Nominal Index [Citation: 2023 LiveLaw (Ker) 74-88]The Town Planner, District Town Planning Officer V Joseph Jacob & Others. 2023 LiveLaw (Ker) 74Hameedali K.P. v. Chief Executive Officer & Ors. 2023 LiveLaw (Ker) 75Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency 2023 LiveLaw (Ker) 76Siji V State of Kerala 2023 LiveLaw (Ker) 77Rajaneesh Kumar R....
Nominal Index [Citation: 2023 LiveLaw (Ker) 74-88]
The Town Planner, District Town Planning Officer V Joseph Jacob & Others. 2023 LiveLaw (Ker) 74
Hameedali K.P. v. Chief Executive Officer & Ors. 2023 LiveLaw (Ker) 75
Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency 2023 LiveLaw (Ker) 76
Siji V State of Kerala 2023 LiveLaw (Ker) 77
Rajaneesh Kumar R. & Ors. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 78
Femeena E. v. State of Kerala 2023 LiveLaw (Ker) 79
State of Kerala rep. by Additional Chief Secretary & Ors. v. Dr. Louis J. Kattady & Ors. 2023 LiveLaw (Ker) 80
Thaikkudam Bridge v. Hombale Films & Ors. 2023 LiveLaw (Ker) 81
Manu Dev V XXX and Another 2023 LiveLaw (Ker) 82
XXX v XXX 2023 LiveLaw (Ker) 83
Aleyamma Kuruvilla v. Mahatma Gandhi University 2023 LiveLaw (Ker) 84
Major Vellayani Devi Temple Advisory Committee & Anr. v. State of Kerala & Ors. and Sreeraj Krishnan Potti M.S. v. Travancore Devaswom Board & Ors. 2023 LiveLaw (Ker) 85
R v. R 2023 LiveLaw (Ker) 86
Kalukutty v. P.M. John & Anr. 2023 LiveLaw (Ker) 87
Shanil v. State of Kerala & Anr. and other connected matters 2023 LiveLaw (Ker) 88
Judgments/Orders This Week
Case Title: The Town Planner, District Town Planning Officer V Joseph Jacob & Others.
Citation: 2023 LiveLaw (Ker) 74
The Kerala High Court recently held that after a purchase notice has been issued by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016, it is not mandatory for the person to wait for completion of variation of the Detailed Town Planning Scheme or Master Plan, to utilise the land.
A division bench of Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen was considering the procedure to be followed after issuance of a purchase notice by a land owner under Section 67(2) of the Kerala Town and Country Planning Act, 2016 in an appeal filed by the Town Planner of Kottayam district.
Case Title: Hameedali K.P. v. Chief Executive Officer & Ors.
Citation: 2023 LiveLaw (Ker) 75
The Kerala High Court recently observed that time has come for it to stop entertaining writ petitions seeking directions relating to a wakf and to insist that the party should first approach the authorities under the Wakf Act.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. dismissed a writ petition filed by a person who claimed to be the present hereditary Muthavalli of the Pannur Karandomthook Juma-Ath Palli Committee and challenged the order by which the Wakf Board had appointed a returning officer to conduct elections to the Juma-ath Committee.
It observed, "Any dispute, question, or other matters whatsoever and whatever manner which arises relating to a wakf property can be decided by the wakf Tribunal. No doubt, alternate remedy is not an absolute bar for filing of the writ petition, but at the same time, it is well settled that writ jurisdiction is a discretionary jurisdiction, and when there is an efficacious alternate remedy, ordinarily, a party must resort to that remedy first before approaching this Court. Entertaining a writ petition straight away without insisting that a party should avail alternate remedy is an over-liberal approach that is causing immense difficulties to the high court, adding to the huge arrears".
Case Title: Midlaj @ Abu Mis'ab v. Union of India represented by National Investigation Agency
Citation: 2023 LiveLaw (Ker) 76
The Kerala High Court has dismissed the applications seeking suspension of sentence of three persons, who were last year convicted for attempting to travel to Syria for allegedly joining the ISIS. The applicants had argued they have undergone more than five years in custody, and were even never released on bail during trial.
The Division Bench of Justice Alexander Thomas and Justice Sophy Thomas noted that the Apex Court decision in Satender Kumar Antil vs. Central Bureau of Investigation (2022) that the delay in taking up the main appeal coupled with the benefit conferred under Section 436A of Cr.P.C among other factors ought to be considered for releasing the applicants on bail, was only meant to be a guideline, and that each case pertaining to a bail application had to be decided on its own merits.
"Here is a case where the applicants/appellants acted against the interest of the nation as they wanted to wage war against Syria, an Asiatic power at peace with the Government of India. So, even if the applicants/appellants have undergone major portion of the sentence imposed on them, it is not safe to release them on bail, as we do not know whether they still entertain the idea of performing Hijra to Syria for indulging in violent jihad," the court observed.
Case Title: Siji V State of Kerala
Citation: 2023 LiveLaw (Ker) 77
The Kerala High Court recently held that a person accused of offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot directly approach the High Court seeking bail.
A single bench of Justice A. Badharudeen, was hearing the anticipatory bail application filed by the petitioner who was accused of offences under Section 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act. The petitioner had on an earlier occasion approached the Special Court under the SC/ST (POA) Act, for grant of anticipatory bail. However, the same was refused by the special court. The petitioner later approached the High Court by filing an appeal under Section 14A of the SC/ST Act, which was also dismissed.
Case Title: Rajaneesh Kumar R. & Ors. v. Travancore Devaswom Board & Ors.
Citation: 2023 LiveLaw (Ker) 78
The Kerala High Court recently directed the Devaswom Commissioner to conduct an enquiry into alleged mismanagement of the affairs of the Sree Devi Bhuvaneswari of Manakkattu Devi Temple, Pallipad, and to take the appropriate follow-up action.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was considering a writ petition that had been filed by certain devotees of the Temple seeking a mandamus to be issued to the Travancore Devaswom Board (1st respondent herein) to assume the management of the said Temple under the provisions of Section 37 of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as 'the Act'), and also for conducting an enquiry into the mismanagement of the affairs of the Temple under Section 38 of the Act.
"As rightly contended by the learned counsel for respondents No.4 (the Deity) and 5 (the Bharana Samithy) only if two mandatory conditions, namely, there is mismanagement and the same is proved, the 1st respondent get jurisdiction to invoke the provisions of Section 37 of the Act. For deciding that, the 1st respondent should conduct the enquiry which the Board has already ordered through its officers, and reach a logical conclusion", it observed while allowing the petition.
Case Title: Femeena E. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 79
The Kerala High Court set aside a Magistrate court’s order under Section 156(3) CrPC, insofar as it did not order Police investigation in an alleged case of theft.
Single Judge Bench of Justice K. Babu observed that in a case where the allegations warrant a recovery under Section 27 of the Evidence Act, it would be necessary to entrust that task to the Police.
"If it is alleged that the documents or other material objects are in the physical possession of the accused or other persons then, in the interest of justice, the Police would be given the task of investigating and recovering them by resorting to the power under the Cr.P.C. In such cases, without ordering an investigation as provided under Section 156(3), the complainant cannot be in a position to retrieve the relevant evidence regarding his allegations. This may lead to putting the complainant handicapped in that he would be failing to prove his case without being able to bring the relevant materials having probative value on record."
Case Title: State of Kerala rep. by Additional Chief Secretary & Ors. v. Dr. Louis J. Kattady & Ors.
Citation: 2023 LiveLaw (Ker) 80
The Kerala High Court has held that a teacher, who entered service with M.Phil and was awarded two advance increments on the basis of the M.Phil degree, and who subsequently acquired Ph.D while in service, would not be entitled to three additional non-compounded increments provided in the State Government order based on the Sixth UGC Scheme.
A Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha, observed that the teacher could not be regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of the subsequent Government Order in terms of the Sixth UGC Scheme entitling teachers who completed their Ph.D. in service to three non-compounded increments.
"The pointed question is as to whether the petitioner could be regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of Ext.P4 order.If a person like the petitioner who has been awarded Ph.D about two years prior to the coming into force of Ext.P4 order and who was governed by Clause 6.17 of Ext.P2 order is regarded as a teacher in service who has been awarded Ph.D at the time of coming into force of Ext.P4 order, then all similar teachers who were governed by Clause 6.19 of Ext.P2 order would also fall under Clause 10.5, as the Sixth Scheme of the UGC .... only precludes teachers who have already availed the benefit of advance increments from possessing Ph.D at the entry level under the earlier Scheme, from claiming advance increments under the Sixth Scheme in terms of Clause 7(xxi) therein. If that be so, they can also claim three non-compounded increments in addition to the two advance increments which have been granted to them in terms of Clause 6.19 of Ext.P2 order. Such an inference, according to us, cannot be made, for if such an inference is made, those who have entered service with Ph.D when Ext.P2 order was in force will have to be satisfied with four increments, whereas those who have entered service without Ph.D, but acquired Ph.D while in service, will be able to claim five increments, two under the Fifth Scheme and three under the Sixth Scheme", it was observed.
Case Title: Thaikkudam Bridge v. Hombale Films & Ors.
Citation: 2023 LiveLaw (Ker) 81
In relation to the row over alleged plagiarism by the "Varaharoopam" song of "Kantara", the Kerala High Court has set aside the order passed by District Court Kozhikode which returned the plaint filed by Thaikkudam Bridge alleging copyright infringement by the makers of the Kannada superhit film. The District Court had cited two main reasons for returning Thaikkudam Bridge's plaint : one, the suit should be filed before Commercial Court being a commercial dispute; two, the defendants do not reside or carry out business within Kozhikode jurisdiction.
Allowing the first appeal filed by Thaikkudam bridge, the High Court has now set aside the District Court's order. While the appeal was pending in the High Court, Thaikkudam bridge had deleted producer Hombale Films, director Rishabh Shetty and the film's distributers from the array of defendants. So, the plaint is now confined only to Kantara's music director BL Ajaneesh.
The order passed in Thaikkudam Bridge's appeal by a bench of Justice MR Anitha is notable for its discussion on the interplay between Section 20 of the Code of Civil Procedure, Section 62 of the Copyright Act and the provisions of the Commercial Courts Act regarding jurisdiction to try a copyright infringement suit.
Case Title: Manu Dev V XXX and Another
Citation: 2023 LiveLaw (Ker) 82
The Kerala High held that principles of fair trial demands that no party be denied the opportunity to correct its errors and that courts must be magnanimous in allowing such mistakes to be corrected.
A single bench of Justice K Babu observed that an error or omission on the part of a party to trial is not to be confused with lacuna. While a lacuna points to an intrinsic weakness in the case of a party, an error might be a mere oversight or omission. The court cannot deny a fair trial by refusing any party an opportunity to correct these errors.
“The lacuna in a case need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses. Such an error or an omission cannot be understood as “lacuna”, which a Court is not expected to allow the parties to fill up. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The Court should be magnanimous in allowing such mistakes to be corrected. The function of a criminal Court is the administration of criminal justice and not to concentrate on omissions and errors.”
Case Title: XXX v XXX
Citation: 2023 LiveLaw (Ker) 83
The Kerala High Court observed that when a child is grown up and is capable of making rational decisions on his/her own, the court must not give too much importance to the demands of the parents' battling the custody of the child.
A division bench of comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was hearing a challenge against the order of a family court that had denied custody to the father. The court in this case had personally interacted with the child to ascertain his desire. The child had expressed his desire to stay with his mother.
"The welfare of the child has to be given predominance. Since he is grown up and able to take rational decision in his personal matters, too much importance cannot be given to the parents' demands."
Case Title: Aleyamma Kuruvilla v. Mahatma Gandhi University
Citation: 2023 LiveLaw (Ker) 84
The Kerala High Court considered the question as to whether the Principal of a UGC affiliated private college in the State could be appointed by promotion, contrary to that provided in the UGC Regulations for maintenance of the standards in institutions for higher education.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas, while considering an appeal by a person who had been appointed to the post of Principal by promotion, and not by direct recruitment, perused the MG University Act, as well as the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (Regulations, 2018), and observed that,
"Insofar as the UGC Regulations prescribe direct recruitment as the only method of appointment to the post of Principal of affiliated colleges, if a candidate is appointed as Principal by promotion, the said appointment can be construed to be only as one made disobeying the UGC Regulations".
Case Title: Major Vellayani Devi Temple Advisory Committee & Anr. v. State of Kerala & Ors. and Sreeraj Krishnan Potti M.S. v. Travancore Devaswom Board & Ors.
Citation: 2023 LiveLaw (Ker) 85
The Kerala High Court held that the District Administration or the Police could not insist that only ‘politically neutral’ coloured decorative materials be used for temple festivals. It added that a worshipper or devotee also has no legal right to insist that saffron/orange coloured decorative materials alone are used for festivals in a temple under the management of the Travancore Devaswom Board.
"Politics has no role to play in the conduct of daily worship and ceremonies and festivals in temples. A worshipper or a devotee has no legal right to insist that saffron/orange coloured decorative materials alone are used for festivals in a temple under the management of the Travancore Devaswom Board. Similarly, the District Administration or the Police cannot insist that only ‘politically neutral’ coloured decorative materials are used for temple festivals. The District Administration or the police cannot meddle with the power of the Travancore Devaswom Board in conducting Kaliyoottu festival in accordance with the custom, rituals and practices of that temple", the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed.
It went on to hold however, that, "in case there is an apprehension of any untoward incident in the temple premises or in the near vicinity of the temple, that may hamper the law and order situation, which would affect the smooth conduct of the festival, the District Administration and the police shall take appropriate steps to ensure that law and order in the temple premises and in the near vicinity of the temple is maintained properly".
Family Court Does Not Have Jurisdiction To Entertain Claim For Defamation: Kerala High Court
Case Title: R v. R
Citation : 2023 LiveLaw (Ker) 86
The Kerala High Court held that a family court does not have the jurisdiction to entertain a claim for defamation. For a family court to assume jurisdiction, the dispute must have a proximate relationship to the marital relationship of the parties, the court observed.
A division bench of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing an appeal filed by the wife, claiming damages for defamation against her husband and father-in-law. The cause of action was the pleadings before the Family Court and also utterances made in the presence of others, describing her as a mentally ill person. The court considered the question of whether the family court has jurisdiction to entertain a petition claiming compensation on account of defamation. The court was of the opinion that in such cases the determining factor is the nature of the dispute involved, not the identity of the parties.
“The cause of action for the appellant to claim compensation is the injury allegedly caused to her reputation on account of such libel and slander. It is an action for tort. A tort is a civil wrong and that by itself constitutes cause of action. Whether or not she is married to the 1st respondent, the alleged statements made by the respondents if defamatory, is a sufficient cause of action.”
Case Title: Kalukutty v. P.M. John & Anr.
Citation: 2023 LiveLaw (Ker) 87
The Kerala High Court recently held that the monetary compensation to be awarded to a housewife who had been injured due to the reckless application of brakes while traveling in a Kerala State Road Transport Corporation (KSRTC) bus, would have to be measured and weighed on the same scales, as it would, had she been a working woman.
"...the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, is outrageous and beyond comprehension. The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness", Justice Devan Ramachandran observed while enhancing the compensation that had been awarded by the Tribunal.
S.52A NDPS Act Not Bar To Grant Interim Custody Of Seized Vehicles U/S 457 CrPC: Kerala High Court
Case Title: Shanil v. State of Kerala & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 88
The Kerala High Court held that jurisdictional courts, such as the Special Court and Magistrate Court, are vested with the power to grant interim custody of vehicles seized in connection with offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS) under Section 457 CrPC, irrespective of the procedure for disposal stipulated in Section 52A of the Act.
Justice V.G. Arun arrived at the above finding while noting that the Apex Court had, in Sainaba v State of Kerala & Anr. (2022), reversed the finding in Shajahan v. Inspector of Excise (2019), that Magistrates were denuded of the power to grant interim custody under Section 451 CrPC.
"...the appeal (in Sainaba) was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted".
Other Significant Developments
Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.
The Kerala High Court on Tuesday asked Advocate Saiby Jose Kidangoor, who is accused of collecting money from clients under the pretext of bribing High Court judges, to appear before the investigating officer as and when required, and cooperate with the probe in the bribery case.
Justice Kauser Edappagath refused to pass any interim order to protect Advocate Saiby from arrest even as his counsel pressed for the same. It was noted that the same submission had been made previously, and that the prosecution had said before that the petitioner would not be arrested.
The Ernakulam District and Sessions court, has on Tuesday, remanded the former Principal Secretary to the Chief Minister of Kerala, M. Sivasankar, to the custody of the Enforcement Directorate (ED) for a period of 5 days (until 2:30 pm on Monday, February 20) in connection with the LIFE Mission case. LIFE(Livelihood, Inclusion and Financial Empowerment) Mission' is a housing project mooted by the Kerala Government for the benefit of the homeless.
The issue relates to the project for the construction of 140 housing units in Wadakkanchery in Thrissur district. As per the application filed by the CEO in the Kerala High Court in 2019, the 'Red Crescent Authority' of the United Arab Emirates offered to sponsor the project and accordingly, a Memorandum of Understanding was entered into that year itself. As per the MoU, the sponsor was to execute the project through independent contractors.
No Enrollment Fee Above Rs 750 Rs : Kerala High Court To Bar Council In Interim Order
Case Title: Akshai M. Sivan and Others V Bar Council Of Kerala And Another
The Kerala High Court on Wednesday passed an interim order holding that the Bar Council is not entitled to collect an enrolment fee of more than Rs.750/- prescribed under law, while enrolling prospective advocates.
Justice Shaji P Chaly passed the said order in view of the decision of the High Court in Koshy T. v. Bar Council of Kerala, Ernakulam and Another (2017 KHC 553) which had held that without being conferred any specific power under the statue, the Bar Council is not entitled to collect fee other than a fee of Rs.750/- prescribed under law.
Kantara Plagiarism Row: Kerala High Court Stays FIR Against Actor Prithviraj Sukumaran
Case Title: Prithviraj Sukumaran v. State of Kerala
The Kerala High Court on Thursday stayed the FIR filed against Actor Prithviraj Sukumaran by Mathrubhumi Printing and Publishing Co. Ltd in connection with the alleged copyright infringement of the song "Varaharoopam" from Kannada movie “Kantara”. The court observed that as a mere distributor of the film in Kerala, the actor was “unnecessarily being dragged into” and that initiating copyright infringement proceedings against him was “stretching it too far”.
A single bench of Justice Bechu Kurian Thomas was hearing a petition filed by the actor for quashing an FIR registered against him at the Kozhikode Town Police Station alleging that the song "Varaharoopam" from the movie “Kantara” has been plagiarised from the song "Navarasam”. The FIR was lodged on a private complaint filed by Mathrubhumi Printing and Publishing Co. Ltd against the actor as director of the company 'Pithviraj Productions Private Limited', which is a distributor of the film in the state of Kerala.
The court while granting a stay on the proceedings against the actor for a period of 7 days said:
“Prima facie, I am satisfied that petitioner as a distributor of a movie cannot be mulcted with infringement of a copyright merely for distributing a movie in one of the states in the country.”
Kerala High Court Stays Vigilance Court's Order On Complaint Against Former CIAL MD V J Kurian
Case Title: V J Kurian V State of Kerala
The Kerala High Court on Wednesday stayed the order of the Enquiry Commissioner and Special Judge (Vigilance), Muvattupuzha, that had ordered for a 'quick verification' on a complaint filed against V J Kurian, the former Managing Director of Cochin International Airport Limited on charges of corruption.
The allegation against the former MD is that he abused his position as Managing Director of CIAL by allotting 1,20,000 CIAL shares under the Employees Stock Ownership Plan (ESOP) to a non-employee.
Justice Kauser Edappagath, while noting that as many as 7 complaints were already filed before the Director of Vigilance and Anti-corruption Bureau based on similar allegations by different persons, observed that: “In all those complaints, preliminary enquiry was conducted and it was found that no offence was committed by the petitioner. A copy of the quick verification report is made available to me. There is finding in the quick verification report that CIAL is not considered as a public sector unit. Relying on the said finding, the learned Senior Counsel for the petitioner submitted that the petitioner would not come within the definition of public servant as defined in the PC Act.”
KIIFB Was Given No-Objection Letter Under FEMA To Issue Masala Bonds : RBI Informs Kerala High Court
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement
The Reserve Bank of India has informed the Kerala High Court that it had issued "no objection" to the Kerala Infrastructure Investment Fund Board (KIIFB) under the Foreign Exchange Management Act (FEMA) for raising funds by issuing rupee-denominated bonds (masala bonds) abroad.
The RBI stated this in an affidavit filed in response to a petition filed by KIIFB challenging the summonses issued by the Enforcement Directorate to its officers over alleged FEMA violations in the issuance of masala bonds in 2019. Former Finance Minister of Kerala Dr.Thomas Issac has also filed a separate petition challenging the ED summons issued to him in relation to the masala bonds issue.
Case Title: Suo Motu v. K.M. Shajahan
The Kerala High Court has directed K.M. Shajahan, the then private secretary of the former Chief Minister of Kerala V.S. Achuthanandan, to appear in person before the Court in the suo motu contempt proceedings that have been initiated against him for making serious allegations against High Court judges in a YouTube video.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar directed the issuance of an urgent notice to Shajahan, asking him to appear before the Court on March 13, 2023.