaw (Ker) 7
Rajesh and Anr. v. The Station House Officer and Ors. 2023 LiveLaw (Ker) 8
Chandra Chooden Nair S v. State of Kerala and Ors. 2023 LiveLaw(Ker) 9
Pappu Bawariya and Anr. v. District Collector Civil Station and Ors. 2023 LiveLaw(Ker)10
Siraj v. State of Kerala and Abhilash v. State of Kerala and Anr. 2023 LiveLaw (Ker) 11
Judgements/Orders This Week
Case Title: XXXX v. Union Of India and Connected Cases
Citation: 2023 LiveLaw (Ker) 1
The Kerala High Court observed that the imposition of age restriction under the Assisted Reproductive Technology (Regulations) Act, 2021 without a transitional provision, is irrational and arbitrary. Thereby, the Court issued the direction that the petitioners who were undergoing ART services as of the date on which the ART Act came into effect (25.01.2022) shall be permitted to continue their treatment.
The Court has also directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Central Government about the need for a re-look at the upper age limit prescribed in Section 21(g) of the Act.
The Court issued the aforesaid directions while disposing of a batch of Writ Petitions filed challenging the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulations) Act, 2021 which prohibits the application of ART services to persons above the prescribed age limit.
Case Title: Sali M.N. v. State of Kerala & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 2
The Kerala High Court has held that persons engaged in the business of extracting groundwater and supplying it to consumers through tanker lorries are 'users of ground water' as defined under Section 2(1)(h) of the Kerala Ground Water (Control and Regulation) Act, 2002 and are bound to obtain registration under Section 9 of the Act, irrespective of whether the areas where they operate are notified areas or not.
The Single Judge Bench of Justice N. Nagaresh thus directed the petitioners to submit their applications for registration before the Ground Water Authority, and thereafter directed the latter to issue Certificate of Registration to the applicants subject to such conditions and restrictions as may be prescribed, after making requisite enquiries in this regard.
"The Entrepreneurs like the petitioners, it is to be kept in mind, are supplying drinking water to the areas/buildings where there are no sufficient availability of drinking water. An absolute prohibition of their activity would result in non-supply of potable water to the needy residents and citizen. Therefore, any regulation of the activity of water supply through tanker lorries will have to take note of the requirements of the citizens also, who may require potable water due to non-availability of potable water or due to non-supply or short supply by the Kerala Water Authority. A pragmatic view has to be taken while regulations are made, keeping in mind the purpose for which the Act, 2002 has been enacted", the Court added.
Case Title: T. A. Abdul Sathar v. The State of Kerala and Ors.
Citation: 2023 LiveLaw(Ker) 3
The Kerala High Court observed that a finding on the veracity of the material in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 CrPC to quash a criminal proceeding.
Justice K. Babu observed that "it is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C."
Case Title: Lt. Col. E.V. Krishnan & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 4
The Kerala High Court considered the question as to whether the Inspector, appointed under the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958, can adjudicate and decide the quantum of wages payable as compensation under the statute.
Justice Bechu Kurian Thomas in the decision said that quantifying the amount due to an employee or adjudicating on the right of a person to be entitled to a particular sum and the corresponding obligation of another person to pay a certain quantified sum, are matters that are required to be decided after considering competing claims.
"Nowhere in the Act has the Legislature conferred such a power of adjudication or a power of quantifying the amount due to an employee on the Inspector. Specific powers have been stipulated, as can be exercised by the inspector. When specific powers of inspection and verification have been conferred on the inspector, without any power of adjudication, the intention of the legislature is explicit. As the term Inspector itself suggests, he is entitled to inspect, identify and even file complaints. His power stops with that, and it cannot be extended to confer the power of adjudication," said the court.
Human Sacrifice Case | Kerala High Court Dismisses Laila Bhagawal Singh's Bail Plea
Case Title: Laila Bhagaval Singh v. State of Kerala
Citation: 2023 LiveLaw(Ker) 5
The Kerala High Court dismissed the bail application moved by Laila Bhagawal Singh, one of the accused in the Human Sacrifice Case.
Justice Bechu Kurian Thomas observed that,"the active involvement of the petitioner in the crime and in another crime is asserted by the prosecution and the materials collected, prima facie reveal her involvement in the present crime...Having regard to the circumstances of the case and also taking note of the prima facie involvement of the petitioner in the crime, I am of the view that this is not a fit case where the petitioner can be released on bail."
Case Title: Jayadevi v. Narayana Pilla & Ors.
Citation: 2023 LiveLaw (Ker) 6
The Kerala High Court laid down that on the death of one among the testators, either in the case of joint Will or a mutual Will, the property left out by the deceased testator included in the Will alone would stand bound by the disposition made therein and it would not operate as against the property of the other testator, who is alive, till his/her death.
Justice P. Somarajan observed that where a clause has been incorporated in the Will stating that the surviving testator will not have any right to alter any of the dispositions made under the Will, the same should not be read in substitute of requirement of a mutual Will, unless it is supported by reciprocal demise.
Case Title: Sadanandan K.S. & Ors. v. Kerala Toddy Workers Welfare Fund Board & Ors.
Citation: 2023 LiveLaw (Ker) 7
The Kerala High Court held that availing of pension from the Scheme under Kerala Dairy Farmers' Welfare Fund Act, 2007 would not prohibit the same person from availing pension from the Scheme under the Kerala Toddy Workers Welfare Fund Act, 1969.
Justice Murali Purushothaman said neither the KTWWF Act nor the Kerala Dairy Farmers' Welfare Fund Act provides for any prohibition of membership in two welfare funds or in receiving benefits under two welfare fund schemes under two different Acts.
Case Title: Rajesh and Anr. v. The Station House Officer and Ors.
Citation: 2023 LiveLaw (Ker) 8
Observing the existence of a domestic relationship is sine qua non for seeking relief under the Protection of Women from Domestic Violence Act, the Kerala High Court has said it has become a common practice to convert some other dispute into a 'domestic violence complaint'.
The magistrates must not casually and mechanically issue summons in such cases, said the court. It directed the Registry to forward a copy of its judgment to all the Magistrates in the State.
Justice Kauser Edappagath observed that the Magistrate has to scrutinize the allegations in the application to ensure that it falls within the ambit of DV Act before issuing summons to the respondent, and to prevent the law from becoming a tool of harassment at the hands of the complainant.
Case Title: Chandra Chooden Nair S v. State of Kerala and Ors.
Citation: 2023 LiveLaw(Ker) 9
The Kerala High Court ordered action against government employees who participated in general strikes last year, on March 28 and 29, against Centre's economic policies.
A Division Bench consisting of Chief Justice S Manikumar and Justice Shaji P. Chaly reiterated that Government Employees who participate in general strikes, affecting the normal life of the public and Public Exchequer, are not entitled to be protected under Article 19(1)(c) of the Constitution. The provision protects the right to form associations or unions.
The Court in the case of G. Balagopalan v. State of Kerala and Others had held that there is no legal right in workers or associations, to call for a general strike or instigate the employees to strike, in the guise of the fundamental right guaranteed under Article 19(1)(c) of the Constitution.
Thus relying on the case, the Court observed that erring government servants are liable to be proceeded against in accordance with the provisions of Kerala Service Rules and Kerala Government Servants' Conduct Rules, 1960.
Case Title: Pappu Bawariya and Anr. v. District Collector Civil Station and Ors.
Citation: 2023 LiveLaw(Ker) 10
The Kerala High Court ordered the release of two children from Delhi who were sent to a shelter home alleging that they were being forced into child labour by selling articles on the streets to the custody of their parents.
In November 2022, the two children were nabbed by the Police alleging that they were being forced into child labour by selling articles on the streets. The Children were thereafter produced before the Child Welfare Committee and sent to shelter home.
The Writ Petition was filed for the parents of the children seeking direction to release the children to their custody.
Justice V G Arun while passing the order, said that,
"I am at a loss to understand as to how the activity of the children in helping their parents in selling pens and other small articles would amount to child labour. No doubt, the children ought to be educated, rather than being allowed to loiter on the streets along with their parents...I wonder as to how the children can be provided proper education while their parents are leading a nomadic life. Even then, the police or the CWC cannot take the children into custody and keep them away from their parents. To be poor being not a crime and to quote the father of our nation, poverty is the worst form of violence."
Case Title: Siraj v. State of Kerala and Abhilash v. State of Kerala and Anr.
Citation: 2023 LiveLaw (Ker) 11
The Kerala High Court observed that circulars or clarifications issued by the Central Government represent merely their understanding of the statutory provision and are not binding upon the Court as it is for the Court to declare what a particular provision of the statute says.
Justice A. Badharudeen while passing the order observed that a circular which is contrary to the statutory provisions has no existence in law.
"In the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent an expression of opinion...So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive," the Court said.
Other Significant Developments This Week
Plea Before Kerala High Court Challenges Appointment Of Calicut University VC M K Jayaraj
Case Title: Dr. T. Muhammedali v. Dr. M.K. Jayaraj & Ors.
A petition has been filed before the Kerala High Court challenging the appointment of the Vice Chancellor of Calicut University, Dr. M.K. Jayaraj.
The petition has been filed by Dr. T. Muhammedali, Associate Professor in an aided college affiliated to the Calicut University, for the issuance of the writ of quo warranto against Dr. Jayaraj.
Muhammedali has argued that the post of the VC is a public office and the vacancy of such post ought to be filled by following the procedure as provided in the UGC Regulations and when the UGC Regulations are silent, by following the procedure as contained in the State enactment. It has been pointed out that a notification is required to be issued by the Chancellor of State University as mandated under the Calicut University Act, 1975.
Kerala High Court Dismisses As Withdrawn Petition Challenging Appointment Of NUALS Registrar
Case Title: Adv. Sanjai D. Rajan v. The National University of Advanced Legal Studies & Ors.
The petition challenging the appointment of the Registrar of the National University of Advanced Legal Studies (NUALS) Mahadev M.G. has been withdrawn from Kerala High Court by the petitioner.
During the hearing, the Division Bench comprising Justice K Vinod Chandran and Justice C Jayachandran questioned the petitioner as to how he could file the plea before the court without filing a representation before the UGC, considering that the appointment had been made in the year 2014.
Pursuant to this, the counsels for the petitioner informed the court that he would be withdrawing the petition. The Bench permitted the same.
