Kerala High Court Weekly Round-Up: April 29- May 05, 2024

Judgment/Orders This Week

'Belated, Inconsistent Pleas': Kerala High Court Dismisses Review Petition Claiming Possession Over Govt Held Land After 70 Yrs

Case Title: Kallodi St. George Forane Church V K Mohandas

Citation: 2024 LiveLaw Ker 272

The Kerala High Court dismissed a review petition stating that a litigant cannot take inconsistent pleas before the Court without being vigilant of his rights.

Dismissing the review petition, Justice P.V.Kunhikrishnan held that the Court cannot accept belated contention based on the maxim “Vigilantibus non dormientibus jura subveniunt”.

“Now, after about 70 years, the review petitioner is taking a stand that they have got title to the property. Such a belated contention cannot be accepted by this Court. The review petitioner is taking a stand from 1952 onwards that the property in dispute is in their possession, but the ownership is with the Government. After about 70 years, when this Court passed the impugned judgment in this review petition, the review petitioner is taking a stand that the review petitioner has got title to to the property. This is nothing but an inconsistent plea by the review petitioner.”

NHAI Arbitration| Landowner Can Seek Appointment Of An Expert Commissioner To Determine True Value Of Property: Kerala High Court

Case Title: M/s Punarnava Ayurveda Hospital Pvt Ltd v. The Arbitrator for NH-66, WP(C) No. 6947 of 2024

Citation: 2024 LiveLaw Ker 273

The High Court of Kerala has held that a landowner dissatisfied with property categorization by Competent Authority for Land Acquisition (CALA) can request an Expert Commissioner's appointment to ascertain the property's actual value.

The bench of Justice Viju Abraham held that an arbitrator cannot dismiss a landowner's application under Section 26 for an expert commissioner's appointment without considering their arguments, solely relying on the CALA report.

[Coastal Zone Regulations] Kerala High Court Directs Authority To Only Consider Request For Construction Of Buildings After Approval Of 2023 Cadastral Map

Case Title: Ajay Peter v Kerala Coastal Zone Management Authority & Connected Cases

Citation: 2024 LiveLaw Ker 274

The Kerala High Court directed the Kerala Coastal Zone Management Authority or other competent authorities to consider or reconsider the sanction request for the construction of buildings only after approval of the 2023 Cadastral Map by reducing the distance of 200 metres in CRZ- III to 50 metres.

“As an upshot of my findings, I allow all other writ petitions, quash the impugned notices, in all matters/writs, issued by gram panchayats or KCZMA, even if they are issued by the committee or not, with further direction that the Kerala Coastal Zone Management Authority or other competent authorities would consider/reconsider request for sanction or take action only when the Cadastral Map of 2023 is approved by the Government whereby the distance of 200 metres in CRZ- III has been reduced to 50 metres and then examine each and every case, pending or future applications, depending upon the location, situation and the extent of construction, permitted or prohibited”, stated Justice Amit Rawal

Sanction To Prosecute Public Servant Issued After Reconsideration Of Evidence Can't Be Rejected Merely Due To Refusal Of Previous Sanction: Kerala HC

Case Title: BS Jayakumar v. State of Kerala, Mansoor J v. State of Kerala, A. Abdul Rasheed @ Dr. AR Babu v. State of Kerala and Sreelatha v. State of Kerala

Citation Number: 2024 LiveLaw Ker 275

The Kerala High Court has stated that a sanction to prosecute public servants issued after reconsideration of the evidence submitted cannot be rejected on the grounds that the previous sanction was refused by the competent authority.

“In the present case, the competent authority in the Government refused sanction to prosecute the public servant including accused No.2 which compelled the investigating agency to submit a refer report before the Trial Court. The Court returned the refer report with a direction to place the entire materials before the sanctioning authority to reconsider the same. The competent authority in the Government reconsidered the materials and found that the public servants had to be prosecuted and and accordingly sanction was granted to prosecute them” observed Justice K Babu.

[Arbitration Act] Executing Court Cannot Review Or Add Payment Of Interest While Enforcing Foreign Award: Kerala High Court

Case Title: M/S International Nut Alliance LLC v M/S Johns Cashew Co.

Citation: 2024 LiveLaw Ker 276

The Kerala High Court was considering whether an executing court while enforcing an International arbitral award could direct payment of interest on the amount awarded from the date of the award till the date of payment, even when the award itself does not contemplate payment of any interest.

Justice T R Ravi held that the executing court cannot add or review the foreign award for providing payment of interest when the arbitral award itself does not mention anything about post-award interest.

Provision For Refund U/S 6 Of Kerala Motor Vehicles Act Only Applicable If Tax Paid In Advance, Vehicle Not Used: High Court

Case Title: Muhammed Safeer P v. Regional Transport Officer and ors.

Case Citation: 2024 LiveLaw Ker 277

The Kerala High Court has clarified that the provision for refund under Section 6 of the Kerala Motor Vehicle Taxation Act, 1976 will only apply if the motor vehicle tax has been paid in advance for a vehicle.

“A reading of Section 6 of the 1976 Act indicates beyond doubt that the provision for refund will apply only when the motor vehicle tax has been paid in advance for the period specified and the vehicle is not intended to be used during the whole of that period or a continuous part thereof not being less than one month” observed a Single Judge bench of Justice Gopinath P.

Extending Benefits Of Better Terms Of Gratuity To Be Decided By Employer, Employee Cannot Claim It As Right: Kerala High Court

Case Title: The KMML Retired Officers Association v The State of Kerala

Citation: 2024 LiveLaw Ker 278

The Kerala High Court has held that extending benefits of better terms of gratuity has to be decided by the employer based on various factors and the employees cannot claim better terms of gratuity as a matter of right.

The Court was considering whether retired employees of Kerala Minerals and Metals Ltd were entitled to get the benefit of the amendment dated 24.5.2010 to Section 4(3) of the Payment of Gratuity Act, increasing the ceiling limit from Rs.3.5 lakhs to Rs.10 lakhs.

Justice M A Abdul Hakhim stated granting enhanced gratuity benefits was within the employer's discretion. It stated that the employer can decide whether to extend the better terms of gratuity to employees or not.

Prisoner Exempted From Appearing At Registration Office, Registrar Bound To Examine Him By Visiting Jail Or Issuing Commission: Kerala HC

Case Title: Sulochana v State of Kerala

Citation: 2024 LiveLaw Ker 279

The Kerala High Court held that a person in jail is exempted from appearing in person at the registration office for registration of any document as per Section 38 of the Registration Act, 1908.

Justice Viju Abraham observed that the District Registrar is duty-bound to visit the jail where the convict is confined and examine him or issue a commission for his examination to complete the registration process.

Investigating Officer Not Obliged To Exclusively Act On Expert's Opinion While Investigating Medical Negligence Cases: Kerala High Court

Case Title: K Haridas v State of Kerala & Connected Matter

Citation: 2024 LiveLaw Ker 280

The Kerala High Court held that the investigating officer is not obliged to act exclusively based on the opinion of the 'District Level Expert Panel' and 'State Level Apex Body' for criminal investigation. Justice Devan Ramachandran observed that the investigating office could take additional expert opinion from any other source if he wishes to do so to complete the investigation.

“ The Doctors cannot have any objection against the processes now put in place by the Government of Kerala through their various orders…..even going by the said order, it does not make it obliged on the Investigating Officer to act exclusively as per the views of the 'Expert Panel/Apex Body', but, on the contrary, enjoins him to continue the investigation using other expert opinion, if required, thus culminating it as per law, before the competent Court. It is eventually the Court which takes the final call either way because, even if the Investigating Officer is to refer the complaint against a Doctor, the the complainant would nevertheless obtain the right to file a 'private complaint' or 'protest complaint', as the case may be; thus leading the processes forward, which would then be completed without any reference to the opinion of the 'Expert Panel' or the 'Apex Body'”, ordered the Court.

Employer who got Sufficient Opportunity To Defend Claim Before Assistant Labour Officer Cannot Approach High Court Claiming Prejudice: Kerala High Court

Case Name: Sujatha Devi vs The Assistant Labour Officer Paravoor

Citation: 2024 LiveLaw Ker 281

The Kerala High Court single bench of Justice Murali Purushothaman held that the employer was provided sufficient opportunity to defend the claim before the authority ccannot approach the High Court alleging that she was not given sufficient opportunity to defend the claim.

The High Court underscored the welfare objectives of the Minimum Wages Act which aimed at ensuring fair remuneration for various employments. Section 20 of the Act outlines the adjudication process for claims, under which the respondent Inspector had filed the claim. The High Court held that the Petitioner was provided ample opportunity to contest the claim before the Authority but failed to avail herself of such opportunities. Consequently, the High Court dismissed the petition.

Other Significant Developments This Week

[Veterinary Student Death] Accused Students Being Probed By CBI Move Kerala High Court Seeking Bail

Case Title: Akash S D v State of Kerala & Connected Cases

Case Number: Bail Appl. 2306/2024 & Connected Cases

College students implicated as accused in the suicide of Sidharthan J S, a veterinary student, have approached the Kerala High Court seeking bail.

A crime was registered against eighteen persons under Sections 341, 323, 324, 342, and 306 read with Section 34 of the IPC and Sections 3 and 4 of Kerala Prohibition of Ragging Act, 1998.

Justice P G Ajithkumar posted the matter for hearing on May 07, 2024.

Prima Facie For Public Safety: Kerala High Court Declines To Stay Circular By Motor Vehicles Dept Imposing Stricter Conditions For Driving Tests

Case Title: All Kerala Motor Driving School, Instructors and Workers Association V The Transport Commissioner & Connected Cases

Case Number: WP(C) 10615/ 2024 & Connected Cases

The Kerala High Court today declined to pass an interim order staying the implementation of the circular dated February 25, 2024 issued by the Transport Commissioner. The circular was issued by the Motor Vehicles Department prescribing additional conditions regarding the usage of vehicles for driving tests.

Justice Kauser Edappagath declined to grant an interim order staying the implementation of the circular and held that prima facie the circular intends to streamline procedure of driving test and is in harmony with the Motor Vehicle Act and Rules. The Court also held that the Transport Commissioner being the head of the Motor Vehicles Department is competent to issue instructions which are not in violation to the Motor Vehicles Act and Rules.