Kerala High Court Weekly Roundup: February 28 To March 6, 2022

Citations 2022 LiveLaw (Ker) 103- 2022 LiveLaw (Ker) 113

Nominal Index

State of Kerala & Nowfal, 2022 LiveLaw (Ker) 103

Madhyamam Broadcasting Limited v. Union of India, 2022 LiveLaw (Ker) 104

C.G. Thampi v. Jyothis & Ors, 2022 LiveLaw (Ker) 105

Shiny Shukoor v. Union of India & Ors, 2022 LiveLaw (Ker) 106

Dr Vijil & Ors v. Ambujakshi T.P & Anr, 2022 LiveLaw (Ker) 107

M/s Devchand Construction v. Union of India, 2022 LiveLaw (Ker) 108

Pradeep Kumar P v. State of Kerala & Ors, 2022 LiveLaw (Ker) 109

Suo motu case, 2022 LiveLaw (Ker) 110

xxx v. State, 2022 LiveLaw (Ker) 111

Kousalya & Anr v. Leena & Ors, 2022 LiveLaw (Ker) 112

Atlas Jewellery [P] Ltd Versus Deputy Commissioner, 2022 LiveLaw (Ker) 113

1. SC/ST Act | Victim's Request To Record Trial Proceedings Can't Be Dismissed Even If Sexual Offences Are Involved: Kerala High Court

Case Title: State of Kerala & Nowfal

Citation: 2022 LiveLaw (Ker) 103

The Court has ruled that when a victim of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act makes a request to video record the trial proceedings, a court cannot turn it down even if sexual offences are involved. Justice Kauser Edappagath noted that Section 15A(10) of the Act which permits video-recording of all proceedings is in consonance with Section 327(2) of CrPC which provides for in-camera trial in cases involving sexual offences since both of them were enacted to protect the interests of the victim.

2. Kerala High Court Upholds Telecast Ban On MediaOne Channel, Dismisses Appeal Against Single Bench Judgment

Case Title: Madhyamam Broadcasting Limited v. Union of India

Citation: 2022 LiveLaw (Ker) 104

The Court dismissed the appeal moved by Malayalam news channel MediaOne against the single judge order upholding the recent ban imposed on it by the Ministry of Information and Broadcasting on national security grounds. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly upheld the order passed by the Union Ministry of Information and Broadcasting refusing to renew the broadcast license granted to MediaOne.

Also Read: 'Clear, Significant Indications Impacting Public Order & Security' : Kerala High Court While Upholding Telecast Ban On MediaOne

3. Specific Remedy Under CPC Often A Total Bar To Claim Remedy Under Article 227 Of Constitution: Kerala High Court

Case Title: C.G. Thampi v. Jyothis & Ors.

Citation: 2022 LiveLaw (Ker) 105

The Court recently held that it cannot entertain a revision petition under Article 227 of the Constitution when a specific remedy of appeal is available under the Code of Civil Procedure (CPC). As such, Justice A. Badharudeen dismissed a petition and directed the petitioner to approach the appropriate appellate court as per law. Therefore, the High Court ought not to have entertained the Revision under Article 227 of the Constitution of India, in a case where a specific remedy of appeal is provided under the code of Civil Procedure.

4. Can't Object To Issue Passports To Children Of Single Parents For Lack Of Court Order: Kerala HC Asks Officer To Pay ₹25K As Litigation Expense

Case Title: Shiny Shukoor v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 106

The Court recently asked an Assistant Passport Officer in Kottayam to shell out litigation expenses amounting to Rs. 25,000 from his own salary for objecting to re-issue passport to a single parent's daughter. In his order, Justice Amit Rawal has also called it a classic case of highhandedness by the Assistant Passport Officer objecting to re-issue the passport of children of a single parent facing a matrimonial discord and directing them to approach the court and obtain the court order.

5. 'Medical Services' Fall Within Ambit Of Consumer Protection Act, 2019: Kerala High Court

Case Title: Dr Vijil & Ors v. Ambujakshi T.P & Anr.

Citation: 2022 LiveLaw (Ker) 107

In a significant decision, the Court has ruled that medical services fall within the purview of the term 'service' defined under Section 2(42) of the Consumer Protection Act, 2019. Observing so, Justice N. Nagaresh dismissed a plea filed by a group of doctors who prayed to declare that the consumer fora under the Consumer Protection Act, 2019 do not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service.

6. Breach Of Contract | Can't Forfeit Security Deposit Towards Risk Liability In Absence Of Loss/Damage: Kerala High Court

Case Title: M/s Devchand Construction v. Union of India

Citation: 2022 LiveLaw (Ker) 108

The Court has recently ruled that in the case of a breach of contract, one party cannot forfeit the security deposit towards risk liability when they have not suffered any loss or damage. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha observed that it was settled that when the question is one of forfeiture of the security deposit in case of breach of contract, such sum does not ipso facto go to the respondents.

7. State Can Notify All Corporations, Municipalities & Panchayats U/S 58(f) Of Transfer Of Property Act: Kerala High Court

Case Title: Pradeep Kumar P v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 109

The Court has recently held that the State Government is justified in notifying all Corporations, Municipalities and Panchayats in the State of Kerala under Section 58(f) of the Transfer of Property Act. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly thereby refused to interfere with a State notification in that regard and accordingly dismissed an appeal.

8. Kerala High Court Notifies Directions For Road Safety Amid Rising Accidents Involving Sabarimala Pilgrims

Citation: 2022 LiveLaw (Ker) 110

In a judgment that runs beyond 120 pages, the Court has issued a set of directions to ensure road safety and adherence with the provisions of the Motor Vehicles Act in the wake of the rising number of accidents reported concerning Sabarimala pilgrims travelling in buses and other contract carriages. A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar discovered that despite several guidelines in place, vehicles were being permitted to run on public roads disregarding road safety standards, thereby posing a potential threat to the safety of passengers and other road users.

9. Kerala High Court Drops Proceedings Against Two Nuns Accused Of Sharing Rape Survivor's Photo With Media

Citation: 2022 LiveLaw (Ker) 111

The Court quashed the proceedings against two nuns for allegedly disclosing the identity of a rape survivor by sharing her photo with the media. The nuns had shared a photograph of the rape survivor along with a few priests via email to three media personnel, however, the name or identity of the survivor was not published in the reports. Moreover, the email contained specific instructions to the recipients to not publish the photograph.

10. Proof Of Will : Onus Is On The Propounder To Remove Suspicious Circumstances : Kerala High Court

Case Title: Kousalya & Anr v. Leena & Ors.

Citation: 2022 LiveLaw (Ker) 112

The Court has recently ruled that if there exist suspicious circumstances surrounding the execution of the will, it is the onus of the propounder to remove all those reasonable doubts in the matter and the test to be applied in this connection is satisfaction of judicial conscience.Justices P.B. Suresh Kumar and C.S Sudha observed that suspicion cannot be removed by the mere assertion of the propounder that the will bears the testator's signature or that the testator was in a sound state of mind at the time when the will was made or that the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.

11. No Opportunity Of Hearing Given To Managing Director Imprisoned In UAE: Kerala High Court Quashes Income Tax Assessment Orders

Case Title: Atlas Jewellery [P] Ltd Versus Deputy Commissioner

Citation: 2022 LiveLaw (Ker) 113

The Court has quashed the income tax assessment order on the grounds that no opportunity of hearing was given to the Managing Director who was imprisoned in UAE. Justice Bechu Kurian Thomas has ruled that the principle of natural justice has twin ingredients, firstly opportunity to show cause and of being heard should be given, it must be a real opportunity and not an unreal one, the right to a fair hearing is essential and secondly, the orders passed by the authorities should give reasons for arriving at any conclusion showing a proper application of mind.

Other Developments

12. Russia-Ukraine Conflict | Plea In Kerala High Court Alleges Discrimination Against Stranded Indian Students, Seeks Steps For Repatriation

Case Title: Kerala High Court Advocate's Association & Ors. v. Union of India & Ors.

The Kerala High Court Advocate's Association (KHCAA) has moved the High Court seeking the repatriation of students from Kerala stuck in Ukraine amid the ongoing Russia-Ukraine conflict. Justice N. Nagaresh permitted the petitioners to pass on whatever information they have regarding the students to the Assistant Solicitor General to do whatever possible to facilitate their expeditious repatriation. The Court has ordered that the matter be listed as the first item on Wednesday for further consideration.

13. Right To Be Forgotten : Kerala High Court Formulating Information Management Policy To Mask Personal Information In Judgments

Case Title: xxx v. Union of India and connected matters.

The Court declared that it was in the process of drafting an Information Management Policy which could possibly address the issue of masking of the parties' names in its orders and judgments. A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas announced so while adjudicating upon a batch of seven petitions seeking the remedy of masking their names in different cases dispised of by this court. The matter has been listed on April 1 for further consideration.

14. 'Costs Over 80 Crores A Year' : Plea Before Kerala High Court Challenges Pensions Granted To Ministers' Personal Staff In State

Case Title: Dinesh Menon v. State of Kerala & Ors.

A Public Interest Litigation (PIL) has reached the Court challenging the manner of appointment of personal staff to ministers in the State and the consequent pension benefits provided to them despite having served only a couple of years in office. Significantly, the plea estimated that the State is currently spending at least Rs. 80 crore per annum for paying pension.

15. 2019 Postal Ballot Fraud | Kerala High Court Asks Police Chief To Explain 2 Years' Delay In Concluding Investigation

Case Title: Ramesh Chennithala v. Election Commission Of India & Ors.

The Court came down heavily on the special police team constituted to investigate the alleged postal ballot fraud in 2019, for its inordinate delay in winding up the probe. Noting that the team had undertaken to conclude the inquiry within two months from September 2019, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly directed the State Police Chief to explain the reason behind more than two years of delay in completing the investigation.

16. 'Is This The Rule Of Law We Boast Of?' : Kerala High Court Voices Distress Over Unauthorised Boards, Banners & Flagposts

Case Title: St. Stephen's Malankara Catholic Church v. State of Kerala & Ors.

The Court came down heavily on the Municipalities and Corporations for their enduring inaction over the unauthorised installations such as banners, boards and flag posts around the State. Justice Devan Ramachandran expressed his distress over unauthorised installations being put up in blatant violation of law disregarding all orders of the court and the Kerala Road Safety Commissioner on this issue. "When someone criticised our state recently, you claimed that Kerala upholds rule of law. Is this the rule of law that we boast of?" the court remarked.