Kerala High Court Weekly Round-Up: April 10 To April 16, 2023
Navya Benny
16 April 2023 9:40 AM GMT
Nominal Index [Citation: 2023 LiveLaw (Ker) 178-194]Suo Motu V The Secretary To Government 2023 LiveLaw (Ker) 178XXX v. YYY 2023 LiveLaw (Ker) 179Sumesh U. & Anr. v. The Revenue Divisional Officer, Palakkad & Ors. and Saresh Sanker & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 180XXX v XXX 2023 LiveLaw (Ker) 181Google Inc. v. XXXX & Ors. and other connected matters...
Nominal Index [Citation: 2023 LiveLaw (Ker) 178-194]
Suo Motu V The Secretary To Government 2023 LiveLaw (Ker) 178
XXX v. YYY 2023 LiveLaw (Ker) 179
Sumesh U. & Anr. v. The Revenue Divisional Officer, Palakkad & Ors. and Saresh Sanker & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 180
XXX v XXX 2023 LiveLaw (Ker) 181
Google Inc. v. XXXX & Ors. and other connected matters 2023 LiveLaw (Ker) 182
Surendra Babu v. State of Kerala & Ors. and Vellappally Natesan v. State of Kerala & Ors. 2023 LiveLaw (Ker) 183
Dr. Naveen Prakash Nautiyal V Union Of India 2023 LiveLaw (Ker) 184
Aji Krishnan V Union of India 2023 LiveLaw (Ker) 185
K Babu V Union Of India 2023 LiveLaw (Ker) 186
Saheer S V Union Of India 2023 LiveLaw (Ker) 187
State of Kerala v. Sreeram Venkitaraman and Wafa Najim @ Wafa Firoz v. State of Kerala 2023 LiveLaw (Ker) 188
Sebin Thomas v. Union of India & Ors. 2023 LiveLaw (Ker) 189
M. Sivasankar v. Union of India & Anr. 2023 LiveLaw (Ker) 190
K M Shaji V State of Kerala 2023 LiveLaw (Ker) 191
Chaithanya V Union of India 2023 LiveLaw (Ker) 192
Pannyan Raveendran v. Shamnad A. & Anr. 2023 LiveLaw (Ker) 193
Thomas J Unniyadan v R Bindu 2023 LiveLaw (Ker) 194
Judgments/Order This Week
Case Title: Suo Motu V The Secretary To Government
Citation: 2023 LiveLaw (Ker) 178
The Kerala High Court recently directed the Kerala State Legal Services Authority (KELSA) to review the steps taken by it to protect and rehabilitate children engaged in begging and child labour, as well as the steps taken to combat drug abuse among children.
The court also directed the Secretary to the Government of the Social Justice Department to monitor and review the initiatives taken by the Government in this regard.
A division bench of Justice S Manikumar and Justice Murali Purushothaman passed the order while closing a public interest litigation aimed at reducing the number of children involved in child labour, begging, and trafficking in the state.
Case Title: XXX v. YYY
Citation: 2023 LiveLaw (Ker) 179
The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country. It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.
It observed, "If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".
Case Title: Sumesh U. & Anr. v. The Revenue Divisional Officer, Palakkad & Ors. and Saresh Sanker & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 180
The Kerala High Court recently declared that the fees prescribed under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 with respect to conversion of a property purchased after December 2017, cannot be insisted if the property measures less than 25 cents.
Bench of Justice Anu Sivaraman rejected the contention that 'any property' purchased after December, 2017 would lose the exemption even when the said property was less then 25 cents, even prior to the transaction. It observed, "A reading of the provisions of the Act, the Rules, the Schedule as well as Ext.R3(a) Government Order would make it amply clear that the exemption would be lost only in case there is a transaction after 30.12.2017 by which, a property having a larger extent is fragmented to make the individual parcels of land of an extent of less than 25 cents."
Case Title: XXX v XXX
Citation: 2023 LiveLaw (Ker) 181
The Kerala High Court on Monday held that when an application is filed seeking time bound disposal of a matter, the family court cannot dispose such an application passing an order that the case “will be disposed of at the earliest”.
A division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar observed
“… if the applicant has stated any justifiable or valid reason for early hearing or time bound disposal, the Family Court has to pass an order in that interlocutory application ordering early hearing or time-bound disposal of that case or cases, specifying the time limit in that order."
Case Title: Google Inc. v. XXXX & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 182
The Kerala High Court recently refused to expunge remarks from its Right to be Forgotten judgment, whereby it was opined that Google is not 'content blind' and it cannot shirk liability to remove judgments and content disclosing personal details of parties.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen dismissed the petition filed by the search engine platform, seeking review of its judgment rendered last year in Vysakh K.G. v. Union of India & Anr. and other connected cases [2022 LiveLaw (Ker) 665].
Case Title: Surendra Babu v. State of Kerala & Ors. and Vellappally Natesan v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 183
The Kerala High Court paved for trial to proceed against SNDP Yogam General Secretary Vellappally Natesan, in a case alleging misappropriation of funds.
The Single Judge Bench of Justice Ziyad Rahman A.A. set aside the permission granted by a Magistrate Court in Kollam to conduct further investigation. It noted that the request for further investigation was made by a former member of the investigation team, that too after his retirement. Stating that bonafides in making such a request is highly suspicious, the Court was prima facie satisfied that,
"...there is a calculated attempt to exonerate the accused, a very influential person, without even a trial".
The Court thus directed the CJM to conduct trial based on the final report already produced, as expeditiously as possible.
Case Title: Dr. Naveen Prakash Nautiyal V Union Of India
Citation: 2023 LiveLaw (Ker) 184
The Kerala High Court dismissed a batch of petitions that challenged the appointment of Prof. H Venkateshwarlu as the Vice Chancellor of the Central University of Kerala.
A division bench of Chief Justice S Manikumar and Justice Murali Purushothaman held that the selection and appointment of the VC was as per the provisions of the Central Universities Act, 2009 and the statutes thereunder: “The 3rd respondent has been appointed as Vice Chancellor, by the Visitor, the competent authority, as per the statutory provisions and is holding office with legal authority and there is no usurpation in office by the 3rd respondent. He has the necessary qualification and eligibility for the post. This Court will not sit in judgment over the wisdom of the Visitor in the choice of the person to be appointed as the Vice-Chancellor.”
Case Title: Aji Krishnan V Union of India
Citation: 2023 LiveLaw (Ker) 185
The Kerala High Court dismissed a petition seeking a time bound investigation by Customs and the Enforcement Directorate into the alleged role of Chief Minister Pinarayi Vijayan, former speaker P Sreeramakrishnan and other high ranking officials of the Chief Minister’s office on allegations of money laundering and gold smuggling using diplomatic channels
A single bench of Justice Bechu Kurian Thomas dismissed the petition observing that apprehensions of the petitioner that proper investigation was not being conducted in the gold smuggling case was baseless: “The Customs as well as the Enforcement Directorate, have conducted or are conducting proper investigations. There are also no reasons to assume that if the involvement of any person is revealed in the investigation, they will not be proceeded against. For, the dictum “Be you ever so high, the law is above you” applies with equal vigour to all, irrespective of status or position.”
Case Title: K Babu V Union Of India
Citation: 2023 LiveLaw (Ker) 186
The Kerala High Court refused to interfere with its earlier direction to translocate the wild tusker ‘Arikomban’ to Parambikulam Tiger Reserve despite the review petition filed by MLA K Babu citing apprehensions of residents near the proposed site of translocation about the elephant entering human settlements.
The court on 5th April had directed to tranquilise and translocate the elephant along with a radio collar to Parambikulam Tiger Reserve on the advice of an expert committee due to concerns raised by the residents of Anayirangal region about the elephant entering areas of human settlement and causing damage.
A division bench of Justice A.K.Jayasankaran Nambiar and Justice Gopinath P while refusing to allow the review petition observed: “We are also appalled by the total insensitivity demonstrated to the plight of the animal in question, which has been directed to be translocated from its original habitat to a new one only because there is every likelihood that the availability of plentiful natural food and water resources there would deter it from foraging in human settlements. The fact that the elephant will be radio-collared and its movements monitored by the forest/wildlife officials ought to have sufficed to allay the apprehensions of the petitioner, as the ‘surprise’ element of any conflict situation is effectively removed through the monitoring mechanism instituted and now in place.”
Case Title: Saheer S V Union Of India
Citation: 2023 LiveLaw (Ker) 187
The Kerala High Court directed the Employees Provident Fund Organization to modify its online system to allow employees/pensioners to comply with the directives of the Supreme Court for opting for higher pension without having to provide copies of the option under paragraph 26(6) of the Employees Provident Fund Scheme, 1952.
A single bench of Justice Ziyad Rahman while granting the interim order observed: “the Employees Provident Fund Organization and the authorities under the same are directed to make adequate provisions in their online facility to enable the employees/pensioners to furnish the options in tune with the directions of the Honourable Supreme Court, without the production of the copies of option under paragraph 26(6) of the Scheme, 1952 and the details thereof, for the time being”.
Case Title: State of Kerala v. Sreeram Venkitaraman and Wafa Najim @ Wafa Firoz v. State of Kerala
Citation: 2023 LiveLaw (Ker) 188
The Kerala High Court set aside a Sessions Court order dropping culpable homicide charges against IAS Officer Sreeram Venkitaraman in the infamous road rage case.
The order was however upheld to the extent it discharged Venkittaraman under Sections 184 and 185 of the Motor Vehicles Act, that relates to dangerous driving and drunken driving, and Section 3(2) of the Prevention of Damage to Public Property.
Justice Bechu Kurian Thomas observed, "Driving vehicles after consuming alcohol can lead to temporary or partial impairment of cognitive faculties. This disability can lead to error in judgment relating to distance calculation, distinguishing objects, speed control and even other factors that are essential for safe driving. Blurred vision and reaction to sudden stimuli are also known consequences of alcohol consumption. Thus, when a motor vehicle is driven after consuming alcohol, road accidents become a predictable consequence. In such a scenario, attributing knowledge to the driver of the vehicle that death can be likely consequence of drunken driving is legally tenable".
Case Title: Sebin Thomas v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 189
The Kerala High Court dismissed an Advocate's PIL against release of Malayalam movie 'Kurup' which is based on the biography of a proclaimed offender named Sukumara Kurup. The petitioner had sought protection of right to privacy of ‘proclaimed offenders’, under Article 21 of the Constitution of India.
The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman observed that although the story does get inspiration from the life story of a proclaimed offender, it did not however indicate that the story was the complete life story of that person, nor that publication of the same would affect his right to privacy.
LIFE Mission Case: Kerala High Court Dismisses M Sivasankar's Bail Plea
Case Title: M. Sivasankar v. Union of India & Anr.
Citation: 2023 LiveLaw (Ker) 190
The Kerala High Court dismissed the bail application filed by M Sivasankar, former Principal Secretary to the Chief Minister of Kerala, in the money laundering case related to alleged corruption in the LIFE (Livelihood, Inclusion and Financial Empowerment) Mission project, a housing project of the Kerala Government for the homeless.
Justice A. Badharudeen observed that although the petitioner could not be regarded as a person who would flee from trial,
"...However, his propensity to tamper with the evidence and to influence witnesses could be foreseeable, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala".
Case Title: K M Shaji V State of Kerala
Citation: 2023 LiveLaw (Ker) 191
The Kerala High Court quashed the proceedings initiated by the Vigilance and Anti Corruption Bureau against Indian Union Muslim League (IUML) leader and former MLA K M Shaji, in connection with the plus two bribery case.
A single bench of Justice Kauser Edappagath quashed the FIR as it was of the view that no prima facie case was made out against Shaji:
“I conclude that the allegations made in Annexure A FIR and the evidence collected in support of the same, even if believed in toto, do not prima facie disclose a cognizable offence or make out a case against the applicant. Hence, no purpose will be served in proceeding with the matter further. Accordingly, all further proceedings against the petitioner pursuant to Annexure A FIR are hereby quashed.”
Case Title: Chaithanya V Union of India
Citation: 2023 LiveLaw (Ker) 192
The Kerala High Court refused to set aside the order of a Special NIA court denying bail to two Andhra Pradesh natives for their alleged involvement in the terrorist organization CPI(Maoists).
The accused persons are alleged to have been involved in radicalizing youth and persuading them to join the terrorist organisation. The AP natives are said to have been recruiting members to Dalams, the armed wing of the CPI (Maoist), in Wayanad area. They have also been accused of providing them with training, with the aim of posing a threat to the unity, integrity, and sovereignty of India.
A Division Bench of Justice Alexander Thomas and Justice C S Sudha denied bail to the accused persons noting that the offences alleged against them are of a ‘grave and serious’ nature: “Since there are materials to show that A-5 & A-6 have been actively involved in the above terrorist organization and that too, located in various States, there is serious likelihood of both of them absconding or fleeing away from the long arm of the law, in case they are released on bail”.
Case Title: Pannyan Raveendran v. Shamnad A. & Anr.
Citation: 2023 LiveLaw (Ker) 193
The Kerala High Court recently held that the Kerala Lok Ayukta cannot investigate into matters relating to selection of candidates by political parties for contesting election.
The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman while considering a petition filed by the State Secretary of Communist Party of India (CPI), Pannyan Raveendran, challenging the order of the Kerala Lok Ayukta finding such a complaint to be maintainable, and observed that,
"A political party has the discretion to choose a candidate of its choice subject to the requirement of providing necessary information regarding criminal antecedents etc; of the candidate so that the voter can exercise his right to franchise in an effective manner".
Case Title: Thomas J Unniyadan v R Bindu
Citation: 2023 LiveLaw (Ker) 194
The Kerala High Court dismissed a petition challenging the election of Education Minister R Bindu from Irinjalakuda Constituency in the General Election held in 2021 to the Kerala Legislative Assembly.
The petition was filed seeking a declaration that her election was void on the ground that she misrepresented herself as “Professor R Bindu”, even though she was not a designated Professor, in order to induce voters. The petition also alleged that she indulged in other corrupt practices in contravention of the provisions of the Representation of People Act, 1951.
A single bench of Justice Sophy Thomas observed: “showing the name of the 1st respondent as ‘Prof.R.Bindu’ in Annexures-E to G notice, pamphlet etc., and doing election campaign also in that name will not amount to corrupt practice as envisaged under Section 123(2) of the RP Act, as the Returning Officer corrected her name as Prof.R.Bindu in the list of contesting candidates and Ballot paper, as per the Proviso to Rule 8(2) of the Conduct of Election Rules, 1961, on being satisfied as to the genuineness of her request in Annexure-C, as she was popularly known as Prof.R.Bindu.”
Other Significant Developments This Week
Kerala High Court Asks Centre To Submit Data On Number Of Persons Suffering From Breast Cancer
Case Title: X v. Union of India & Ors.
The Kerala High Court recently directed the Union of India to collect data regarding persons suffering from different types of Breast Cancer from the Indian Council of Medical Research, New Delhi.
Justice Shaji P. Chaly was dealing with the petition wherein it had taken suo motu cognizance of the unaffordability of patented life-saving medicines, in light of the death of the erstwhile petitioner who had espoused this cause and had not not been able to afford the Ribociclib drug for treatment of her breast cancer.
"Since it is an innocuous prayer sought for by the Amicus Curiae in the larger public interest, there will be a direction to the Ministry of Health and Family Welfare to collect the details from the sixth respondent and submit a report before this Court within one month," the court said.
Case Title: K. Babu v. Union of India & Ors.
A review petition has been filed in the Kerala High Court by the Nenmara MLA K. Babu, against the order of the High Court dated April 5, 2023, directing the relocation of wild tusker 'Arikomban' to Muthuvarachal/Orukomban within the limits of Parambikulam Tiger Reserve.
The elephant had allegedly been foraging into the Chinnakanal area in the Idukki District, and causing damage to the property in the human settlement areas. Vide its order dated March 25, 2023, the Court had directed the Forest and Wildlife Department to refrain from capturing the tusker.
Justice J Chelameswar, former Supreme Court Judge, said that in his dissenting judgment in the NJAC (National Judicial Appointments Commission) case, he never suggested the handing over of the selection of judges to the executive.
“I know the dangers of it more than anyone else”, the former Apex Court Judge said in this regard. He was speaking on the topic "Is Collegium Alien To The Constitution?' at a seminar organised by the Kerala High Court Unit of the Bharatiya Abhibhashaka Parishad on Tuesday at the Kerala HC auditorium.
Explaining his dissenting opinion in the landmark NJAC judgement he said, “Nowadays, on TV and in media it is propounded that Chelameswar said hand over the reins to the executive. That was not the issue before me, the question was whether the Parliament had the necessary constitutional power to make such an amendment and if this amendment is made, whether that would be consistent with the basic structure of the constitution. I held yes for both questions. All that I said in that judgment was this.”
A full court reference was held on Thursday at the Kerala High Court in honour of Chief Justice S Manikumar who is retiring on 24th April.
Speaking at the event Chief Justice Manikumar who was formerly a judge of the Madras High Court said "the warmth with which I was received, the affection shown by members of the Bar, the registry, the people of Kerala and my beloved brothers and sisters of this court, made me realise the bond between Kerala and Tamil Nadu". He thanked the judges of the court and the court staff for helping him discharge his duties.
