Nominal Index [Citation: 2023 LiveLaw(Ker) 22-38]Union Bank of India v. The Deputy Chief Engineer and Ors. 2023 LiveLaw(Ker) 22Justice K.K. Denesan (Retd. Judge) v. Senior Accounts Officer & Ors. 2023 LiveLaw (Ker) 23Razak Mether v. State of Kerala and Anr. 2023 LiveLaw (Ker) 24Ajeesh Nath P.S. & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 25 Ambili S. Pilla v. Vinod Kumar...
Nominal Index [Citation: 2023 LiveLaw(Ker) 22-38]
Union Bank of India v. The Deputy Chief Engineer and Ors. 2023 LiveLaw(Ker) 22
Justice K.K. Denesan (Retd. Judge) v. Senior Accounts Officer & Ors. 2023 LiveLaw (Ker) 23
Razak Mether v. State of Kerala and Anr. 2023 LiveLaw (Ker) 24
Ajeesh Nath P.S. & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 25
Ambili S. Pilla v. Vinod Kumar Pilla and Anr. 2023 LiveLaw (Ker) 26
Vasu Coco Resorts Private Limited v. State of Kerala and Ors. 2023 LiveLaw (Ker) 27
Rasheeda v. Kerala State Electricity Board Ltd. & Ors. 2023 LiveLaw (Ker) 28
Suo Motu v. State of Kerala and Ors. 2023 LiveLaw(Ker) 29
Advocate Cherunniyoor V. Jayaprakash v. Sree Narayana Trust & Ors. 2023 LiveLaw (Ker) 30
Emmanvel Peter v. State of Kerala & Anr. 2023 LiveLaw (Ker) 31
S. Surendran v. State of Kerala & Ors. 2023 LiveLaw (Ker) 32
Mr. Unnikrishnan V.V. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 33
Star Health Insurance And Allied Insurance Company Ltd v. Avinash T and Anr. 2023 LiveLaw(Ker) 34
Meharban M.H. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 35
Kerala Judicial Officers' Association & Anr. v. State of Kerala & Ors. and other connected matters 2023 LiveLaw (Ker) 36
Aaron S John v. TKM College of Engineering, Kollam and Ors. 2023 LiveLaw (Ker) 37
P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters 2023 LiveLaw(Ker) 38
Orders/Judgments This Week
Case Title: Union Bank of India v. The Deputy Chief Engineer and Ors.
Citation: 2023 LiveLaw(Ker) 22
The Kerala High Court observed that Electricity Board's claim for additional amount on the basis of alleged unauthorised usage of electricity is not barred by law of limitation when the violation is a continuous and recurring one.
The Court observed that this is in addition to the factors provided under Section 126 (5) of the Electricity Act 2003.
Justice Shaji P Chaly observed that, "the limitation under the Limitation Act does not hit the claim of the Board as contented by the petitioner, because the instant violation is a continuous and recurring one, renewing the dues every day, till the unauthorized load is dismantled."
Case Title: Justice K.K. Denesan (Retd. Judge) v. Senior Accounts Officer & Ors.
Citation: 2023 LiveLaw (Ker) 23
The Kerala High Court considered the question as to whether the pension of a High Court judge, who has been reappointed as an Ombudsman after retirement, could be deducted from his salary, and answered the same in the negative.
Justice Anu Sivaraman, observed in this regard,"the provisions of the Act (Panchayat Raj Act) and the Rules (Ombudsman for Local Self Government Institutions (Inquiry of Complaints and Service Conditions) Rules, 1999) are quite clear in as much as the provision specifically provides that a person appointed as Ombudsman would be entitled to salary and allowances equivalent to that of a High Court Judge. The Act or the Rules, admittedly, do not provide for any deduction of pension".
Case Title: Razak Mether v. State of Kerala and Anr.
Citation: 2023 LiveLaw (Ker) 24
The Kerala High Court observed that a complaint filed under Section 138 of the Negotiable Instruments Act through power of attorney holder is perfectly legal and competent. However, the power of attorney holder can depose and verify on oath before the Court in order to prove the contents of a complaint, only when he has witnessed the transaction as an agent of the payee/ holder in due course or possess due knowledge regarding the said transactions.
Justice A. Badharudeen further observed that the complainant has to make specific assertions as to the knowledge of the power of attorney in the said transaction explicitly in the complaint.
"It is true that as per the ratio in A.C Narayanan first case (A.C.Narayanan v. State of Maharashtra &anr), the complaint filed under Section 138 of the Negotiable Instruments Act through power of attorney holder is perfectly legal and competent. But the power of attorney holder could depose and verify on oath before the court in order to prove the contents of the complaint, only when the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions and also it is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder, who has no knowledge regarding the transactions. If the above stipulations are not satisfied, the power of attorney could not depose and verify on oath before the court."
Case Title: Ajeesh Nath P.S. & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 25
The Kerala High Court quashed the proceedings under Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019 based on the settlement arrived at between the parties.
The bench of Justice Kauser Edappagath passed the order. It observed,
"The Apex Court in Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)], Narinder Singh & Ors. v. State of Punjab & Ors. [(2014) 6 SCC 466] and in State of Madhya Pradesh v. Laxmi Narayan & Ors. [(2019) 5 SCC 688] has held that the High Court by invoking S.482 of Cr.P.C can quash criminal proceedings in relation to non compoundable offence where the parties have settled the matter between themselves notwithstanding the bar under S.320 of Cr.P.C. if it is warranted in the given facts and circumstances of the case or to ensure the ends of justice or to prevent abuse of process of any Court".
Case Title: Ambili S. Pilla v. Vinod Kumar Pilla and Anr.
Citation: 2023 LiveLaw (Ker) 26
The Kerala High Court reiterated the importance of reasoned orders by authorities performing judicial or quasi-judicial functions and observed that it is an essential requirement of the rule of law that some reasons at least in brief must be disclosed in the order.
The Division Bench consisting of Justice Anil K. Narendran and Justice P. G. Ajithkumar observed,
The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. it would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority.
Case Title: Vasu Coco Resorts Private Limited v. State of Kerala and Ors.
Citation: 2023 LiveLaw (Ker) 27
The Kerala High Court recently observed that action of taking away the benefits of concession/ subsidy promised by the government can only be done prospectively.
Justice Amit Rawal observed that, "Principle of promissory estoppel arises while extending the promise if steps have been taken where the benefit cannot be taken away after expiry of number of years. There is no bar for the Government to stop the concession or benefit of subsidy prospectively for the units which have already raised to construction with a project considering the factor of subsidy. In case such subsidy is not paid to such persons, the affected parties would be liable to pay the charges along with interest for no rhyme and reasons."
Electricity Dept Has No Business To Check Property Ownership Of Consumer: Kerala High Court
Case Title: Rasheeda v. Kerala State Electricity Board Ltd. & Ors.
Citation: 2023 LiveLaw (Ker) 28
The Kerala High Court recently held that where a civil dispute is pending before the Civil Court, the Electricity Department ought to be circumspect in entertaining a complaint, unless there is gross violation of provisions of the Act.
Justice Amit Rawal passed the above order in a petition that was filed challenging the communication issued by the Electricity Board to the petitioner, asking her to show ownership of the property in question.
"Electricity department has no business to check the veracity of the ownership. Once the matter is pending before the civil court, Electricity Department should be circumspect in entertaining the complaint until and unless there is gross violation of provisions of the Act", the Court observed.
Case Title: Suo Motu v. State of Kerala and Ors.
Citation: 2023 LiveLaw(Ker) 29
The Kerala High Court said that action must be taken against the Devaswom guard who recently misbehaved with the devotees at Sabarimala.
The division bench of Justice Anil K. Narendran and Justice P. G. Ajithkumar after perusing the report filed by the Special Commissioner, Sabarimala on the incident and viewing a video recording, observed that:
…the body language and the facial expression of the Devaswom guard, while shoving the pilgrims in front of Sreekovil of Sabarimala Sannidhanam has to be deprecated in the strongest words. For such misbehaviour towards pilgrims, the Devaswom guard has to be proceeded against, in accordance with law.
Case Title: Advocate Cherunniyoor V. Jayaprakash v. Sree Narayana Trust & Ors.
Citation: 2023 LiveLaw (Ker) 30
The Kerala High Court approved the modification of the scheme of Sree Narayana Trust. The Scheme was framed pursuant to a judgement of the court in a 1972 case and clause 34 permits any member of the Board of Trustees to approach high court for appropriate modification.
While the clause 34A of the Scheme permits members of the Board of Trustees to move civil court against office bearers of Trust or the executive committee for violation of Trust scheme or on breach of trust, the new modification states that "if an office bearer of a Trust is involved in a criminal offence of breach of trust or in an offence relating to the property of a Trust and, his continuation in the office is having conflict with the interest of the Trust, or is detrimental to the interest of the Trust, the office bearer shall abstain to hold the office till he is discharged or acquitted in such case."
'Consensual Relationship, Promise To Marry Was Not False': Kerala High Court Quashes Rape Case
Case Title: Emmanvel Peter v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 31
The Kerala High Court on Tuesday quashed rape case against a 31-year-old man, observing that he and the complainant were in a consensual relationship and his promise to marry her was not with an intention to deceive her.
Justice Kauser Edappagath reiterated that in an allegation of rape on false promise of marriage, the courts have to carefully examine whether the accused actually wanted to marry the victim or had malafide motives and had made a false promise to this effect.
The Court took note of the Apex Court decisions in Deepak Gulati v. State of Haryana (2013) and Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (2019) and said it has been observed that if an accused had not made the promise with the sole intention to seduce the victim to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or clandestine motives, it would be a clear case of rape.
Case Title: S. Surendran v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 32
The Kerala High Court held that the court fee could not be refunded after a suit had been decided on merits, particularly when the petitioner had filed the application for return of the plaint and court fee, without challenging the decree therein.
Justice C.S. Dias observed in this context that the judgment in the civil suit had been delivered after a full-fledged trial and a complete adjudicatory process.
Case Title: Mr. Unnikrishnan V.V. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 33
The Kerala High Court on Thursday held that where a person had not been a judicial officer either on the date of submission of application for appointment as the District Judge, or on the date of his appointment as such, and he had only been a Munsiff-Magistrate trainee, the same would not be a bar for his appointment to the post of District Judge.
Justice Anu Sivaraman passed the above order in a petition challenging the appointment of A.V. Telles (3rd respondent), on the ground that he had been undergoing Munsiff-Magistrate training at the Kerala Judicial Academy, and observed,
"a reading of the provisions of the Kerala Judicial Service Rules would make it amply clear that the initial induction in the post of Munsiff-Magistrate is as pre-induction trainees and that Ext.P6 is an order deputing the incumbents whose names are contained in Ext.P5 list for the pre-induction training. Since the Special Rules specifically provide for a pre-induction training and a later appointment as Munsiff-Magistrate after completion of the period of training, the contention of the petitioner that the 3rd respondent stood appointed as Munsiff-Magistrate and was therefore a judicial officer cannot be accepted" the Court said.
Case Title: Star Health Insurance And Allied Insurance Company Ltd v. Avinash T and Anr.
Citation: 2023 LiveLaw(Ker) 34
The Kerala High Court recently observed that COVID First Line Treatment Centre can be termed as a Hospital for the purpose of insurance claims.
Justice V G Arun said that as per the COVID-19 advisory for patient admission to CFLTCs issued by the Government, the Centre identified as COVID Health Care Centre should treat all mild and moderate symptomatic persons under surveillance and should be utilised for treating positive cases when need arises.
CFLTCs are Primary Level Health Care Centres set up for providing care to less serious cases and referral of serious cases to COVID hospitals, so as to avoid crowding in COVID Hospitals and avoid wastage of resources.
Case Title: Meharban M.H. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 35
The Kerala High Court recently directed the Principal of the Sree Narayana Law College, Poothotta to consider the claim of a candidate who had been denied admission to the 5 year LL.B. Course on the ground that her qualification of three year diploma/polytechnic was not equivalent to the one prescribed by the Bar Council of India for admission.
Justice Devan Ramachandran took note of the Circular issued by the BCI granting equivalency to the qualification of three year Diploma/Polytechnic course viz-a-viz the Plus Two certificate course for admission to the 5 year integrated LL.B. course, and observed that:
"Taking note of the afore submissions and since there does not appear to be any dispute as regards the qualification of the petitioner, I allow this writ petition and direct the 5th respondent – Principal of the College, to consider her claim for admission to the available vacancy, subject to any directives that may be issued with respect to it by the 3rd respondent – Commissioner for Entrance Examinations; and to complete proceedings as expeditiously as is possible, but not later than one week from the date of receipt of a copy of this judgment".
Case Title: Kerala Judicial Officers' Association & Anr. v. State of Kerala & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 36
The Kerala High Court held that the special pay granted to judicial officers is a part of their pay and that it is to be reckoned for the purpose of calculation of pension.
The Single Judge Bench of Justice Anu Sivaraman was considering a batch of petitions filed by judicial officers who are either working or have retired from service as District and Sessions Judges, seeking refixation of pension payable to the petitioners and members of the Kerala Judicial Officers Association by reckoning special pay which is paid to them as part of their emoluments.
Case Title: Aaron S John v. TKM College of Engineering, Kollam and Ors.
Citation: 2023 LiveLaw (Ker) 37
The Kerala High Court on Wednesday, noting the increasing instances of sexual harassment against students in schools and colleges, observed that lessons in good behaviour and etiquette must be part of the curriculum and at least at the Primary Class level, teachers must be encouraged to instil virtues and values in students.
Justice Devan Ramachandran observed that the archaic concepts of masculinity have changed but it needs to change more.
"Boys, even from a very young age, often grow up with certain sexist stereotypes - reinforced by peer and other social influences. Showing a girl/woman respect and honour is not old fashioned; on the contrary, is a virtue for all times. Sexism is not acceptable or “cool”. One exhibits strength when he respects a girl/woman. Respectfullness is an imperative that needs to be inculcated very young. How one treats a woman gives an insight to his upbringing and personality."
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
Citation: 2023 LiveLaw(Ker) 38
The Kerala High Court allowed anticipatory bail applications of former Police and Intelligence Bureau officers, including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews, in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case.
A bench of Justice K. Babu passed the order. The Court directed that the accused must appear before the CBI for interrogation on January 27 between 10 AM and 11 AM. In the event of their arrest, they shall be released on bail on executing bonds for Rs 1 lakhs each with two solvent sureties each for the like sum. They cannot leave India without the permission of jurisdictional court.
Case Title: P.S. Jayaprakash v. Central Bureau of Investigation and other connected matters
Citation: 2023 LiveLaw(Ker) 38
The Kerala High Court, while allowing the anticipatory bail applications of former Police and Intelligence Bureau officers-including former Gujarat ADGP RB Sreekumar and former Kerala DGP Siby Mathews- in the case relating to the alleged framing of former ISRO scientist Nambi Narayanan in the 1994 ISRO Espionage case, observed that prosecution has failed to prima facie establish any element of conspiracy to hold that a foreign power had a hand in persuading the petitioners in the registration of the two crimes against Narayanan.
Justice K. Babu, after perusing the Case Diary and DK Jain Committee Report, observed that he was unable to find any credible material to prima facie find any elements of conspiracy as contended by the Additional Solicitor General.
"I am of the view that the prosecution has so far not prima facie established any element of conspiracy as projected by the learned Additional Solicitor General...have carefully examined the Case Diary and the Justice D.K.Jain Committee Report. I am unable to find any credible material to prima facie find any elements of such conspiracy. There is absolutely no indication or credible material to prima facie hold that a foreign power had a hand in persuading the petitioners/accused in the registration of the two crimes referred to above."
Other Significant Developments This Week
The Kerala Police has started a preliminary investigation in a complaint that an advocate has taken money from a client in the name of paying bribe to a High Court judge for granting anticipatory bail.
The police probe is based on a complaint made by the High Court registrar pursuant to a decision taken by a full court of all judges. The allegations are against Advocate Saiby Jose Kidangoor, who was recently elected as the President of the Kerala High Court Advocates Association.
No Proposal To Shift Kerala High Court To Kalamassery: Registrar General To KHCAA President
Registrar General of Kerala High Court in a letter to the President of Kerala High Court Advocates' Association has clarified that there is no proposal to shift the High Court to Kalamassery.
"Instead, the Government has only been requested to allot additional land to the High Court for further development," the Registrar General said in the communication dated January 16.
Case Title: Kerala Chamber of Commerce and Industry v. State of Kerala and Malayalavedi v. State of Kerala
The Kerala High Court observed that the State Government ought to have directly proceeded to attach the properties of the PFI and its office bearers, and bring the same to sale for realization of the amount of Rs 5.20 Crore towards the damage caused during the flash hartal in September 2022.
The court was told by the State Attorney that the notice had been issued to the Secretary of PFI, Abdul Sathar, asking to show cause as to why the property need not be attached, since the court had directed that the recovery proceedings to be initiated by invoking the provisions of the Revenue Recovery Act.
Walayar Rape Case | Victims' Mother Seeks Monitoring Of CBI Investigation By Kerala High Court
Case Title: XXX v. The Central Bureau of Investigation
The mother of the two minor girls in the Walayar rape case has approached the Kerala High Court seeking monitoring of the probe being conducted by the Central Bureau of Investigation (CBI).
The prosecution case was that the accused persons had trespassed into the shed where the deceased minor girls were residing with their family, since April 2016, on various occasions, and had subjected the girls to rape, and it was on account of the sexual assault and harassment that the minor girls committed suicide by hanging themselves. The girls, aged 13 and 9 years, were found hanging in the shed.
Can't Snoop On Neighbours In Guise Of Installing CCTV Cameras For Security: Kerala High Court
Case Title: Agnes Michale v. Cheranalloor Grama Panchayat & Ors.
The Kerala High Court on Tuesday made a prima facie view that no one should be permitted to snoop into the affairs of their neighbours, in the guise of installing CCTV cameras for security.
Justice V.G. Arun thus directed the State Police Chief to come out with appropriate guidelines regarding the manner in which CCTV cameras are to be installed, in consultation with the State government.
Case Title: In Re: Suo Motu Proceedings Initiated Pursuant to Newspaper Reports dated 02.05.2022 on Food Poisoning
The Kerala High Court on Wednesday directed the Secretary, Health and Family Welfare Department, to file a detailed report regarding numerous food poisoning incidents that occurred in the State recently and the steps taken against perpetrators.
At least 68 people were admitted to various hospitals on Tuesday after having food from an eatery in North Paravur at Ernakulam, mainstream media reported. The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly has taken judicial notice of the mishap.
Case Title: Nithin Ramakrishnan v. Union of India and Ors.
The Kerala High Court on Monday directed the Central Government to consider whether penalty can be imposed on drivers using the lanes reserved for Fastag vehicles, without fitting Fastag or with expired Fastag.
The direction was issued while considering a petition alleging that the delay on the part of the Concessionaire's staff in collecting the toll at Paliyekkara Toll Plaza and their disputes with the drivers are resulting in traffic snarls.
Kerala Govt Raises Retirement Age Of Kerala High Court Staff
The Government of Kerala has amended the Kerala High Court Services (Determination of Retirement Age) Act, 2008 to increase the retirement age of the High Court staff.
The amendment has raised the age of retirement for the High Court staff, who were appointed before April 2013, from 55 to 56 years and the retirement age of those who were appointed after April 1, 2013, and are members of the National Pension System from 55 to 60 years.