Kerala High Court- Weekly Round-Up: December 11- December 17, 2023
Tellmy Jolly
18 Dec 2023 3:25 AM GMT
Nominal Index [Citations: 2023 LiveLaw (Ker) 719- 737]Maya Venu v. Power Grid Corporation of India & Ors. and other connected matters, 2023 LiveLaw (Ker) 719P.H.Fathima V State Of Kerala, 2023 LiveLaw (Ker) 720Satheesh Babu v. State of Kerala & Anr., 2023 LiveLaw (Ker) 721K.N. Abdul Gafoor v. M/S Kasmisons Builders Pvt. Ltd. & Ors., 2023 LiveLaw (Ker) 722Sajani V Sabu, 2023...
Nominal Index [Citations: 2023 LiveLaw (Ker) 719- 737]
Maya Venu v. Power Grid Corporation of India & Ors. and other connected matters, 2023 LiveLaw (Ker) 719
P.H.Fathima V State Of Kerala, 2023 LiveLaw (Ker) 720
Satheesh Babu v. State of Kerala & Anr., 2023 LiveLaw (Ker) 721
K.N. Abdul Gafoor v. M/S Kasmisons Builders Pvt. Ltd. & Ors., 2023 LiveLaw (Ker) 722
Sajani V Sabu, 2023 LiveLaw (Ker) 723
Praveena Ravikumar v State Election Commission & Connected Case, 2023 LiveLaw (Ker) 724
Abdul Majeed v. State of Kerala & Anr., 2023 LiveLaw (Ker) 725
Animals and Nature Ethics Community (ANEC) v. Union of India & Ors., 2023 LiveLaw (Ker) 726
Dr. Athira P. v. State of Kerala & Ors. and connected matter, 2023 LiveLaw (Ker) 727
State of Kerala & Ors. v. P.V. Kuryan, 2023 LiveLaw (Ker) 728
B Suresh v Chief Engineer & Administrator, 2023 LiveLaw (Ker) 729
Akhil S Kumar v Bar Council of India, 2023 LiveLaw (Ker) 730
Vibin Meleppuram v. Denny Thomas & Anr., 2023 LiveLaw (Ker) 731
Baburaj & Ors. v. Janeesh P.S. & Ors. and connected matters, 2023 LiveLaw (Ker) 732
Rama v. State of Kerala & Anr., 2023 LiveLaw (Ker) 733
Asokan K M v State Of Kerala, 2023 LiveLaw (Ker) 734
Jayakumar J. & Anr. v. State of Kerala & Ors., 2023 LiveLaw (Ker) 735
Badha Ram v Intelligence Officer, 2023 LiveLaw (Ker) 736
Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter, 2023 LiveLaw (Ker) 737
Judgment/Orders
Case Title: Maya Venu v. Power Grid Corporation of India & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 719
The Kerala High Court clarified that under Section 10(d) of the Telegraph Act, 1885, the compensation for damages sustained by landowners is not confined to the initial cutting of trees, but also if any further work in the property results in damages to the landowner.
"By using the terminology 'any damage' the legislature has consciously widened the landowners' right to claim compensation. The compensation for damage sustained is therefore not confined to the initial cutting of trees and drawing of lines. If the telegraph authority does any further work in the property after drawing the lines and such action results in the landowner sustaining damage, he can claim compensation, even if he was paid compensation for the damage sustained earlier. The above reasoning is supported by the concept of continuing cause of action, whereby a cause action once arisen will continue and go on, if the act complained of is continuously repeated. Yet another reason being that, every work done in a person's property by another without permission, infringes upon the owner's right to enjoy his property without let or hindrance," Justice V.G. Arun observed.
Case title: P.H.Fathima V State Of Kerala
Citation: 2023 LiveLaw (Ker) 720
The Kerala High Court observed that as per Section 13 of the Kerala Building Tax Act 1975, the District Collector may exercise revisional power against an assessment order. The Court made it clear that the revisional power of the District Collector was not just limited to an order passed in appeal by the Revenue Divisional Officer.
Aggrieved by the rejection of the assessment order by the District Collector in revision, the petitioner has approached the High Court. Justice Dinesh Kumar Singh while quashing the order of the District Collector stated thus: “From the bare perusal of Section 13, it can be gathered that the District Collector may exercise the revisional power against the assessment order, and it is not limited only to the order passed in appeal under Section 11 by the Revenue Divisional Officer. Of course, the power of revision against the assessment order or the appellate order is to be exercised within the parameters provided under Section 13.”
Pala Nun Murder | Kerala High Court Confirms Accused's Murder Conviction; Sets Aside Rape Charge
Case Title: Satheesh Babu v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 721
The Kerala High Court confirmed the conviction of the 38 year old accused of murdering a sexagenarian nun in the year 2015 under Section 302 of IPC.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John discerned that the circumstantial evidence adduced by the prosecution established beyond doubt that the accused had caused the death of the nun, although there was no evidence as regards the weapon used by him to cause her death.
It however set aside the conviction under Section 376 IPC for rape, since there was no evidence as to the time of the death of the victim for determining whether she had been alive at the time of commission of rape.
Case Title: K.N. Abdul Gafoor v. M/S Kasmisons Builders Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Ker) 722
The Kerala High Court laid down that the National Company Law Tribunal (NCLT) can only direct the Company to file its objections along with the statement of affairs when a petition for winding up of the Company before the Tribunal had been filed by any person other than the Company itself.
Justice C. Jayachandran, passed the order on perusing Section 274(1) of the Companies Act, which stipulates the 'directions for filing statement of affairs'.
Parties Cannot Be Penalised For Belated Issuing Of Certified Copy By Family Court: Kerala High Court
Case title: Sajani V Sabu
Citation: 2023 LiveLaw (Ker) 723
The Kerala High Court observed that belatedly issuing a certified copy of an order cannot be a reason to penalize the parties, who have done no wrong.
Justice C S Dias relied upon Jang Singh vs Brijlal and others (1966) to refer to the legal maxim actus curiae neminem gravabit to state that a mistake committed by the Court should not prejudice a litigant.
“It needs no second thought to understand that there was laches on the part of the Family Court in belatedly issuing the certified copy. But, that cannot be a reason to penalise the revision petitioners, who have done no wrong. The revision petitioners are entitled to the entire arrears of maintenance claimed in Annexure A2 application.”, the Court stated.
Case title: Praveena Ravikumar v State Election Commission & Connected Case
Citation: 2023 LiveLaw (Ker) 724
The Kerala High Court upheld an order of the State Election Commission which observed that the parties defected and were disqualified for their failure to follow the written instructions issued to them by the party whip. It was alleged that the whip was served without authority at the old address and was incomplete and improper.
Upholding the validity of the notice served, the Court observed that the failure to serve notice was attributable to the addressee and not the sender when it was sent to the correct address and was returned as unclaimed or the addressee left. It further held that it was the responsibility of the addressee to leave a new address with the postal authorities when there was a change in the address.
Justice Bechu Kurian Thomas relied upon the Apex Court decision in M/s Madan and Co. v. Wazir Jaivir Chand (1989) and held thus:
“Apart from the above, if the notice sent to the correct address is returned either as unclaimed or as addressee left, the failure to serve the notice can only be attributed to the addressee and not to the sender. In such circumstances, the addressee should leave necessary instructions with the postal authorities either to redirect the letter to his new address or authorize a person to receive such postal articles. Failure to provide the new address to the postal authorities cannot prejudice the sender in such circumstances.”
Case Title: Abdul Majeed v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 725
The Kerala High Court laid down that the Juvenile Justice (Care and Protection of Children) Act, 2000 ('JJ Act, 2000') would be applicable in revision, upon the conviction and sentence of a 49 year old person in respect of an offence committed by him in the year 1991, at the age of 17 years, when the Juvenile Justice Act, 1986 was in force.
Taking note of an Explanation added to Section 20 of the JJ Act, 2000, by virtue of an amendment which came into force in 2006, Justice G. Girish observed that the determination of juvenility of a juvenile in a pending case at the time of commencement of 2000 Act shall be in terms of Section 2(l) of the JJ Act, 2000, even if the juvenile ceases to be so on or before the date of commencement of the Act.
Case Title: Animals and Nature Ethics Community (ANEC) v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 726
The Kerala High Court dismissed a Public Interest Litigation (PIL) that had been filed challenging the Order that had been issued by the Principal Chief Conservator of Forests and the Chief Wildlife Warden directing appropriate steps to be taken to shoot the tiger that had attacked and partially eaten a farmer in Wayanad.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun imposed a cost of Rs. 25,000/- while dismissing the plea.
Case Title: Dr. Athira P. v. State of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 727
In a significant ruling, the Kerala High Court addressed the disadvantages that women may face due to their biological differences from men, in the context of getting opportunities in public employment. The Court said that the rules relating to public employment must accommodate the concerns of pregnant women and young mothers, so that they don't face discrimination.
The Division Bench comprising Justice A. Muhamed Mustaque and Shoba Annamma Eapen was of the view that, despite standing on equal footing along with men with respect to consideration in the affairs or chances in the public employment, biological differences of women, such as motherhood, may often result in indirect discrimination.
Case Title: State of Kerala & Ors. v. P.V. Kuryan
Citation: 2023 LiveLaw (Ker) 728
The Kerala High Court held that as an employer, the Government ought not to enquire into the private affairs of a Government servant unless any manifest misconduct is expressed in their activities that warrants action to be taken.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen noted that in such cases, it would be for the affected persons to initiate such action as against any moral conduct of the Government servant, and not for the Government to conduct an enquiry into the private affairs of the employee.
Case title: B Suresh v Chief Engineer & Administrator
Citation: 2023 LiveLaw (Ker) 729
The Kerala High Court held that a long period of absence from service without prior intimation or permission would amount to abandonment of service. It observed that abandonment of service means an act of intentionally or voluntarily abandoning service.
In this case, the Court found that the petitioner remained absent for almost 17 years without any prior intimation or permission and it would amount to abandonment of service.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen did not interfere with the order of the Tribunal that terminated his service due to long absence.
Kerala HC Allows A Law Grad To Enroll With State Bar Post-Deadline By Submitting Application With Provisional Degree Physically
Case title: Akhil S Kumar v Bar Council of India
Citation: 2023 LiveLaw (Ker) 730
The Kerala High Court allowed a law graduate to enrol in the upcoming enrollment ceremony scheduled to be held on 17th December 2023 by submitting a physical application before the Bar Council of Kerala along with his Provisional Degree Certificate.
In this case, the petitioner was unable to apply for enrollment within the deadline, as he did not possess a Provisional Degree Certificate then.
The Court allowed the petitioner to enroll in the upcoming enrollment ceremony on finding that he had obtained his Provisional Degree Certificate. However, the Court clarified that this shall not be a precedent and directed the Bar Council to obtain verification from the police and allow the petitioner to enrol on 17th December 2023.
“In the case at hand, since the petitioner has already obtained the Provisional Degree Certificate and since the learned Standing Counsel for the University affirms that it is a genuine one, I deem it appropriate to allow the prayers of the petitioner…..The petitioner will be allowed to make a physical application for enrollment, along with all applicable fees and charges. This shall be accepted by the Bar Council of Kerala before the working hours of today (14.12.2023). On such application being received, liberty is reserved to the Bar Council of Keralato obtain verification from the Police, as may be necessary; and they will then allow the petitioner to be enrolled on 17.12.2023”, Justice Devan Ramachandran stated.
Case Title: Vibin Meleppuram v. Denny Thomas & Anr.
Citation: 2023 LiveLaw (Ker) 731
The Kerala High Court reiterated that even a blank cheque leaf which has been voluntarily signed by the drawer, towards payment, would attract presumption under Section 139 of the Negotiable Instruments Act ('NI Act'), in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability.
Relying upon the decisions rendered by the Apex Court in Bir Singh v. Mukesh Kumar (2019), and Oriental Bank of Commerce v. Prabodh Kumar Tewari (2022), the Single Judge Bench of Justice P.G. Ajithkumar reiterated that in such an instance, it would be immaterial whether the cheque had been filled in by any person other than the drawer. It added that the evidence of a hand-writing expert on whether the drawer had filled in the details in the cheque would also be immaterial to determining the purpose for which the cheque was handed over.
Case Title: Baburaj & Ors. v. Janeesh P.S. & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 732
The Kerala High Court has permitted aggrieved Municipal Councillors to challenge the decision of the Council regarding the identification of a prospective licensee for running 'Bini Tourist Home', a building owned by the Thrissur Municipal Corporation, before the State Authority.
The matter pertains to the eruption of an alleged raucous at the meeting of the Corporation Council, following disputes regarding the Council's identification of a licensee for running the tourist home.
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun permitted the aggrieved Councillors to challenge the decision taken by the Council before the State authority within one week.
Case Title: Rama v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 733
In a significant decision, the Kerala High Court underscored the duty of jail authorities to consider applications moved by convicts and relatives of convicts for emergency leave, ordinary leave, and so on, within a fixed time frame.
Justice P.V. Kunhikrishnan took note that there were several petitions before the Court moved by convicts and their close relatives for getting emergency leave, ordinary parole, and so on. The Court therefore proceeded to issue a slew of directions on processing such applications, and issuing appropriate orders in that regard within three weeks from the date of receipt of the same. It further directed such orders to be communicated to the convicts and their relatives within a week of passing the Order.
Case Name: Asokan K M v State Of Kerala
Citation: 2023 LiveLaw (Ker) 734
The Kerala High Court closed the Habeas Corpus petition filed by the father of Dr Akhila @ Hadiya alleging that his daughter had been missing since the last month and they were unable to contact her.
A division bench comprising Justice Anu Sivaraman and Justice C. Pratheep Kumar observed that Hadiya is not under any illegal detention and thus the Habeas Corpus Petition was not maintainable. The Court further noted that Hadiya is living her life freely and is not under any illegal custody.
Case Title: Jayakumar J. & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 735
The Kerala High Court has quashed an order issued by the Travancore Devaswom Board which permitted the conduct of 'Nava Kerala Sadas' on Chakkuvally Prabrahma Temple premises.
The Division Bench comprising Justice Anil K. Narendran and Justice G. Girish passed the order on a plea filed by two devotees of the temple alleging blatant violation of provisions of the Travancore-Cochin Hindu Religious Institutions Act, 1950, and judgments of the Apex Court and High Court by which the temple property was being misused to conduct Nava Kerala Sadas.
Case title: Badha Ram v Intelligence Officer
Citation: 2023 LiveLaw (Ker) 736
The Kerala High Court made it clear the officials can invoke the power to arrest under Section 69 of the Kerala State Goods and Services Act, 2017 if there was a reasonable belief that an offence under Section 132 was made out and that custodial interrogation was necessary.
Justice Mohammed Nias C.P. stated that the accused can be certainly arrested to prevent any possibility of tampering with the evidence or intimidating or influencing witnesses and to ensure a proper investigation.
“The power to arrest under Section 69 can be invoked if the Commissioner has a reason to believe that the person has committed offences that are prescribed and which are punishable under Section 132 of the CGST Act, 2017. Thus, the reference to Section 132 in Section 69 is only to indicate the nature of the offences based on which reasonable belief is found and recorded by the Commissioner to pass an order for arrest…… But, once the ingredients of the offence are made out, the Commissioner or the competent authority can determine if the offender is to be arrested or not.”
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement and connected matter
Citation: 2023 LiveLaw (Ker) 737
The Kerala High Cout recorded the submissions of the Enforcement Directorate (ED) that the summons issued by it to the Kerala Infrastructure Investment Fund Board (KIIFB) and former Minister, Dr. T.M. Thomas Issac, in relation to the masala bonds case would be withdrawn.
Allowing the plea of Isaac and partly allowing that of KIIFB, the Single Judge Bench of Justice Devan Ramachandran clarified that it had not entered into the merits of the investigation carried out by the ED, including as to whether it is maintainable, or liable to be continued or deserving to be continued and, added that all such issues were left open.
Other Significant Developments This Week
Case Title: XXX v. Child Welfare Committee
Case Number: WP(C) 35823/ 2023
“Had you been the biological parents, would you decide not to keep the child? This is a case which shows me that adoptive; parents are different. If a child is not well or has some disorder, will parents say that they don't want the child?" the Kerala High Court lamented, while considering the plea moved by the adoptive parents seeking the permission of the Court to annul the adoption of a girl (now a major).
Justice Devan Ramachandran noted that there were several cases wherein children beat up, and even kill their parents.
"There are several Senior Citizens coming before this Court and several such cases. Since the parents in those cannot annul it, they don't. You (the petitioners) seek that because you have the privilege of annulment. If those parents had the liberty, they'd have written those aren't their children. This is an adoption which happened. You saw the girl, now you say she has behavioural problem. Fact remains that soon after you came here, there were problems between mother and child. There was no attempt from parents, either... Had you been biological parents, would you have decided to do the same," the Court pointedly asked the petitioners.
Case Title: Justin & Ors. v. State of Kerala & Ors.
Case Number: CRL.MC NO. 10334 OF 2023
The Kerala High Court took exception to a Magistrate for dismissing a bail application when a plea was already pending before the High Court for quashing the proceedings.
Justice P.V. Kunhikrishnan expressed his dissatisfaction towards the Magistrate for dismissing the plea for bail in the present circumstances.
Case Title: K Sivanandhan v. State of Kerala and other matters
Case Number: WP(C) NO. 23267 OF 2023, WP(C) NO. 24835 OF 2023, WP(C) NO. 25152 OF 2023, WP(C) NO. 25410 OF 2023, WP(C) NO. 25575 OF 2023
The Kerala High Court observed that banks cannot reduce credit ratings of farmers solely on account of Paddy Receipt Sheet (PRS) loan.
Justice Devan Ramachandran said that banks cannot reduce the credit rating of farmers, in violation of the judgment of the court which was disposed of unequivocally stating that farmers who sell their paddy to the Government of Kerala through Supplyco under the tripartite agreement cannot be treated as borrowers. It held:
“The judgment of this Court is unambiguous, and the banks were parties to it. Therefore, even if the SupplyCo has taken a stand that farmers are borrowers, which appears to be extremely unfortunate; the banks cannot act as if the farmers are the borrowers. Therefore, if they had given any input to the CIBIL negatively on the credit rating of the farmers solely on the account of PRS loan, it would amount to a violation of the judgment.”
Case Title: P.G. Manu v. State of Kerala
Case Number: Bail Appl. 10796/ 2023
The Kerala High Court directed in-camera proceedings to be held for hearing the case against former Senior Government Pleader P.G. Manu who is presently facing allegations of sexual assault of a female client in the guise of providing legal assistance for her.
“Based on the submissions of the Additional Director General of Prosecutions, it is better that hearing of case is held in camera. Considering the above request, proceedings will be held on 4 PM on 14.12.2023 in camera.”, Justice Gopinath P stated in the anticipatory bail application moved by the petitioner.
Kerala High Court Stays Two Student Nominations Made By Chancellor To Kerala University Senate
Case Title: Nanda Kishore & Anr. v. Chancellor, University of Kerala & Ors.
Case Number: W.P. (C) 41766 of 2023
The Kerala High Court stayed two student nominations made by the Chancellor to the Senate of the Kerala University.
Justice T.R. Ravi issued the interim order today.
The petitioners in this case, who had performed well in Fine Arts and Sports respectively, averred that as per Chapter IV Section 17 of the Kerala University Act, 1974, the Chancellor ought to nominate four students having outstanding abilities (one each in Humanities, Science, Sports and Fine Arts) to the Senate of the University.
Kerala High Court Issues Guidelines For Crowd Management Of Pilgrims At Sabarimala Temple During Mandala-Makaravilakku Festival
Case title: Suo Moto v State of Kerala
Case number: SSCR Nos.29, 36, 41 and 42 of 2023
The Kerala High Court has issued directions for crowd management of pilgrims at Sabarimala during the Mandala- Makaravilakku festival season. The Division Bench comprising, Justice Anil K. Narendran and Justice G. Girish issued directions to Police, officials of Motor Vehicles Department and Travancore Devaswom Board for crowd management.
The Court passed the above order in a suo moto petition considering the report of the Special Commissioner, Sabarimala regarding crowd management during the Mandala- Makaravilakku festival season. The Special Commissioner had submitted a report before the Court regarding steps to be taken to provide adequate facilities to pilgrims at Sabarimala.
Case title: Suo Moto v State of Kerala
Case number: SSCR Nos.29, 36, 41 and 42 of 2023
The Kerala High Court (December 13) issued various guidelines to the State Police Chief for vigilant crowd management of pilgrims at Sabarimala during the Mandala- Makaravilakku festival season.
The Division Bench comprising, Justice Anil K. Narendran and Justice G. Girish directed the State Police Chief to be vigilant over crowd management at Sabarimala and ordered thus:
“We deem it appropriate to direct the 2nd respondent State Police Chief to have a constant vigil over crowd management activities in connection with Mandala-Makaravilakku festival season of 1199 ME. The State Police Chief shall collect regular inputs on crowd management from the Chief Police Co-ordinator, Sannidhanam and also the Special Police Officers at Nilakkal, Pamba and Erumeli.”
Case title: Suo Moto v State of Kerala
Case number: SSCR Nos.29, 36, 41 and 42 of 2023
The Kerala High Court (December 14) issued another set of guidelines for ensuring that the pilgrims at Sabarimala are not exploited by collection of higher fees/charges at parking grounds or by persons conducting hotels and restaurants.
The Court issued the guidelines while hearing a suo moto petition where it was considering issues regarding crowd management of pilgrims at Sabarimala during the Mandala- Makaravilakku festival season.
Taking note of the fact that the High Court registry received around 300 complaints by email regarding various issues faced by pilgrims in Sabarimala, the Division Bench comprising, Justice Anil K. Narendran and Justice G. Girish observed that the pilgrims should be made aware of the orders issued by the Court. It noted that most of the grievances raised by the pilgrims were already addressed by the Court through its previous orders.
