Nominal Index {Citations 2024 LiveLaw (Ker) 397 – 417]Sali T. v Keezhmadu Service Co-operative Bank, 2024 LiveLaw (Ker) 397Arshad v State of Kerala, 2024 LiveLaw (Ker) 398Association of Clinical Microbiologists and Biochemists v Akhil James and Others, 2024 LiveLaw (Ker) 399Satish Motilal Bidri v Union Of India, 2024 LiveLaw (Ker) 400N S Gopakumar v The Oriental Insurance Company Ltd.,...
Nominal Index {Citations 2024 LiveLaw (Ker) 397 – 417]
Sali T. v Keezhmadu Service Co-operative Bank, 2024 LiveLaw (Ker) 397
Arshad v State of Kerala, 2024 LiveLaw (Ker) 398
Association of Clinical Microbiologists and Biochemists v Akhil James and Others, 2024 LiveLaw (Ker) 399
Satish Motilal Bidri v Union Of India, 2024 LiveLaw (Ker) 400
N S Gopakumar v The Oriental Insurance Company Ltd., 2024 LiveLaw (Ker) 401
O. Abdul Rahiman v State Of Kerala & Ors., 2024 LiveLaw (Ker) 402
Mohammed Mammunhi v State of Kerala and Others, 2024 LiveLaw (Ker) 403
Mansoor Ali v State of Kerala, 2024 LiveLaw (Ker) 404
Adithya Kiron v The Station House Officer and Others, 2024 LiveLaw (Ker) 405
P. R. Ramachandran V The State Chief Information Commissioner, 2024 LiveLaw (Ker) 406
Jomi v State of Kerala, 2024 LiveLaw (Ker) 407
C Kappan v State of Kerala & Other, 2024 LiveLaw (Ker) 408
Dr. Pramod John v State of Kerala, 2024 LiveLaw (Ker) 409
Thomas Baby v Jojo V. Varghese and Others, 2024 LiveLaw (Ker) 410
State of Kerala V Gireesh Kumar & Connected Matter, 2024 LiveLaw (Ker) 411
Eldho Varghese v Liya Jose, 2024 LiveLaw (Ker) 412
Jeffin Kuriakose v State of Kerala, 2024 LiveLaw (Ker) 413
PVR Tourist Home Versus CIT, 2024 LiveLaw (Ker) 414
The Meenachil Taluk Cooperative Employees Cooperative Society Limited Versus Commissioner Of Income Tax (Appeals), 2024 LiveLaw (Ker) 415
Raju Sreedharan Versus The Superintendent, Central Tax & Central Excise, 2024 LiveLaw (Ker) 416
Sandeep G V State of Kerala, 2024 LiveLaw (Ker) 417
Judgments/ Orders this Week
Case Title: Sali T. v Keezhmadu Service Co-operative Bank
Citation: 2024 LiveLaw (Ker) 397
The Kerala High Court held that that non – non-impleadment of legal representatives after the death of the judgment-debtor does not abate the execution proceedings with respect to an arbitral award. The requirement in Code of Civil Procedure requiring the legal representative to be impleaded within the limitation period will not apply for execution of arbitration proceedings under Kerala Co-operative Societies Act.
Case Title: Arshad v State of Kerala
Citation: 2024 LiveLaw (Ker) 398
The Kerala High Court has held that the term 'transport' in Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereafter, Sand Act) cannot be interpreted to mean that the vehicle must be in motion.
Justice Bechu Kurian Thomas stated that the term 'transports sand' would mean the removal of sand from the river bed to the lorry and from the lorry to any other place. The Court stated that even when a vehicle was loaded with river sand, it would constitute sand transport, regardless of whether the vehicle was in motion or not.
Case Name: Association of Clinical Microbiologists and Biochemists v Akhil James and Others
Citation: 2024 LiveLaw (Ker) 399
The Kerala High Court has dismissed an appeal filed by Association of Clinical Microbiologists and Biochemists against the removal of B.Sc. Medical Biochemistry and B.Sc. Medical Microbiology courses from the prospectus of professional degree courses and paramedical courses for the year 2018-19, saying that it is a policy decision of the Government.
The Court however added that there are some cases where the policy decisions can be subjected to judicial review but that can be done only on well-defined grounds. In this case, there is no such grounds. No legal right or fundamental right of the petitioners are violated, it held.
Case Title: Satish Motilal Bidri v Union Of India
Citation: 2024 LiveLaw (Ker) 400
The Kerala High Court has held that properties subject to attachment under the PMLA must be properties acquired through proceeds of crime. It stated that provisions of PMLA cannot be unfairly and unreasonably used to attach properties that are unrelated to any criminal activity.
Case Title: N S Gopakumar v The Oriental Insurance Company Ltd.
Citation: 2024 LiveLaw (Ker) 401
The Kerala High Court held that an Insurance Ombudsman was empowered to pass an Award granting compensation to the complainant but not empowered to issue directions to the Insurer as per Rule 17 of the Insurance Ombudsman Rules, 2017.
Case Title: O. Abdul Rahiman v State Of Kerala & Ors
Citation: 2024 LiveLaw (Ker) 402
The Kerala High Court has quashed proceedings initiated against the editor and publisher of Madhyamam newspaper under Section 499 of the IPC on finding that the alleged news item was published without intention or knowledge to harm the reputation of the complainant.
Case Title: Mohammed Mammunhi v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 403
The Kerala High Court has held that the Kerala Land Assignment Rules (KLA Rules) lay down that patta will be issued by the Tehsildar only if LA dues are paid by the assignee. The Court thus held the cancellation of patta on the ground that the assignee did not pay LA dues as invalid. However, it refused to pass any orders in favour of the Appellant since he had not sought a relief for recovery of possession. As per proviso of Section 34 of the Specific Relief Act, the court shall not make a declaration of title when the plaintiff being able to seek a further relief does not do that.
Case Title: Mansoor Ali v State of Kerala
Citation: 2024 LiveLaw (Ker) 404
The Kerala High Court has held that each and every breach of contract would not amount to breach of trust unless it is shown that there was an intent to cheat and defraud from the very inception.
Case Title: Adithya Kiron v The Station House Officer and Others
Citation: 2024 LiveLaw (Ker) 405
The Kerala High Court has come to the rescue of Elida Rubielle, a transwoman who was allegedly forced to undergo conversion therapy. It noted that the 19-year-old had made a firm decision to live separately from her parents and said the choice and desire expressed by her needs to be respected.
The Habeas corpus petition was filed by her friend alleging that she was forced to undergo conversion therapy. She had come out as a transwoman. It was submitted that she was forced to undergo conversion therapy at Amrita Hospital to change her gender identity.
Case Title: P. R. Ramachandran V The State Chief Information Commissioner
Citation: 2024 LiveLaw (Ker) 406
The Kerala High Court has held that the Registrar of Co-operative Societies is a public authority under the Right To Information Act. It stated that Registrar, being a public authority could gather and disclose information obtained from the Co-operative Society under his administrative or supervisory control to the extent permitted by law.
Case Title: Jomi v State of Kerala
Citation: 2024 LiveLaw (Ker) 407
The Kerala High Court has held that teachers cannot be prosecuted under the Juvenile Justice (Care and Protection of Children) Act, 2015 for using simple corrective measures for enforcing discipline in schools.
The Court further relied upon Rajan @ Raju, S/o Choyi v. The Sub Inspector of Police, Feroke Police Station and others (2019) wherein it was stated that nature of injury inflicted by teacher upon the student would determine as to whether he can be proceeded under penal provisions or not. The Court stated that acts of teacher cannot be condoned if they inflict injury on a child out unbridled fury, excitement or rage, inflicts injuries causing unreasonable physical injury or harm.
Case Title: Mani C Kappan v State of Kerala & Other
Citation: 2024 LiveLaw (Ker) 408
The Kerala High Court has dismissed the criminal revision petition filed by MLA Mani C Kappan against the order of a Special Judge framing charges against him for allegedly committing offences of cheating and criminal breach of trust. MLA Kappan currently represents the Pala constituency in Kerala.
Justice C S Dias quashed the Revision Petition filed by MLA Kappan on finding that the Special Court only has to form a prima facie opinion as to whether there were sufficient grounds to proceed against the accused. The Court stated that the Special Court was not expected to appreciate the evidence on record and to conclude whether there were sufficient materials to proceed against the accused.
Case Title: Dr. Pramod John v State of Kerala
Citation: 2024 LiveLaw (Ker) 409
The Kerala High Court observed that to constitute an offence of 'abandonment of senior citizen', there should be total and complete abandonment without any arrangement of taking care of the person.
Case Title: Thomas Baby v Jojo V. Varghese and Others
Citation: 2024 LiveLaw (Ker) 410
The Kerala High Court held that an agreement to tap rubber trees should be registered as per the Kerala Registration Act. The Court held that rubber trees are immovable properties and an agreement with the owner of the plantation to tap the rubber creates an interest in the immovable property. Therefore, the document is a compulsorily registrable one.
The Court rejected the trial court's finding that the agreement constituted only a license, not a lease and no interest was created over an immovable property. The trial court held that latex is the juice of a rubber tree and the agreement creates an interest on the movable property. The High Court however held that the agreement was to take yield from the yielding rubber trees and hence the interest is created on rubber trees. The Court held that simply because the yield is extracted in juice form, it cannot be considered to be a movable property.
The Court considered whether yielding rubber trees can be considered as 'standing timber' so as not to come within the ambit of 'immovable property. It held that they cannot be considered as standing timber as they continue to draw sustenance from the soil and they have not attained stoppage of vegetation and nourishment for further growth
Case Title: State of Kerala V Gireesh Kumar & Connected Matter
Citation: 2024 LiveLaw (Ker) 411
The Kerala High Court has acquitted one Gireesh Kumar and overturned the death sentence imposed on him by the Sessions Court, after he spent over 10 years in jail. He had been convicted on charges of trespassing with intent to commit robbery, rape, and the murder of a 57-year-old woman in Kollam in 2013.
The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. was dealing with his appeal and the reference for confirmation of sentence by the Sessions court.
It found that a botched-up investigation was conducted by the police by adducing sham witnesses and there was a total absence of objective enquiry by the Sessions Court to assess whether the case falls within the rarest of rare category warranting death penalty. It thus granted Rs. 5 lakhs compensation to the appellant for living through the threat of death penalty for ten long years.
Case Title: Eldho Varghese v Liya Jose
Citation: 2024 LiveLaw (Ker) 412
The Kerala High Court has held that while transferring a divorce petition to another court, territorial jurisdiction of the Court to which the petition is transferred does not matter.
The High Court has power under Section 24 of the Code of Civil Procedure to transfer a proceeding to any Court subordinate to it and competent to try or dispose the suit. The Court held that competence is not with reference to territorial jurisdiction.
Case Title: Jeffin Kuriakose v State of Kerala
Citation: 2024 LiveLaw (Ker) 413
The Kerala High Court has held that aiding committed with the 'intention' of facilitating the offence would attract an offence of abetment punishable under the POCSO Act.
Section 16 of the POCSO Act defines abetment and the punishment is provided under Section 17.
Justice P.G. Ajithkumar found that the petitioner aided the minor victim in availing a flat on rent in the presence of the accused and has intentionally facilitated the offence and could be charged under Section 17.
Transfer Of Depreciable Capital Assets Attracts Capital Gains Tax: Kerala High Court
Case Title: PVR Tourist Home Versus CIT
Citation: 2024 LiveLaw (Ker) 414
The Kerala High Court has held that the transfer of the depreciable capital assets attracted capital gains tax under Section 45(4) of the Income Tax Act, in the absence of distribution of any capital asset among the partners following a dissolution of the appellant firm.
The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M., while upholding the order of the tribunal that the charge of short-term capital gains had to be in accordance with the provisions of Section 45(4) of the Income Tax Act, observed that the Appellate Tribunal did not, however, proceed to determine the tax effect, if any, that would follow pursuant to its finding as regards the charge of short-term capital gains.
Case Title: The Meenachil Taluk Cooperative Employees Cooperative Society Limited Versus Commissioner Of Income Tax (Appeals)
Citation: 2024 LiveLaw (Ker) 415
The Kerala High Court, while condoning the delay of 11 days, observed that filing an appeal in tax matters may require legal and technical assistance. The bench of Justice Murali Purushothaman has observed that the reason for not filing the a ppeal on time was the non-availability of the legal consultant.
Kerala High Court Quashes Order Demanding Late Fee For Delay In Filing GSTR-9C
Case Title: Raju Sreedharan Versus The Superintendent, Central Tax & Central Excise
Citation: 2024 LiveLaw (Ker) 416
The Kerala High Court has quashed the order demanding a late fee for delay in filing GSTR-9C.
The bench of Justice Murali Purushothaman relied on the decision of Kerala High Court in the case of Anishia Chandrakanth v. the Superintendent, Central Tax & Central Excise, in which it was held that in view of Notification No. 07/2023-Central Tax and Notification No. 25/2023, there appears to be no justification in continuing with the notices for non-payment of the late fee for belated GSTR-9C filed by taxpayers before April 1, 2023, the date on which one-time amnesty commences.
Case Title: Sandeep G V State of Kerala
Citation: 2024 LiveLaw (Ker) 417
The Kerala High Court has upheld the order of the trial court disallowing the discharge application of Sandeep, booked for the murder of Dr Vandana Das. The Court stated that the prosecution materials prima facie substantiate the framing of charges under Section 228 of CrPC against Sandeep to proceed with the trial.
Dr Vandana Das, the 23-year-old house surgeon was stabbed to death by Sandeep who was brought to the government hospital by Pooyappally police.
Justice A. Badharudeen while rejecting the defence argument that Sandeep committed the offence out of sudden and grave provocation without an intent to cause murder, observed that long-lasting provocation cannot be construed as sudden and grave provocation.
Other important Developments This Week
Kerala High Court Directs State To Stop All Construction For Eco-Tourism Activities On Kuruva Island
Case Title: In Re: Bruno
Case Number: WP(C) 13204/ 2021
The Kerala High Court ordered to stop all construction activities for eco-tourism purposes in Kuruva island until further orders. The Court had earlier ordered for temporary closing of all eco-tourism centres in Wayanad, which was after an elephant killed Vellachallil Paul, an eco-tourism employee in Kuruva island.
The Court during the hearing on 26th June came to know that sanction has been granted for construction activities worth about Rs. 2 Crore for the purposes of eco-tourism at Kuruva island. The Division Bench of Justice A. K. Jayasankaran Nambiar and Gopinath P. directed the Advocate General to get instructions as to how such a sanction was granted.
Plea In Kerala High Court Challenges Levy Of Court Fee In Cases U/S 138 Negotiable Instruments Act
Case Title: Dineshan K. K. v The Registrar (General) High Court of Kerala and Others
Case No.: WP(C) 16650/ 2024
A petition has been filed before the Kerala High Court challenging the levy of court fees in complaints under Section 138 of Negotiable Instrument relating to dishonour of cheque.
The Registrar General of Kerala High Court had issued an Official Memorandum directing to collection of the court fee as recommended by the Finance Bill, 2024. This was done by invoking the provisions of Kerala Provisional Collection of Revenue Act 1985. The petition argues that the collection of court fees is bad in law as Sections 4 and 5 of the Kerala Provisional Collection of Revenue Act is itself unconstitutional.
The Central Government has notified the appointment of Justice A. Muhamed Mustaque as the Acting Chief Justice of Kerala High Court. This follows upcoming superannuation of Chief Justice AJ Desai on July 04.
Case Title: Gurudeva College of Advanced Studies v State of Kerala and Others
Case Number: WP (C) 23964 of 2024
The Kerala High Court yesterday ordered the Police to offer protection to the principal, staff and students of Gurudeva College of Advanced Studies, Koyilandi. The police were asked to make sure that the law and order is maintained in the college. The protection order was granted as the college is set to re-open on 4th July.
The Principal of the college, Dr. Sunil Bhaskaran had alleged that B. R. Abhinav, SFI Koyilandi area committee president who is not a student of the college assaulted him. The issue started when the Principal denied some students permission to set up a help desk on the campus on the first day of admission. 3 SFI members in the college have been suspended over the incident. The college has been closed since the incident.
Case Title: Kerala Pradesh School Teachers Assosciation v State of Kerala
Case Number: WP(C) No 29565 of 2023 and other connected cases
The Kerala High Court has asked the State to explain how it will disburse the funds allocated by the government towards mid-day meals in government school.
An amount of Rs. 232 Crores has been allocated in the State Budget for supplementary expenses in the mid-day meals in school for the year 2024- 2025. The Government has to inform the court about the methodology used for calculating the amount, the manner in which they will distribute the amount and the timeline within which they will do it.
Justice Ziyad Rahman A. A. was hearing a petition filed by Kerala Pradesh School Teachers' Assosciation stating that headmasters of the schools have to meet the expenses of noon-meal scheme from their own pocket due to the inadequate and untimely disbursal of funds by the State.
Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director
Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024
The Kerala Infrastructure Investment Fund Board (KIIFB) submitted before the Kerala High Court that the Enforcement Directorate has no jurisdiction to investigate the misutilization of funds. It was submitted that the Reserve Bank of India (RBI) has to appoint an authorized person in writing to inspect as per Section 12 of the Foreign Exchange Management Act (FEMA).
Justice T R Ravi was considering the writ petition filed by KIIFB Challenging the summons issued against them by the ED to Dr Kandathil Mathew Abraham, (Chief Executive Officer, KIIFB) who was also the former Chief Secretary in relation to the masala bonds case. The summons was issued seeking the submission of documents and for taking oral evidence.
Kerala High Court Chief Justice AJ Desai today remarked that the sizeable representation of women in the legal filed in Kerala is a testament to the State's atmosphere of gender neutrality.
CJ Desai was speaking at the farewell function organised upon his superannuation.
Case Title: One Earth One Life v State of Kerala
Case Number: WP(C) NO. 1801 OF 2010 & Connected Cases
The State Government has informed the Kerala High Court that a Special Team has been constituted to inquire into forging of title deeds, including taking bribes by revenue officials in Munnar and Idukki districts.
The Special Team has been constituted pursuant to the directions of the Court. The Court had directed the Government to form a Special Team consisting of high rank officials with the team of others including revenue officials to enquire and investigate the role of public officials in forging the Patta, including receiving gratification.
Case Title: Sunny & Another v State of Kerala & Another
Case Number: Crl A. No. 1024 of 2024 (Filing No.)
The Kerala High Court directed the registry to ensure that the victims/de-facto complainants are made a party in proceedings in cases involving offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Justice K Babu directed the Registry to follow its earlier directions in this regard. The Court made this observation as it was dealing with an appeal where the victim was not impleaded.
Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director
Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024
Former Finance Minister Dr Thomas Isaac submitted before the Kerala High Court that he is an individual citizen and requires greater protection than KIIFB which is a statutory corporation against the summons issued by the Enforcement Directorate (ED) in the 'masala bonds' case.
It was submitted that the summons issued against Dr Isaac under the Foreign Exchange Management Act has serious consequences and affects several rights such as the Right To Reputation guaranteed by the Constitution.
Case Title: Suo Moto v State of Kerala and Others
Case No: WP(C) 7844/ 2023
The Kerala High Court said that the Railways will have to be regarded as a 'bulk waste generator' as most of the waste found throughout the tracks seems to be from the trains. The Court observed that Railways has a duty to prevent the disposal of waste on the tracks.
The Court said that the waste disposed on the tracks flows into water bodies causing substantial environmental damage. Though the waste is properly managed near the stations, enough steps are not taken to remove waste from the side of the tracks. The Court said that one reason of dumping is that the compartments does not have sufficient waste bins.