Nominal Index [Citation 2022 LiveLaw (Ker) 488-500]Jeenamol Varghese v. State of Kerala & Anr. 2022 LiveLaw(Ker) 488Kasim P.H. v. Union of India & Ors., and other connected matters 2022 LiveLaw (Ker) 489 S. Yadava v. Kerala State Co-Operative Bank & Ors. 2022 LiveLaw (Ker) 490Marakkar & Anr. v. State of Kerala & Anr and connected cases 2022 LiveLaw (Ker) 491Bhanumathi...
Nominal Index [Citation 2022 LiveLaw (Ker) 488-500]
Jeenamol Varghese v. State of Kerala & Anr. 2022 LiveLaw(Ker) 488
Kasim P.H. v. Union of India & Ors., and other connected matters 2022 LiveLaw (Ker) 489
S. Yadava v. Kerala State Co-Operative Bank & Ors. 2022 LiveLaw (Ker) 490
Marakkar & Anr. v. State of Kerala & Anr and connected cases 2022 LiveLaw (Ker) 491
Bhanumathi & Anr. v. K. Abdurahiman Haji & Ors. 2022 LiveLaw(Ker) 492
Aisha v. Xavier & Ors. 2022 LiveLaw (Ker) 493
M/S SVS Marketing Sanitary Pvt. Ltd. v. M/S Bathtouch Metals Pvt. Ltd. 2022 LiveLaw (Ker) 494
Boban P.V. v. State of Kerala 2022 LiveLaw(Ker) 495
Fasalu Rahman v. Union of India & Ors. 2022 LiveLaw(Ker) 496
Sanil James v. State of Kerala & Anr. 2022 LiveLaw(Ker) 497
XXX v. State of Kerala & Ors. 2022 LiveLaw (Ker) 498
Suo Motu v. State of Kerala & Ors. 2022 LiveLaw (Ker) 499
Abbas R.V. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 500
Judgments/Orders This Week
Case Title: G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors.
Citation: 2022 LiveLaw(Ker) 483
Observing that scope of granting ad interim injunction is limited, the Kerala High Court has held that Courts must be vigil and cautious while granting the relief ex parte without notice to the counter petitioner or defendant.
Justice P. Somarajan further added that the scope of relief to grant interim injunction should be pertaining to the matters incorporated under Section 135(2) of the Trade Marks Act, adding that the provision cannot have any exhaustive application.
Case Title: Jeenamol Varghese v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 488
The Kerala High Court recently directed all the Registrars under the Municipality and Grama Panchayat to conduct an enquiry adhering to provisions under the Registrations of Birth and Deaths Act, 1969, while considering applications seeking correction of Birth Certificates, and not to reject such applications summarily.
Justice Amit Rawal made the direction upon noting instances where the Registrars, without adhering to the provisions of Section 15 and Rule 11 and other rules, are rejecting applications for the correction of birth records.
Case Title: Kasim P.H. v. Union of India & Ors., and other connected matters
Citation: 2022 LiveLaw (Ker) 489
The Kerala High Court on Thursday held that the transfer of consumers from one LPG distributor to another by Oil Marketing Corporations was in pursuance of the policy adopted in this regard, and the consumers had no right to challenge the same and contend that they are entitled to continue with the existing distributors.
The Division Bench comprising of Chief Justice S. Manikumar and Justice Shaji P. Chaly, while holding so, observed, "...the guidelines and the agreement executed by and between the Oil Marketing Corporations and the distributors would show that the consumers are under the direct supervision and control of the Oil Marketing Corporations and the consumer cannot turn around and say that they are entitled to continue with the existing distributors".
It added that, "...such a course of action adopted by the Government and the Oil Marketing Corporations would only enure to the benefit of the consumers, and by no stretch of imagination, it can be visualised and presumed that the shifting of consumer from one distributor to another, would, in any manner, prejudice the consumer".
Case Title: S. Yadava v. Kerala State Co-Operative Bank & Ors.
Citation: 2022 LiveLaw (Ker) 490
The Kerala High Court on Friday held that under Rule 198 (7) of the Kerala Co-operative Societies Rules, the employer is entitled to continue disciplinary proceedings after retirement of employee, as well as withhold the retiral benefits until the culmination of such proceedings.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar, and Justice Mohammed Nias C.P., while holding so, reasoned that, 'If the argument that the proceedings cannot continue after the retirement is accepted, any delinquent employee can commit any fraud, misappropriation, grave dereliction of duty etc., on the eve of his retirement and can plead that he is beyond the reach of the employer, which would result in such delinquent employee escaping without punishment. Law cannot allow such a course and in all those cases larger public interest must be the guiding factor to decide the case".
Madhu Lynching Case| Kerala High Court Upholds Special Court Order Cancelling Bail To 11 Accused
Case Title: Marakkar & Anr. v. State of Kerala & Anr and connected cases
Citation: 2022 LiveLaw (Ker) 491
The Kerala High Court on Monday dismissed the appeals challenging a Special Court's order cancelling the bail granted to 11 accused persons in case of lynching of a tribal youth in February 2018.
Justice Kauser Edappagath confirmed the order cancelling bail of 11 of the accused persons by the Mannarkkad Special Court under SC/ST (Prevention of Atrocities) Act. The bail granted to one of the accused was however upheld.
Case Title: Bhanumathi & Anr. v. K. Abdurahiman Haji & Ors.
Citation: 2022 LiveLaw(Ker) 492
The Kerala High Court on Wednesday observed that although the term 'dwelling house' is not defined in the Partition Act, 1893 however, by way of judicial interpretation, it has been held to include adjacent buildings, gardens, courtyards, orchards, etc., which are necessary for the convenient occupation of the dwelling house.
Justice C. S. Dias further observed that the pre-emptive right of family members under Section 4 of the Act to buy out undivided share of the stranger co-owner can be invoked in such cases, even at the stage of execution, until the decree is fully satisfied.
Case Title: Aisha v. Xavier & Ors.
Citation: 2022 LiveLaw (Ker) 493
The Kerala High Court on Thursday held that when the owner of a vehicle is satisfied that the driver has a license and is driving competently, there would be no breach of Section 149(2)(a)(ii) of the Motor Vehicles Act, and hence the Insurance Company would not be absolved from their liability to compensate the victim.
Justice Sophy Thomas, while holding so, observed, "Ultimately, if it is found that the license was fake, the Insurance Company will continue to remain liable, unless they prove that the owner-insured was aware or had noticed that the license was fake and still permitted that person to drive. Even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured".
Case Title: M/S SVS Marketing Sanitary Pvt. Ltd. v. M/S Bathtouch Metals Pvt. Ltd.
Citation: 2022 LiveLaw (Ker) 494
The Kerala High Court on Thursday reiterated that where a plea of fraud is raised in a dispute, the civil aspect of fraud is arbitrable, unless the very arbitration agreement is found to have been vitiated by fraud.
As to the forum to decide upon the arbitrability of the agreement, Justice Satish Ninan reiterated that the Courts would be bound to refer the parties for adjudication unless it was evident that there was no valid arbitration agreement, nor an arbitrable dispute.
Case Title: Boban P.V. v. State of Kerala
Citation: 2022 LiveLaw(Ker) 495
The Kerala High Court on Monday granted bail to a headload worker booked under Section 153 A of Indian Penal Code and Section 120(o) of the Kerala Police Act for sharing indecent and scandalous Facebook posts on Muhammed Nabi.
Justice Viju Abraham, while allowing the bail application, directed the petitioner to execute a bond of Rs.50,000/- with two solvent sureties and to appear before the investigating officer every Saturday at 11AM until the final report is filed.
'Top Secret' Communication Sent To District Police Chief Leaked, Kerala HC Orders DGP To Probe
Case Title: Fasalu Rahman v. Union of India & Ors.
Citation: 2022 LiveLaw(Ker) 496
The Kerala High Court recently directed the State Police Chief to investigate how Fasalu Rahman, an accused in a gold smuggling case, obtained a 'Top Secret' communication sent by the DGP to the District Police Chief Malappuram.
The Division Bench of Justice Anil K Nareendran and Justice P.G. Ajithkumar, observed that State Police, which is the executing agency in preventive detentions under COFEPOSA Act, has to maintain absolute secrecy in executing the detention orders and thereby, directed a detailed enquiry into how the 'Top Secret' communication dated 04.06.2022 reached the hands of the petitioner.
Case Title: Sanil James v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 497
The Kerala High Court on Tuesday, while considering a Revision Petition observed that in an offence under Section 138 of the Negotiable Instruments Act, when the Court imposes sentence of imprisonment and fine, it has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of CrPC.
Justice A. Badharudeen observed:
...in an offence under Section 138 of the N.I Act when the court imposes imprisonment and fine, fine forms part of the sentence. In such cases, the court has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of Cr.P.C.
Case Title: XXX v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 498
The Kerala High Court on Thursday held that in the transfer petition moved by the victim in the actor assault case, that the petitioner could not make out a case for an order for transferring the case from the principal sessions court.
Justice Ziyad Rahman A. A., while so holding, fixed a time limit which is to expire on 31.01. 2023 for completion of the trial, and further directed that every endeavor ought to be made by all the parties concerned to complete the trial within the said period.
Case Title: XXX v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 498
The Kerala High Court on Thursday, while dismissing the petition filed by the survivor of the sexual assault to transfer the case from the Principal Sessions Court, Ernakulam, berated the media for creating an air of distrust brought about through the 'trial' conducted in their studios.
Justice Ziyad Rahman A.A., while observing that the petitioner had been a "victim of such wrong perceptions and aspersions created by the media", went on to observe, "Although criticism is the backbone of democracy and the media is expected to do that, in this case, it is seen transgressed the limits of fairness, reasonableness and rationality".
Case Title: Suo Motu v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 499
The Kerala High Court on Thursday appointed former Judge, Justice R. Bhaskaran, as an 'Observer' to oversee the proceedings for selection of 'Melsanthies' in Sabarimala Sree Dharma Sastha Temple and Malikappuram Temple, for the year 2022-23 (1198 ME).
A Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar made the direction after perusing the Sabarimala Special Commissioner Report regarding the procedure to be adopted in order to ensure fairness in the selection procedure.
Case Title: Abbas R.V. v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 500
The Kerala High Court on Friday declined to grant anticipatory bail to a person, who is also an accused in the Madhu lynching case, in an FIR alleging he trespassed into the house of victim's mother and threatened to murder her for "proceeding with" the trial pertaining to her son's death.
Upholding the order passed by the special court, Justice A. Badharudeen said Section 18 and 18-A of the SC/ST Act would apply to the case and therefore anticipatory bail cannot be granted.
Other Significant Developments
Case Title: Olorumemi Benjamin Baba Femi v. Union of India
The Kerala High Court on Thursday, pulled up the State Authorities for failing to implement its orders for setting up of temporary detention centres for foreign citizens, who do not possess travel documents, and has directed the Secretary to Social Justice Department and Additional Chief Secretary, Home and Vigilance Department to set up the temporary facility on a war footing basis.
Justice Ziyad Rahman A A in the order dated September 15 remarked that despite various orders passed by the Court, the government is not taking proper steps.
Case Title :Guruvayur Devaswom Managing Committee and Anr. vs. Bijesh Kumar M and Ors.
The Supreme Court on Monday issued notice in an appeal filed by Guruvayur Devaswom Managing Committee assailing the order of the High Court of Kerala where it was held that the Committee had no authority to donate money to the Chief Minister's Disaster Relief Fund and it amounts to violation of Guruvayoor Devaswom Act, 1978.
The bench of Chief Justice of India U. U. Lalit, Justice Ajay Rastogi and Justice S. Ravindra Bhat ordered status quo in the matter and stayed the operation of the judgment and order passed by the High Court of Kerala.
The Advocates practising at the High Court of Kerala boycott and abstain from Court work in protest against police atrocity in solidarity with Kollam Bar Association today. The Advocates are abstaining from Court work as the Government has not taken evident action against erring Police Officials in relation to the issue of police brutality against Advocate Jayakumar of Kollam Bar Association, says the notice issued by the Kerala High Court Advocates Association.
Lawyer Moves Kerala High Court Against Bharat Jodo Yatra Led By Congress MP Rahul Gandhi
Case Title: Adv. Vijayan K v. State of Kerala & Ors.
A Petition has been filed before the Kerala High Court against the Bharat Jodo Yatra led by Congress MP Rahul Gandhi, seeking direction to regulate the Yatra for causing traffic problems.
The petition filed by Advocate Vijayan K, sought for a direction to regulate the Yatra by permitting them to occupy half portion of the road and leaving the other half for the free movement of the vehicles and the public.
Kerala High Orders Status Quo In Renaming Kaloor-Kadavanthra Road
Case Title: Lawrence Alex & Ors. v. State of Kerala & Ors.
The Kerala High Court recently, issued an interim order directing that status quo ought to be maintained in the re-naming of the Kaloor-Kadavanthra Road for a period of one month.
Justice N. Nagaresh passed the above order while admitting the petition.
In the petition moved through M/S Basil Mathew, Ninan John, Sanjana Sara Varghese Annie, and Ajay Krishnan S., it was averred that the petitioners, who are residents of the area, were personally affected by the decision of the Kochi Municipal Corporation (2nd respondent) to change the name of the Kaloor-Kadavanthra Road, in violation of the provisions of the Kerala Municipality Act, 1994, and the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995.
Kerala HC Adjourns Plea Alleging Bharat Jodo Yatra Is Causing Traffic Snarls To Monday
Case Title: Adv. Vijayan K v. State of Kerala & Ors.
The Kerala High Court on Thursday adjourned to Monday a petition seeking a direction to regulate the Bharat Jodo Yatra led by Congress MP Rahul Gandhi and asked the petitioner to inform it whether there was any violation of the police instructions that were given regarding traffic norms to be followed during the Yatra.
The Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly heard the matter briefly on Friday. When the case was taken up by the Court, it instructed the petitioner to find out whether the police instructions that were given regarding traffic norms to be followed during the Bharat Jodo Yatra were violated and inform the Court regarding the same on September 26.
Four Cops Suspended For Assaulting Lawyer Inside Kollam Police Station, Kerala High Court Told
Case Title: Yeshwanth Shenoy v. Gopakumar & Ors.
The Kerala High Court on Thursday was informed that four police officials were placed under suspension on Wednesday for allegedly thrashing and handcuffing a lawyer inside a police station on September 5.
The submission was made during the hearing of a contempt petition filed against the action of the officials of Kollam police station. The Division Bench comprising Justice A.K. Jayasankar Nambiar and Justice Mohammed Nias C.P. issued notice and posted the matter for further hearing on a later date after it was informed about suspension of the policemen.
Case Title: St. Stephen's Malankara Catholic Chruch v. State of Kerala
The Kerala High Court, on Thursday, took a critical view of the flags and banners erected along the highways in the State as part of the "Bharat Jodo Yatra" led by Congress leader Rahul Gandhi.
The Court expressed dismay that the authorities have not removed the banners, boards and flags erected in violation of the earlier directions.
At the request of the Amicus Curiae Advocate Harish Vasudevan, the Court held an urgent hearing on the matter. The Amicus Curiae, in the report filed before the Court, submitted that a "particular political party", had illegally erected a large number of boards, banners, and flags in connection with the visit of a dignitary.
Case title: Kerala Chamber of Commerce and Industry v. State of Kerala and Malayalavedi v. State of Kerala
The Kerala High Court, on Friday, strongly condemned and initiated suo motu proceedings against the leaders of Popular Front of India (PFI), noting the illegal call for flash hartal in the State, which was earlier banned by the Court.
The PFI called for dawn-to-dusk hartal in the State today following the the arrest of its leaders by the NIA yesterady.
Division bench consisting of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. observed that stringent action must be taken against the violators of the Court order.
Case Title: St. Stephen's Malankara Catholic Chruch v. State of Kerala
The Kerala High Court, on Friday, pulled up the Government for its failure to implement the directions for removal of illegal flags and banners erected along the highways in the State by various political parties.
A bench of Justice Devan Ramachandran expressed his distress on the allegations that the High Court is aligning with certain political parties while passing orders. The bench observed in the order as follows :
'Accusing fingers are being pointed at the High Court that it acts with an agenda because some of the violations are not being dealt with as was done in the case of others. It is extremely unfortunate. When the Court has already passed orders, it is for the Government and its agencies to implement it continually in future, and it does not require this Court to intervene every time there is a violation.'
Case Title: T.G. Mohandas v. State of Kerala & Ors.
A Public Interest Litigation has been filed in Kerala High Court against the police's alleged inaction and failure in registering a case with regard to the "attempted criminal assault" on Governor Arif Mohammed Khan during a conference at Kannur University on December 28 in 2019.
The Petitioner, T.G. Mohandas, who is a retired engineer, advocate and a public worker has also been a former State Convenor of the Intellectual Cell of BJP. It has been stated in the plea that the Governor's speech at Kannur University during the conference was interrupted and he had been "overawed" by Prof. Irfan Habib, a prominent historian.
Case Title: In Re Bruno v. Union of India
The Kerala High Court on Friday continued its hearing on the stray dog menace in Kerala, and issued further directions in this regard.
The Court questioned what measures were taken to identify rabid dogs, based on the alarming figures it had noted in recent media reports which showed that there was 50% Test positivity. The Court asked the Additional Advocate General how many dogs had been identified as rabid. The Court further noted that rabies could be spread even by other animals such as rats and mongoose, and directed the Additional Advocate General to submit a report on the steps taken in that line.
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement
The Enforcement Directorate has filed the counter affidavit in relation to its probe against the Kerala Infrastructure Investment Fund Board (KIIFB), with respect to the latter's alleged violations of the Foreign Exchange Management Act (FEMA) by the issuance of "Masala Bonds" in 2019.
Apart from the KIIFB, Dr. Thomas Issac, who was the Finance Minister during the issuance of Masala Bonds by KIIFB, had also approached the High Court challenging the summons issued to him, contending that the agency was seeking to conduct a "fishing and roving" enquiry against him without revealing what the exact nature of violations are.
Case Title: R. Baji v. KSRTC
The Kerala High Court, on Friday, observed that Popular Front India and its officer bearers who called for a flash hartal in the state following the arrest of its leaders by the NIA, should be held responsible for the losses suffered by the KSRTC during the protest.
Justice Devan Ramachandran has directed the State Government to inform how it proposes to recover from the Popular Front of India and its office bearers the losses caused to the KSRTC on account of the attacks against the buses and the loss of trips during the flash hartal called by the PFI party.