Kerala High Court Weekly Round-Up: March 13 To March 19, 2023
Navya Benny
19 March 2023 3:00 PM GMT
Nominal Index [Citation: 2023 LiveLaw (Ker) 131-143]Anil MP v Capital Finserv Ltd 2023 LiveLaw (Ker) 131Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters. 2023 LiveLaw (Ker) 132George Kurian @ Pappan v. State of Kerala & Anr. 2023 LiveLaw (Ker) 133Haris and Others v State of Kerala and Another 2023 LiveLaw (Ker) 134The Village International School & Anr v. State...
Nominal Index [Citation: 2023 LiveLaw (Ker) 131-143]
Anil MP v Capital Finserv Ltd 2023 LiveLaw (Ker) 131
Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters. 2023 LiveLaw (Ker) 132
George Kurian @ Pappan v. State of Kerala & Anr. 2023 LiveLaw (Ker) 133
Haris and Others v State of Kerala and Another 2023 LiveLaw (Ker) 134
The Village International School & Anr v. State of Kerala & Ors. 2023 LiveLaw (Ker) 135
Harris T.K. v. Greater Cochin Development Authority & Anr. 2023 LiveLaw (Ker) 136
Nithin V State of Kerala 2023 LiveLaw (Ker) 137
Vinu Madhavan V State Bank Of India 2023 LiveLaw (Ker) 138
Dayal v. State of Kerala & Anr. 2023 LiveLaw (Ker) 139
New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors. 2023 LiveLaw (Ker) 140
I.B. Satheesh M.L.A. v. The Chancellor, APJ Abdul Kalam Technological University & Ors. 2023 LiveLaw (Ker) 141
Indira v. State of Kerala & Anr. 2023 LiveLaw (Ker) 142
Nithin Ramakrishnan V Union Of India 2023 LiveLaw (Ker) 143
Judgments/Order This Week
Case Title: Anil MP V Capital Finserv Ltd
Citation: 2023 LiveLaw (Ker) 131
The Kerala High Court recently held that the Commercial Court shall not allow a written statement filed in a suit to be take on record if 120 days has passed since the date of service of summons.
A single bench of Justice C S Dias observed that under Section 16 of Commercial Courts Act, 2015, the Code of Civil Procedure,1908 will stand amended while being applied to commercial disputes as set out in the Schedule to the Commercial Courts Act. As a result, Orders V and VIII of the CPC have been amended by the Schedule. As per the amended provision, a defendant has to file the written statement within 120 days of the service of summons. If the defendant fails to do so, the right to file a written statement in the suit stands forfeited and the court will refuse to accept the written statement on record at a later stage.
Case Title: Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters.
Citation: 2023 LiveLaw (Ker) 132
The Kerala High Court on Monday modified the order of a single bench that directed the State to give effect to its 2018 decision regarding reservation for employment in favour of persons with disabilities in aided educational institutions and also to take immediate steps to address the backlog in the appointments in the arising vacancies.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas said:
1. The State's Educational Officers must provisionally approve appointments made for vacancies set aside for individuals with disabilities that arose between18.11.2018 and 08.11.2023, as long as the appointments are in order. These vacancies should be treated as temporary, and the approval will only be valid until the incumbents who are regularly appointed take charge. The officers should also ensure that the pay and allowances due to these individuals are disbursed. 2. If, despite following the detailed procedure prescribed by the government, regular appointments cannot be made for the vacancies mentioned in direction (1), the vacancies can be treated as substantive, and the approvals already granted can be made permanent. 3. Even if regular appointments are made for the vacancies mentioned in direction (1), the concerned teacher should be absorbed into the next immediate vacancy in the same school or any school under the same management, provided they are qualified for such appointment. The teachers should be treated as claimants under Rule 51A of Chapter XIVA of the Kerala Education Rules. 4. The Managers of all aided schools can hire individuals on a daily wage basis to fill vacancies that arose after November 8th, 2021, until they fully comply with the directions contained in the judgment of the single bench and the judgment in appeal.
Case Title: George Kurian @ Pappan v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 133
The Kerala High Court recently held that the three factors laid down in Susanta Ghosh v. State of West Bengal (2012) by the Apex Court while considering grant of bail to an accused, namely, chances of tampering with the evidence; chances of interfering with the investigation; and chances of absconding, are not exhaustive.
The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same.
Case Title: Haris and Others V State of Kerala and Another
Citation: 2023 LiveLaw (Ker) 134
The Kerala High Court recently refused to defer the trial of 15 persons who are accused of murdering BJP leader Ranjith Sreenivasan on account of political rivalry. The accused are said to be the Socialist Democratic Party of India/Popular Front of India (SDPI/PFI) workers. The accused persons allegedly had gathered in an unlawful assembly and committed Sreenivasan's murder with deadly weapons like hatchets and hammers in December 2021.
The investigation officer last year submitted the final report against accused 1 to 15 who allegedly committed the murder. Accused Nos.16 to 35, the petitioners who approached the high court, allegedly participated in the larger conspiracy which led to the murder. However the investigation officer reserved the liberty to submit an additional chargesheet after completing the investigation against them.
The plea filed by Accused 16 to 35 challenging the “split-chargesheet” filed by the investigation officer was dismissed by a single bench of Justice K Babu.
Case Title: The Village International School & Anr v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 135
The Central Board of Secondary Education (CBSE) recently informed the Kerala High Court that the 'Formal Prior Recognition Letter' issued by the State Government to schools under the Right of Children to Free and Compulsory Education Rules ('RTE Rules'), Kerala, is not confined to any particular period, and that no further such recognition letter would be necessary for extending the affiliation to the Board every five years.
It was further informed by the Standing Counsel of CBSE S. Nirmal that as per the latest Handbook issued by the CBSE, Schools also had the option to produce a 'System Generated Self Certification/System Generated DEO Certificate' with respect to the aspects mentioned in Appendix-III of the Affiliation Bye-Laws and that the CBSE would act upon the same while processing the application for continuation of affiliation.
The Single Judge Bench of Justice Devan Ramachandran, thus observed in this regard that the said stand of the CBSE, "renders the position ineluctably clear that, the schools now have the option of approaching them for continuing their self affiliation based on their own certification or a System Generated Certification; and it is only if the same is found to be insufficient and they being so informed by the CBSE, would they then require to apply for and obtain the certificate as per Appendix - III of the “Affiliation Bye-Laws”, from the Educational Authority".
Case Title: Harris T.K. v. Greater Cochin Development Authority & Anr.
Citation: 2023 LiveLaw (Ker) 136
The Kerala High Court recently held that a rank trespasser has no recognition under law as far as illegal occupation of a public premise is concerned, and that the Court cannot accord such person with some sort of protection regarding the illegal use of the premise.
The Court in this case was dealing with a rank trespasser who was an occupant of a room in Greater Cochin Development Authority (GCDA), and had trespassed into the common area. He had no case that the said area had been let out to him or even that he had been permitted to use it. However, he claimed that he could not be removed except under the procedure established by law, as contemplated by the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter, 'Act, 1971').
Elucidating that the Act,1971 is an enactment for eviction of unauthorized occupants of public premises, the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen went on to observe that the same postulates that the occupant but for termination, is deemed to have a relationship of that between the public authority and the occupant.
"For example, if he is an occupant of a room in GCDA by way of lease or licence, if his jural relationship comes to an end by invoking the provisions of the contract or the provisions of law, he can only be evicted by invoking the Public Premises (Eviction of Unauthorised Occupants) Act, 1971," the Bench explained in the appeal before it.
Case Title: Nithin V State of Kerala
Citation: 2023 LiveLaw (Ker) 137
The Kerala High Court recently held that any police officer being a gazetted officer would be competent to conduct a search under Section 50 (conditions under which search of persons shall be conducted) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The only exception to this would be a police officer part of the detecting or investigating team, as such an officer could not be considered an independent officer for the purposes of the search.
The court also clarified that ensuring the presence of the gazetted officer at the place of search, instead of taking the accused to the gazetted officer would not be considered non-compliance of Section 50 of the NDPS Act.
A single bench of Justice A Badharudeen was considering the bail application of a man who was arrested for possession of 0.9 grams of MDMA intended for sale which is punishable under the NDPS Act.
Case Title: Vinu Madhavan V State Bank Of India
Citation: 2023 LiveLaw (Ker) 138
The Kerala High Court on Friday held that a bank could not retain the security documents related to a mortgaged property if the loan amount has been paid in full by the borrower, merely because during term of the mortgage, it was alienated to a third party by the borrower.
A single bench of Justice Shaji P Chaly held that : “merely because the property was transferred by the petitioner during the subsistence of the mortgage, however the interest of the Bank is protected by closing the loan account, the Bank is not entitled to withhold the security documents on the ground that the petitioner has transferred the property during the subsistence of the mortgage.”
Case Title: Dayal v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 139
Observing that investigating officers and public prosecutors in many cases are showing laxity in properly framing and submitting petitions under Section 36A (4) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the Kerala High Court has asked the Director General of Prosecution and Director General of Police to take appropriate action for imparting requisite training and refresher courses to the officers.
"The necessity of clearly setting out the twin requirements for seeking extension of detention of accused beyond 180 days cannot be overlooked or dealt with in a casual manner under any circumstance. This is an aspect that should engage the attention of the Director General of Prosecution and the Director General of Police," Justice V. G. Arun said.
Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors.
Citation: 2023 LiveLaw (Ker) 140
The Kerala High Court recently considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'.
Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed,
"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children".
Kerala High Court Quashes Governor's Order Suspending KTU Syndicate Resolutions
Case Title: I.B. Satheesh M.L.A. v. The Chancellor, APJ Abdul Kalam Technological University & Ors.
Citation: 2023 LiveLaw (Ker) 141
The Kerala High Court on Friday quashed the order of the Chancellor of the APJ Abdul Kalam Technological University, Arif Mohammed Khan, who is also the Governor of the State, suspending the resolutions issued by the Syndicate and Board of Governors of the University.
Justice Sathish Ninan passed the above order noting that the proviso to Section 10(3) of the APJ Abdul Kalam Technological University Act, 2015 (hereinafter, 'Act, 2015') contemplates the opportunity to show cause before the issuance of any such order suspending or modifying any resolution of any authority.
"When the power is traced under a statutory provision, compliance in terms thereof is the mandate. Where the law prescribes a thing to be done in a particular manner and following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure," the Court observed.
Kerala High Court Grants Parole To 'Ripper Jayanandan' For Attending Daughter's Wedding
Case Title: Indira v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 142
The Kerala High Court on Friday granted parole for a period of fifteen days to 'Ripper Jayanandan', an infamous killer accused of seven murders committed during thirty-five robberies, for partaking in the wedding of his daughter. In the petition filed by the wife of the convict, their daughter, Advocate Keerthi Jayanandan had appeared as the counsel.
Justice Bechu Kurian Thomas, while allowing the petition, observed,
"... this Court cannot be oblivious to the glorious right to liberty enshrined in Article 21 of the Constitution of India. The liberty of every individual and the right to life guaranteed under the aforesaid constitutional provision has been interpreted to include the right to live with human dignity. Though a convict, petitioner’s husband also enjoys the facets of right to life and liberty within the limits of law. Normally the opportunity to participate in the wedding of a daughter has to be treated as part of that liberty. When the statute permits the grant of emergency parole, there is no reason why such a facet of his liberty ought to be denied to him despite him being a convict".
Case Title: Nithin Ramakrishnan V Union Of India
Citation: 2023 LiveLaw (Ker) 143
The Kerala High Court on Friday asked the Centre to consider allowing vehicles to pass through toll booths without paying toll during busy hours of traffic when the queue of vehicles is long.
A division bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen asked the Union Government to consider giving retrospective effect to the Policy Circular dated 24.5.2021 of the NHAI Policy Guidelines/ Management of Plaza, 2021 which provides for lifting of the boom barrier to allow free flow of traffic anytime the queue of vehicles in any lanes becomes longer than 100 meters. This free flow of traffic without collecting toll amount will be allowed till the queue comes within 100 meters, according to the circular.
Other Significant Developments
Case Title: Suo Motu v. State of Kerala & Ors.
The Kerala High Court on Monday directed the Secretary of the Cochin Municipal Corporation to place before the Court the details regarding the passing over of the management of the Brahmapuram solid waste management plant facility to a third party.
The Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji issued the said direction on being informed by the Secretary of the Cochin Municipal Corporation, Babu Abdul Khader that a contract had been entered into with a third party for the free handover of responsibility of the Brahmapuram waste plant. The Court thus sought details regarding the chronology of events leading to the third party agency taking over the management of the facility, as well as the manner and mode by which decisions regarding the facility are taken.
In View Of Brahmapuram Fire, Kerala High Court Vacates Stay On NGT Directions To Cochin Corporation
Case title: Corporation Of Cochin V Jith Kumar and Others
In view of the fire which erupted in the Brahmpauram waste dumping yard, the Kerala High Court on Monday vacated the stay it had granted in 2018 on the directions passed by the National Green Tribunal to the Cochin Corporation. In October 2018, the NGT had imposed a fine of Rs. 1 Crore on the Cochin Corporation for its delay in setting up a solid waste treatment plant at Brahmapuram in accordance with the Solid Waste Management Rules, 2016.
The Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji passed the order vacating the stay, after taking note of the report submitted by the High Level Committee constituted by the Court, which indicated several several deficiencies and shortfalls in implementing the Solid Waste Management Rules, 2016. "There is consensus that the site cannot be measured as a facility from any perspective under the Solid Waste Management Rules 2016 (for short, Rules 2016). The basic requirements for handling solid waste upon site delivery are unavailable", the Court noted while opining that the Corporation is not entitled to have the benefit of the stay.
Brahmapuram Site Fire Doused Completely, Kerala High Court Told; Court Appreciates Frontline Workers
Case Title: Suo Motu V State of Kerala
The Kerala High Court on Tuesday recorded the submission of the District Collector, NSK Umesh and Secretary of the Cochin Municipal Corporation, Babu Abdul Khader, that 100% of the fire that broke out at the Brahmapuram waste dumping site had been contained and that there was no smouldering visible to the naked eye. The court appreciated the efforts of the frontline workers who worked day and night to douse the fire.
The Division Bench comprising of Justice S.V. Bhatti and Justice Basant Balaji placed on record its appreciation for the commendable work executed by the fire service personnel:
“This Court and the citizens of Cochin place on record their appreciation for discharging a herculean task of putting out the fire at the site at this time of the year by the Personnel of the Fire Department. We are conscious that either the failure to control the fire or allowing the fire to spread to the neighbourhood would have led to unimaginable consequences. We record our recognition, satisfaction, and appreciation to the Personnel of the Fire Department for all their efforts. We also record the same appreciation for the contribution of the Civil Defence Volunteers in putting out the fire.”
Case Title: Suo Motu V State of Kerala
The Kerala High Court on Tuesday (March 14) came down heavily on the Cochin Municipal Corporation on the lapses in the contract entered into by it with the private party that was given the responsibility to manage the solid waste at the Brahmapuram site.
The Division Bench comprising Justice S.V. Bhatti and Justice Basant Balaji told M Babu Abdul Kadher, the Secretary of the Cochin Municipal Corporation that when an agreement is entered into with a private partner, there must specific clauses on fixation of civil and criminal liability.
Case Title: Saheer S. v. Union of India & Ors.
A plea has been filed in the Kerala High Court challenging the requirement of submission of proof of having opted for paying higher Provident Fund contribution under paragraph 26(6) of the Employees Provident Fund Scheme, towards the higher PF pension.
Justice Ziyad Rahman A.A., on Wednesday, admitted the plea, and granted time to the EPFO to submit counter affidavit in the matter.
Case Title: The Bar Council Of Kerala Vs Akshai M. Sivan and Connected Cases
The Bar Council of Kerala on Thursday informed the High Court that the matter of revising the enrollment fee was being considered by it and that the Bar Council of India had convened a meeting of all state bar councils, on the direction of the Supreme Court, for fixing a uniform fee for enrollment across India.
A division bench comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen was hearing the appeal filed by the Bar Council of Kerala (BCK) against the interim order of a single judge which directed the BCK to not collect more than Rs 750 as enrollment fees from prospective advocates who had petitioned the Court.
Case Title: Anoop V State of Kerala
The committee of experts constituted by the CBSE on the direction of the Kerala High Court to create and implement a prevention-oriented programme on sexual abuse in schools submitted its report on ways to put mechanisms in place for the same.
A single bench of Justice Bechu Kurian Thomas on Wednesday took the report of the Committee of Experts of CBSE on record.
Kerala’s oldest institution of legal education which is about to celebrate 150 years of its inception, is paving the path for effectively incorporating technology into the education system. The Government Law College, Ernakulam will be inaugurating a dedicated facility for live streaming of Supreme Court and Kerala High Court proceedings at its campus on Saturday, 18th March, 2023. The venue will be inaugurated by Justice Shaji P Chaly of the Kerala High Court. The Ernakulam Law College, is the first legal education institute in the country to introduce an initiative of this kind.
Case Title: State v. Madhu @ Balan
The Fast Track Special Court (POCSO) at Thiruvananthapuram on Thursday, sentenced a 48-year-old man to undergo rigorous imprisonment for a period of 40 years, and imposed a fine of Rs. 60,000/- on him for sexually assaulting a 11 year old boy in the year 2020.
"Sexual abuse or sexual harassment is never contained to a present moment. It lingers across a person’s lifetime and has pervasive long-term ramifications. From the facts and circumstances of this case, it is found that it is not a fit case to invoke the provisions of the Probation of Offenders Act, 1958. The object of imposing sentence to an accused is also to be seen as a deterrence to the society. It should also send a message across the society that there is no disgrace in being a survivor of sexual violence and the shame is always on the aggressor. Sentencing the accused in this case is based on the evidence adduced and the gravity of the offence committed by him on a boy from his neighbourhood whose family was known to him along with the factors concerning him," the Special Judge Aaj Sudarsan observed.
