Kerala High Court Weekly Round-Up: January 1 - January 7, 2024

Judgments/Orders this Week

Ad Hoc Service Cannot Be Counted For Financial Upgradation Under Career Progression Schemes: Kerala High Court

Case Title: Union of India & Ors. v. P.K. Santhosh Kumar

Citation: 2024 LiveLaw (Ker) 1

The Kerala High Court held that an employee without the requisite qualifications for Bosun (Certified) cannot claim promotion to the said post, and that ad hoc service rendered by such employee shall not qualify for fiancial upgradations under the Assured Career Progression ('ACP'), and the Modified Assured Career Progression ('MACP') Schemes.

"...we specifically note that the ACP Scheme itself stipulates that the employee must fulfil normal promotional norms. In such circumstances, without fulfilling the educational qualifications prescribed for the post of Bosun (Certified), the applicant is not entitled to claim promotion to the post of Bosun (certified)," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed.

Can't Reject Advocates' Notary Applications Summarily Sans Giving Valid Reasons As It Would Cast Stigma On Their Credentials: Kerala HC

Case Title: P C Najeeb v State of Kerala

Citation: 2024 LiveLaw (Ker) 2

The Kerala High Court has made it clear that notary applications of advocates cannot be summarily rejected under Rule 8(1)(c) of the Notaries Rules, 1956 without giving germane and valid reasons.

Justice Devan Ramachandran held that notary applications cannot be rejected summarily stating that the number of applicants was higher than the number of vacancies.

“Even when the Government has the right to reject an application under Rule 8(1)(c), it has to be done for germane and legal reasons. The factum of the number of applicants being much higher than the vacancies, cannot be the sole reason to summarily reject it, except if it is established that there are others, who are found to be more eligible in the process. (See for support – Abdul Kareem M.T.P. v. State of Kerala [2023 (1) KHC 666]).”

Kerala High Court Explains Inter Se Exchange And Carry Forward Of Reservation For Persons With Disabilities

Case Title: George Mathew v. State of Kerala

Citation: 2024 LiveLaw Ker (3)

The Kerala High Court clarified the position on inter se exchange regarding vacancies in quota reserved for persons with disabilities.

The single judge bench reiterated that if any vacancy reserved for a particular category of benchmark disability cannot be filled due to the unavailability of a suitable candidate with that specific benchmark disability or for any other valid reason, such a vacancy must be carried forward as a 'backlog reserved vacancy' to the subsequent recruitment year.

Justice Raja Vijayaraghavan added that the 'backlog reserved vacancy' should be treated as reserved for the category of Disability as it was originally reserved in the initial year of recruitment. However, if a suitable candidate with that benchmark disability is still unavailable in the subsequent year, the vacancy may be filled through interchange among the categories of benchmark disabilities designated for reservation.

'Foetus Fully Developed': Kerala HC Declines Plea To Terminate 34 Weeks Pregnancy Of 12-Yr-Old In Incestual Relationship With Minor Brother

Case title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 4

The Kerala High Court has refused permission to medically terminate the pregnancy of a 12-year-old minor girl who was allegedly in an incestual relationship with her minor brother. It held that medical termination of pregnancy was not an option as the foetus had already reached 34 weeks of gestation and was now fully developed.

Justice Devan Ramachandran has directed the minor girl to be in the custody and care of the petitioners/parents. The Court has also directed the competent authorities and parents to ensure that the brother against whom allegations were made was not allowed anywhere near the girl.

Govt Has Right To Decide Applicability Of Rules For Promotion In Its Dept; Courts Cannot Exercise Judicial Review: Kerala High Court

Case Title: Ranjith Kumar K.V. & Ors. v. State of Kerala & Ors.

Citation: 2024 LiveLaw (Ker) 5

The Kerala High Court upheld the decision taken by the State Government in filling the vacancies to the post of Overseer/Draftsman (Mechanical Grade-II) as per the unamended Special Rules applicable in the Water Resources Department ('Special Rules'), by underscoring the right of the Government in deciding the applicable rules governing promotion.

"...no employee has a vested right for consideration for promotion. The right of employees for promotion is based on extant rule as on the date of consideration for promotion. The Government has every right to take a decision as to the applicability of the rule which would govern the promotion. If the Government takes a conscious decision that the vacancies which arose prior to the amended rules will have to be filled in accordance with the unamended rules, the Court cannot sit on judicial review to overturn the wisdom of the Government," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed in this regard.

Subjecting Wife To Sexual Perversions Against Her Will Amounts To Physical And Mental Cruelty: Kerala High Court Grants Divorce

Case title: X v Y

Citation: 2024 LiveLaw (Ker) 6

The Kerala High Court has made it clear that subjecting a wife to sexual perversions against her will and consent would amount to physical and mental cruelty. It also clarified that perceptions of people vary on sexual perversion and if consenting adults engage in sexual acts out of their free will and consent, it would be their choice and the Courts would not intervene.

The Division Bench comprising Justice Amit Rawal and Justice C S Sudha observed thus:

“When two consenting adults engage in coitus in the privacy of their bedroom, it is their choice as to how and in what manner they should act. But if one of the party objects to the conduct or acts of the other party on the ground that it is against normal course of human conduct or normal sexual activity, and still he/she is compelled to do the same, then it can only be termed as cruelty both physical and mental. If the conduct and character of a party causes misery and agony to the other spouse, the said conduct would certainly be an act of cruelty to the spouse justifying the grant of divorce. Subjecting the wife to sexual perversions against her will and consent is certainly an act of mental as well as physical cruelty.”

S.12 Kerala Rent Control Act | Tenant Can't Contest Eviction Application Unless Admitted Arrears Of Rent Are Deposited: High Court

Case Title: Thazheveettil Naushan and ors. v. Elizabeth Regive

Citation: 2024 LiveLaw Ker (7)

The Kerala High Court has clarified that a tenant cannot contest an eviction application filed by the landlord under Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 unless the admitted arrears of rent are cleared.

A two-judge bench of Justice PB Suresh Kumar and Justice Johnson John said the tenant has to pay or deposit with the Rent Control Court or the appellate authority, as the case may be, all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit.

Employee Opting Promotion Under Diploma Quota Ineligible For Further Promotion Under Degree Qualification Quota: Kerala High Court

Case Title: Sajithabai & Ors. v. Kerala Water Authority & Ors. and connected matter

Citation: 2024 LiveLaw (Ker) 8

The Kerala High Court has laid down that an employee who had chosen to be promoted under the Diploma qualification Quota would be ineligible for further promotion under the Degree Quota.

Justice Raja Vijayaraghavan V. was thus of the considered opinion that the inclusion of such persons in the Seniority List would be illegal.

"Respondents 1 to 4 earned their Engineering Degrees while working as Draftsmen. Therefore, they could invoke the Note to Rule 2 of Ext.P4 Special Rules, seeking direct recruitment as Assistant Engineers in the 6% quota reserved for them or promotion under the Diploma quota. However, for obvious reasons, they chose promotion under the Diploma quota and are thus ineligible for further promotion to Assistant Executive Engineer under the Degree quota, as per the governing rules," the Court observed.

Receipt Of Rent By Landlord After Receipt Of Quit Notice By Tenant Does Not Amount To Waiver Of Quit Notice: Kerala High Court

Case Title: Sameerali v. Muhammed

Citation: 2024 LiveLaw Ker (9)

The Kerala High Court clarified that “mere receipt of rent by the landlord, after receipt of quit notice by the tenant, would not be tantamount to waiver of the quit notice, contemplated under Section 113 of the Transfer of Property Act.”

Section 113 of the Transfer of Property Act says a quit notice is waived with the tenant's consent, by any act of the landlord showing an intention to treat the lease as subsisting.

As such, Justice Badharudeen clarified that “in view of the settled law, the status of the defendant herein is that of a tenant at sufferance…(and) the quit notice would not waive, and the status of the tenant is a `tenant at sufferance' and not beyond that”.

Therefore, the court stated that the defendant was bound to vacate the building. Additionally, the court held that “mere receipt of rent by the landlord, after receipt of quit notice by the tenant, would not be tantamount to waiver of the quit notice, contemplated under Section 113 of the T.P Act”.

Redeployment To Special Squad Doesn't Take Away Abkari Officer's Authority But He Must Act Within Bounds Of Duties Assigned To Squad: Kerala HC

Case title: Gangadharan v State of Kerala

Citation: 2024 LiveLaw (Ker) 10

The Kerala High Court has made it clear that an Abkari Officer already appointed under the Abkari Act will not lose his authority to act as an Abkari Officer upon redeployment to a Special Squad.

Justice Sophy Thomas however added that upon redeployment, the officer is expected to act within the bounds defined for the squad.

The Special Squad in this case was constituted to prevent and detect offences under the Abkari Act and the NDPS Act which were rampantly affecting the younger generations in the society.

“When an Abkari Officer already notified under Section 4 of the Abkari Act as per SRO 234/67 is redeployed to a Special Squad, he need not be again notified as an Abkari Officer to perform the duties and functions as a member of the Special Squad, because by such redeployment, he will not lose his authority as an Abkari Officer. But when he is redeployed to the Special Squad, he has to act within the parameters of the duties and functions, assigned to the Squad, and he cannot cross the borders.”

Appellate Court May Reject, Not Dismiss An Appeal For Non-Payment Of Court Fee: Kerala High Court

Case Title: Baby v. Chandramathy

Citation: 2024 LiveLaw Ker (11)

The Kerala High Court has held that an appellate court may only reject and not dismiss an appeal for non-payment of court fee by the party.

A single judge bench of Justice Badharudeen was dealing with a second appeal, filed as a consequence of first appellate court's order dismissing the appeal as “balance court fee not paid". The Court said,

"The proper procedure to strike down an appeal due to failure on the part of the appellant to pay balance court fee is rejection of the appeal and the said rejection of appeal is decree, as defined under Section 2(2) of CPC."

Assessee Can't Indefinitely Seek Time In Response To SCN: Kerala High Court

Case Title: Shaju Pachelil Pathrose Versus Additional/Joint/Deputy/Assistant Commissioner Of Income Tax

Citation: 2024 LiveLaw (Ker) 12

The Kerala High Court has held that the assessee cannot indefinitely seek time in response to a show cause notice.

The bench of Justice Dinesh Kumar Singh has observed that petitioners cannot go on asking for a time one after another in response to the show cause notice issued one after another. There is no violation of the principles of natural justice.

Conviction U/S 138 NI Act Will Not Sustain If Civil Court Finds Dishonoured Cheque Not Supported By Valid Consideration: Kerala High Court

Case Title: Mathew Kunju Mathew v. K.V. Kuriakose & Anr. and connected matters

Citation: 2024 LiveLaw (Ker) 13

The Kerala High Court held that when a competent civil court finds that a dishonoured cheque, which was the subject matter for initiation of criminal proceedings under Section 138 of the Negotiable Instruments Act ('NI Act') was not supported by valid consideration, the conviction and sentence of the criminal court for the offence would not legally sustain.

"The presumption under Sections 118 ('Presumptions as to negotiable instruments') and 139 ('Presumption in favour of holder') of the NI Act is of no avail, when the cheques are proved to be not issued towards discharge of any legally enforceable debt," Justice Sophy Thomas observed.

No Vested Right Over Application Seeking NOC Granting Lease For Mining Minerals, Must Be Considered Based On Existing Rules: Kerala High Court

Case title: A H Sheriff v State of Kerala

Citation: 2024 LiveLaw (Ker) 14

The Kerala High Court stated that persons have no vested right to seek 'No Objection Certificate' (NOC) for granting of lease for mining minerals. It held that in the absence of vested rights, the application seeking NOC had to be considered based on the existing rules.

In this case, the application for NOC was filed in 2019 and it was rejected after a delay of four years by relying upon 2021 guidelines issued by the government. The Court held that even though the application was pending and there was a delay, it could not grant NOC without considering the guidelines in the absence of any express provisions.

By relying upon the Apex Court decisions in State of Tamil Nadu v. M/s. Hind Stone and Others (1981) and State of Rajasthan and Others v. Sharwan Kumar Kumawat (2023), Justice Murali Purushothaman dismissed the plea.

Person Who Did Not Affix Signature To Compromise But Subsequently Acts In Terms Of Same Is Bound By Compromise Decree: Kerala High Court

Case Title: Ashiya Ummal v. S.N. Sathy & Ors.

Citation: 2024 LiveLaw (Ker) 15

The Kerala High Court laid down that a person who did not sign a compromise which led to passing of a compromise decree, but subsequently acted upon the same, could not thereafter avoid the decree merely on the ground that he/she had not put his/her signature on it.

"In law, nobody is allowed to approbate and reprobate. To put it differently, a person, who enjoys the benefit of a compromise, he did not sign, after filing an affidavit acting upon the same and obtained the money in terms of the compromise, cannot deviate from the said compromise on the ground that he or she did not sign the same after acting upon the same," the Single Judge Bench of Justice A. Badharudeen observed.

KAAPA | Subsequent Detention Can't Exceed 6 Months If 'First Detention' Order Passed Prior To 2014 Amendment: High Court

Case Title: Prabhulla P v. State of Kerala

Citation: 2024 LiveLaw Ker (16)

The Kerala High Court has delivered a significant interpretation surrounding preventive detention under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 and the 2014 amendment which expanded the maximum period of detention.

Section 12, prior to the amendment stipulated the maximum period of detention as 6 months. With the 2014 Amendment, the 'first detention' can last a maximum period of 6 months but the 'subsequent detention' can be of upto one year.

A division bench of Justices Muhammed Mustaque and Shoba Annamma Eapen has now clarified that if a preventive detention order was passed prior to the 2014 Amendment, such an order will not constitute 'first detention'. In other words, detention order passed prior to 31.12.2014, cannot be taken into account for passing a subsequent detention order for a maximum period of one year.

Essential For Muslim Father To Attend Daughter's Wedding: Kerala High Court Grants 4 Days Emergency Leave To Murder Convict

Case title: XXX v State of Kerala

Citation: 2023 LiveLaw (Ker) 17

The Kerala High Court granted emergency leave to a murder convict for attending his daughter's wedding. It also stated that the parties being Muslim, it was essential for the father to attend the daughter's wedding.

While granting emergency leave, Justice Bechu Kurian Thomas observed that on earlier occasions, when the petitioner's father was given emergency leave or ordinary leave, he had never overstayed and instead returned without any default.

[Section 498A IPC] Minor Quarrels Between Spouses Due To Difference Of Opinion Does Not Establish Offence Of Cruelty: Kerala High Court

Case title: Sreekumar v State of Kerala

Citation: 2024 LiveLaw (Ker) 18

The Kerala High Court ordered the acquittal of a husband who was accused of causing the suicidal death of his wife since the prosecution was unable to prove that suicide was committed due to cruelty or harassment.

The Court acquitted the husband by giving him the benefit of reasonable doubt and made a significant observation that every type of harassment or cruelty would not establish an offence of cruelty under Section 498A of IPC.

While setting aside the conviction, Justice Johnson John stated that minor quarrels between spouses due to differences of opinion or sporadic instances of ill-treatment would not establish an offence of cruelty under Section 498A IPC.

Kerala High Court Calls For Formulation Of Schemes For Psychiatric Treatment Of POCSO Offenders, Sex Therapy For Victims

Case Title: XX v. State of Kerala & Ors.

Citation: 2024 LiveLaw (Ker) 19

The Kerala High Court has issued a slew of directions to the State authorities regarding the handling of minor victims of sexual abuse, the provision of treatment including psycho therapy for prisoners accused of committing offences under the POCSO Act, and sex therapy for the victims/survivors of sexual assault.

The Single Judge Bench of Justice Gopinath P. issued the directions taking note of the report by the Project Co-Ordinator of the Victim Rights Centre (VRC) Advocate A. Parvathi Menon, whose intervention had been sought by the Court in a bail plea by a 19 year old alleged to have sexually abused his minor sister.

[Minor Mineral Rules] Traditional Pottery Artisans Don't Need NOC For Extracting Ordinary Clay Upto 50 Tonnes In A Year: Kerala High Court

Case title: Kaliman Thozhilali Kshema Vyavasaya Sahakarana Sangam Ltd. v District Geologist

Citation: 2024 LiveLaw (Ker) 20

The Kerala High Court has made it clear that traditional artisans doing clay and pottery works cannot be insisted upon to produce a No Objection Certificate (NOC) from the Revenue Divisional Officer (RDO) for extraction of ordinary clay up to 50 tonnes in a calendar year.

On perusing Rule 106 (5) of the Kerala Minor Mineral Concession Rules 2015, Justice Murali Purushothaman observed that traditional artisans can be granted special transit passes for extraction of ordinary clay up to 50 tonnes on the production of their identity cards.

Other significant developments this Week

Plea In Kerala High Court Seeks Implementation Of Revised Health Benefits Package Under Ayushman Bharat Yojana

Case title: Kerala Private Hospitals Association Vs Union Of India

Case number: WP(C) 40197/ 2023

Kerala's Private Hospital Association has moved the High Court seeking implementation of the latest National Health Benefit Package (HBP) 2.2, which has enhanced the rates of some health packages under Central government's flagship Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (AB-PMJAY).

The plea states HBP 2.2 would provide better healthcare facilities to financially backward patients and most of the states in India have already implemented yet, Kerala government has not taken any steps in this regard.

Justice Devan Ramachandran has sought instructions from both the Centre as well as the State government, the National Health Authority (NHA) and the State Health Agency (SHA).

Sabarimala Crowd Management: Kerala High Court Directs Devaswom Board To Provide Drinking Water, Refreshments To Stranded Pilgrims

Case title: Suo Moto v State of Kerala

Case number: SSCR Nos.29, 36, 41 and 42 of 2023

The Kerala High Court directed the Travancore Devaswom Board to provide drinking water and light refreshments to pilgrims stranded in Sabarimala due to the rush amid Mandala-Makaravilakku festival season.

The Division Bench comprising Justice Anil K. Narendran and Justice G. Girish also directed the Travancore Devaswom Board to deploy sufficient number of volunteers, especially during night hours to help the stranded pilgrims.

Kerala Govt Responds To SMA Patient's Plea Against Exorbitant Prices Of Life-Saving Drug, Says Medicine Free For Children Below 8 Yrs

Case Title: Seba P.A. v. Union of India & Ors.

Case Number: WP(C) 43275 of 2023

The Kerala High Court appreciated the initiatives taken by the State government in supporting minor children suffering from Spinal Muscular Atrophy (SMA) by providing medicines free of cost.

Justice Devan Ramachandran was hearing a plea submitted by a 24-year-old suffering from Spinal Muscular Atrophy (SMA), against the overpricing of the life-saving medicine, Risdiplam.

Taking note of the submissions of Government Pleader Vidya Kuriakose that minor children are provided with medicines free of cost, the Court stated thus:

“As per the policy of the government of Kerala, the drugs for Type II -Spinal Muscular Atrophy (SMA) is being made available to needy children below 8 years free of cost. There is also proposal to enhance the age of beneficiaries to 18 years…..It certainly is gratifying that the state government has taken initiative to support patients suffering from SMA as stated above. This is a welcome step.”

All India Tourist Permit Is A Contract Carriage Permit: Centre Tells Kerala High Court

Case title: Sarath G. Nair V State Of Kerala & Connected matters

Case numbers: WP(C) 19537/ 2023 & Connected matters

The Union Government told the Kerala High Court that the permit issued under the All India Tourist Vehicles (Permit) Rules 2023 is a contract carriage permit. It was submitted that for the promotion of tourism, the Central Government shall issue tourist buses such permits for operating in the whole of India.

“In exercise of above powers the Central Government has formulated the rules called All India Tourist Vehicles (Permit Rules), 2023. Further, the permit granted to tourist vehicles under the Rules is a contract carriage permit. Hence, the provisions…..are neither inconsistent nor contrary or ultra vires to the definition of contract carriage or any other provisions under the Motor Vehicles Act, 1988. There is no repugnancy between any of the Rules and the Act as alleged by the petitioner (KSRTC).” ,stated the affidavit filed by Sushil Kumar Geeva, Under Secretary in the Ministry of Road Transport and Highways. Section 88(9) of the Motor Vehicles Act 1988 empower the Centre to make these Rules, the affidavit added.

Restriction On Deputing Judicial Officers To Administrative Posts In Public Interest, Prevents Case Backlog: Registrar To Kerala High Court

Case title: The Kerala Administrative Tribunal Advocates' Association v State of Kerala

Case number: WP(C) 43000/2023

Responding to the plea moved by Kerala Administrative Tribunal (KAT) Advocates' Association seeking appointment of judicial officers as Registrar in the Tribunal, the Registrar General of Kerala High Court and the Registrar (District Judiciary) said the decision to restrict deputation of judicial officers in administrative posts was taken by a Full Bench of the High Court in public interest.

Such a policy decision was taken to prevent the backlog of cases in the district judiciary, they said, adding that judicial officers should be utilized to perform judicial functions except when there is unavoidable administrative exigency.

CMDRF Misappropriation Case: Plea Before Kerala HC Challenges Lok Ayukta & Upa Lok Ayukta's Rejection Of Complaints Alleging Misuse Of Funds

Case title: R.S. Sasikumar v State of Kerala

Case number: WP(C) 497/2024

A plea has been moved before the Kerala High Court by petitioner, R.S. Sasikumar challenging the decisions taken by the Lok Ayukta and Upa Lok Ayuktas in rejecting his complaint against the Chief Minister and other Ministers alleging misuse of the funds in the Chief Minister Disaster Relief Fund (CMDRF).

Initially, in 2018 a complaint was filed by Sasikumar alleging abuse of power by the Ministers and for taking decisions based on nepotism and political considerations. It was alleged that the Ministers had failed to dispense their constitutional obligations and their decisions were a result of corruption, abuse of power and breach of public trust.

The plea challenges the decision taken by the Lok Ayukta in rejecting the complaint even though they found that some of the decisions were taken arbitrarily. It was also alleged that the respondents lacked integrity in discharging their duties as public servants. The plea questions the finding of the Lok Ayukta that there was no evidence of corruption, favouritism, nepotism or lack of integrity.

Kerala Woman Allegedly Detained By Police For Wearing Black Attire To Nava Kerala Yatra Moves High Court

Case title: Archana L v State of Kerala

Case number: WP(C) No. 43558/ 2023

A plea has been filed by a woman and her 71-year-old mother-in-law before the Kerala High Court seeking compensation from the State government for alleged illegal detention by the Police for wearing a black churidar during the Nava Kerala Yatra in Kollam district on December 18, 2023.

The woman alleged that she was taken into police custody and was detained for more than 7 hours since she wore black attire. She submitted in her plea that her only intention was to see Chief Minister Pinarayi Vijayan, whom she had otherwise seen only on Television and Media.

Kerala High Court Grants More Time To Ex-Govt Pleader To Surrender In Sexual Assault Case

Case Name: PG Manu v. State of Kerala

Case Number: Bail Appl No. 10796/2023

The Kerala High Court extended the time granted to former Senior Government Pleader P.G. Manu to surrender in an alleged sexual assault case involving a female client.

A single judge bench of Justice Gopinath P granted him 10 more days to surrender to the Police.