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

Sali T. v Keezhmadu Service Co-operative Bank, 2024 LiveLaw (Ker) 397

Arshad v State of Kerala, 2024 LiveLaw (Ker) 398

Association of Clinical Microbiologists and Biochemists v Akhil James and Others, 2024 LiveLaw (Ker) 399

Satish Motilal Bidri v Union Of India, 2024 LiveLaw (Ker) 400

N S Gopakumar v The Oriental Insurance Company Ltd., 2024 LiveLaw (Ker) 401

O. Abdul Rahiman v State Of Kerala & Ors., 2024 LiveLaw (Ker) 402

Mohammed Mammunhi v State of Kerala and Others, 2024 LiveLaw (Ker) 403

Mansoor Ali v State of Kerala, 2024 LiveLaw (Ker) 404

Adithya Kiron v The Station House Officer and Others, 2024 LiveLaw (Ker) 405

P. R. Ramachandran V The State Chief Information Commissioner, 2024 LiveLaw (Ker) 406

Jomi v State of Kerala, 2024 LiveLaw (Ker) 407

C Kappan v State of Kerala & Other, 2024 LiveLaw (Ker) 408

Dr. Pramod John v State of Kerala, 2024 LiveLaw (Ker) 409

Thomas Baby v Jojo V. Varghese and Others, 2024 LiveLaw (Ker) 410

State of Kerala V Gireesh Kumar & Connected Matter, 2024 LiveLaw (Ker) 411

Eldho Varghese v Liya Jose, 2024 LiveLaw (Ker) 412

Jeffin Kuriakose v State of Kerala, 2024 LiveLaw (Ker) 413

PVR Tourist Home Versus CIT, 2024 LiveLaw (Ker) 414

The Meenachil Taluk Cooperative Employees Cooperative Society Limited Versus Commissioner Of Income Tax (Appeals), 2024 LiveLaw (Ker) 415

Raju Sreedharan Versus The Superintendent, Central Tax & Central Excise, 2024 LiveLaw (Ker) 416

Sandeep G V State of Kerala, 2024 LiveLaw (Ker) 417

Judgments/ Orders this Week

Kerala Co-Operative Societies Act | Impleadment Of Legal Representative In Execution Of Arbitral Award Is Not Hit By Limitation: Kerala High Court

Case Title: Sali T. v Keezhmadu Service Co-operative Bank

Citation: 2024 LiveLaw (Ker) 397

The Kerala High Court held that that non – non-impleadment of legal representatives after the death of the judgment-debtor does not abate the execution proceedings with respect to an arbitral award. The requirement in Code of Civil Procedure requiring the legal representative to be impleaded within the limitation period will not apply for execution of arbitration proceedings under Kerala Co-operative Societies Act.

[Kerala Protection Of River Banks & Regulation Of Removal Of Sand Act] Loading Stationary Vehicle With River Sand Constitutes 'Transport' U/S 23: High Court

Case Title: Arshad v State of Kerala

Citation: 2024 LiveLaw (Ker) 398

The Kerala High Court has held that the term 'transport' in Section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereafter, Sand Act) cannot be interpreted to mean that the vehicle must be in motion.

Justice Bechu Kurian Thomas stated that the term 'transports sand' would mean the removal of sand from the river bed to the lorry and from the lorry to any other place. The Court stated that even when a vehicle was loaded with river sand, it would constitute sand transport, regardless of whether the vehicle was in motion or not.

'Policy Decision': Kerala High Court Dismisses Appeal Against Removal Of Biochemistry And Microbiology Streams From Paramedical Courses

Case Name: Association of Clinical Microbiologists and Biochemists v Akhil James and Others

Citation: 2024 LiveLaw (Ker) 399

The Kerala High Court has dismissed an appeal filed by Association of Clinical Microbiologists and Biochemists against the removal of B.Sc. Medical Biochemistry and B.Sc. Medical Microbiology courses from the prospectus of professional degree courses and paramedical courses for the year 2018-19, saying that it is a policy decision of the Government.

The Court however added that there are some cases where the policy decisions can be subjected to judicial review but that can be done only on well-defined grounds. In this case, there is no such grounds. No legal right or fundamental right of the petitioners are violated, it held.

Properties Not Connected With 'Proceeds Of Crime' Cannot Be Subject To Attachment Under PMLA: Kerala High Court

Case Title: Satish Motilal Bidri v Union Of India

Citation: 2024 LiveLaw (Ker) 400

The Kerala High Court has held that properties subject to attachment under the PMLA must be properties acquired through proceeds of crime. It stated that provisions of PMLA cannot be unfairly and unreasonably used to attach properties that are unrelated to any criminal activity.

[Insurance Ombudsman Rules] Rule 17 Empowers Ombudsman To Grant Compensation But Gives No Power To Issue Directions Upon Insurer: Kerala HC

Case Title: N S Gopakumar v The Oriental Insurance Company Ltd.

Citation: 2024 LiveLaw (Ker) 401

The Kerala High Court held that an Insurance Ombudsman was empowered to pass an Award granting compensation to the complainant but not empowered to issue directions to the Insurer as per Rule 17 of the Insurance Ombudsman Rules, 2017.

"No Intent To Harm Reputation": Kerala High Court Quashes Defamation Case Against Editor & Publisher Of Madhyamam Newspaper

Case Title: O. Abdul Rahiman v State Of Kerala & Ors

Citation: 2024 LiveLaw (Ker) 402

The Kerala High Court has quashed proceedings initiated against the editor and publisher of Madhyamam newspaper under Section 499 of the IPC on finding that the alleged news item was published without intention or knowledge to harm the reputation of the complainant.

If Tehsildar Issues 'Patta' Under Kerala Land Assignment Rules, It Is Implied That All Land Assignment Dues Are Paid: High Court

Case Title: Mohammed Mammunhi v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 403

The Kerala High Court has held that the Kerala Land Assignment Rules (KLA Rules) lay down that patta will be issued by the Tehsildar only if LA dues are paid by the assignee. The Court thus held the cancellation of patta on the ground that the assignee did not pay LA dues as invalid. However, it refused to pass any orders in favour of the Appellant since he had not sought a relief for recovery of possession. As per proviso of Section 34 of the Specific Relief Act, the court shall not make a declaration of title when the plaintiff being able to seek a further relief does not do that.

Every Breach Of Contract Would Not Amount To Breach Of Trust Or Cheating To Initiate Criminal Proceedings: Kerala High Court

Case Title: Mansoor Ali v State of Kerala

Citation: 2024 LiveLaw (Ker) 404

The Kerala High Court has held that each and every breach of contract would not amount to breach of trust unless it is shown that there was an intent to cheat and defraud from the very inception.

'LGBT Persons Entitled To Privacy Like Other Heterosexual Persons': Kerala HC Grants Relief To Transwoman Forced Into Conversion Therapy

Case Title: Adithya Kiron v The Station House Officer and Others

Citation: 2024 LiveLaw (Ker) 405

The Kerala High Court has come to the rescue of Elida Rubielle, a transwoman who was allegedly forced to undergo conversion therapy. It noted that the 19-year-old had made a firm decision to live separately from her parents and said the choice and desire expressed by her needs to be respected.

The Habeas corpus petition was filed by her friend alleging that she was forced to undergo conversion therapy. She had come out as a transwoman. It was submitted that she was forced to undergo conversion therapy at Amrita Hospital to change her gender identity.

Registrar Of Co-Operative Societies Is 'Public Authority', Expected To Provide Information Not Exempted Under RTI Act: Kerala High Court

Case Title: P. R. Ramachandran V The State Chief Information Commissioner

Citation: 2024 LiveLaw (Ker) 406

The Kerala High Court has held that the Registrar of Co-operative Societies is a public authority under the Right To Information Act. It stated that Registrar, being a public authority could gather and disclose information obtained from the Co-operative Society under his administrative or supervisory control to the extent permitted by law.

Teachers Liable Under Juvenile Justice Act For Assaulting Children But Mere Corrective Measures To Enforce Discipline Not Punishable: Kerala HC

Case Title: Jomi v State of Kerala

Citation: 2024 LiveLaw (Ker) 407

The Kerala High Court has held that teachers cannot be prosecuted under the Juvenile Justice (Care and Protection of Children) Act, 2015 for using simple corrective measures for enforcing discipline in schools.

The Court further relied upon Rajan @ Raju, S/o Choyi v. The Sub Inspector of Police, Feroke Police Station and others (2019) wherein it was stated that nature of injury inflicted by teacher upon the student would determine as to whether he can be proceeded under penal provisions or not. The Court stated that acts of teacher cannot be condoned if they inflict injury on a child out unbridled fury, excitement or rage, inflicts injuries causing unreasonable physical injury or harm.

Kerala HC Dismisses Plea By MLA Mani Kappan Challenging Magistrate's Order Framing Charges Against Him For Alleged Criminal Breach Of Trust, Cheating

Case Title: Mani C Kappan v State of Kerala & Other

Citation: 2024 LiveLaw (Ker) 408

The Kerala High Court has dismissed the criminal revision petition filed by MLA Mani C Kappan against the order of a Special Judge framing charges against him for allegedly committing offences of cheating and criminal breach of trust. MLA Kappan currently represents the Pala constituency in Kerala.

Justice C S Dias quashed the Revision Petition filed by MLA Kappan on finding that the Special Court only has to form a prima facie opinion as to whether there were sufficient grounds to proceed against the accused. The Court stated that the Special Court was not expected to appreciate the evidence on record and to conclude whether there were sufficient materials to proceed against the accused.

Abandonment Of Senior Citizen Must Be Total & Complete Without Any Arrangement Of Care To Constitute An Offence: Kerala High Court

Case Title: Dr. Pramod John v State of Kerala

Citation: 2024 LiveLaw (Ker) 409

The Kerala High Court observed that to constitute an offence of 'abandonment of senior citizen', there should be total and complete abandonment without any arrangement of taking care of the person.

[Kerala Registration Act] Rubber Trees Are Immovable Property, Agreement To Tap Rubber Is A Compulsorily Registrable Document: High Court

Case Title: Thomas Baby v Jojo V. Varghese and Others

Citation: 2024 LiveLaw (Ker) 410

The Kerala High Court held that an agreement to tap rubber trees should be registered as per the Kerala Registration Act. The Court held that rubber trees are immovable properties and an agreement with the owner of the plantation to tap the rubber creates an interest in the immovable property. Therefore, the document is a compulsorily registrable one.

The Court rejected the trial court's finding that the agreement constituted only a license, not a lease and no interest was created over an immovable property. The trial court held that latex is the juice of a rubber tree and the agreement creates an interest on the movable property. The High Court however held that the agreement was to take yield from the yielding rubber trees and hence the interest is created on rubber trees. The Court held that simply because the yield is extracted in juice form, it cannot be considered to be a movable property.

The Court considered whether yielding rubber trees can be considered as 'standing timber' so as not to come within the ambit of 'immovable property. It held that they cannot be considered as standing timber as they continue to draw sustenance from the soil and they have not attained stoppage of vegetation and nourishment for further growth

Kerala High Court Acquits Death Row Convict After He Spends Over 10 Years In Jail, Grants Rs 5 Lakh Compensation

Case Title: State of Kerala V Gireesh Kumar & Connected Matter

Citation: 2024 LiveLaw (Ker) 411

The Kerala High Court has acquitted one Gireesh Kumar and overturned the death sentence imposed on him by the Sessions Court, after he spent over 10 years in jail. He had been convicted on charges of trespassing with intent to commit robbery, rape, and the murder of a 57-year-old woman in Kollam in 2013.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. was dealing with his appeal and the reference for confirmation of sentence by the Sessions court.

It found that a botched-up investigation was conducted by the police by adducing sham witnesses and there was a total absence of objective enquiry by the Sessions Court to assess whether the case falls within the rarest of rare category warranting death penalty. It thus granted Rs. 5 lakhs compensation to the appellant for living through the threat of death penalty for ten long years.

[S.24 CPC] Territorial Jurisdiction Is Not A Criteria While Transferring Divorce Petition To Competent Court: Kerala High Court

Case Title: Eldho Varghese v Liya Jose

Citation: 2024 LiveLaw (Ker) 412

The Kerala High Court has held that while transferring a divorce petition to another court, territorial jurisdiction of the Court to which the petition is transferred does not matter.

The High Court has power under Section 24 of the Code of Civil Procedure to transfer a proceeding to any Court subordinate to it and competent to try or dispose the suit. The Court held that competence is not with reference to territorial jurisdiction.

POCSO Offence Could Not Have Been Committed Without Interposition Of Alleged Abettor Not Enough, 'Intention' Of Abettor Must Be Shown: Kerala HC

Case Title: Jeffin Kuriakose v State of Kerala

Citation: 2024 LiveLaw (Ker) 413

The Kerala High Court has held that aiding committed with the 'intention' of facilitating the offence would attract an offence of abetment punishable under the POCSO Act.

Section 16 of the POCSO Act defines abetment and the punishment is provided under Section 17.

Justice P.G. Ajithkumar found that the petitioner aided the minor victim in availing a flat on rent in the presence of the accused and has intentionally facilitated the offence and could be charged under Section 17.

Transfer Of Depreciable Capital Assets Attracts Capital Gains Tax: Kerala High Court

Case Title: PVR Tourist Home Versus CIT

Citation: 2024 LiveLaw (Ker) 414

The Kerala High Court has held that the transfer of the depreciable capital assets attracted capital gains tax under Section 45(4) of the Income Tax Act, in the absence of distribution of any capital asset among the partners following a dissolution of the appellant firm.

The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M., while upholding the order of the tribunal that the charge of short-term capital gains had to be in accordance with the provisions of Section 45(4) of the Income Tax Act, observed that the Appellate Tribunal did not, however, proceed to determine the tax effect, if any, that would follow pursuant to its finding as regards the charge of short-term capital gains.

Filing Appeal In Tax Matters Require Legal, Technical Assistance: Kerala High Court Condones 11 Days Delay

Case Title: The Meenachil Taluk Cooperative Employees Cooperative Society Limited Versus Commissioner Of Income Tax (Appeals)

Citation: 2024 LiveLaw (Ker) 415

The Kerala High Court, while condoning the delay of 11 days, observed that filing an appeal in tax matters may require legal and technical assistance. The bench of Justice Murali Purushothaman has observed that the reason for not filing the a ppeal on time was the non-availability of the legal consultant.

Kerala High Court Quashes Order Demanding Late Fee For Delay In Filing GSTR-9C

Case Title: Raju Sreedharan Versus The Superintendent, Central Tax & Central Excise

Citation: 2024 LiveLaw (Ker) 416

The Kerala High Court has quashed the order demanding a late fee for delay in filing GSTR-9C.

The bench of Justice Murali Purushothaman relied on the decision of Kerala High Court in the case of Anishia Chandrakanth v. the Superintendent, Central Tax & Central Excise, in which it was held that in view of Notification No. 07/2023-Central Tax and Notification No. 25/2023, there appears to be no justification in continuing with the notices for non-payment of the late fee for belated GSTR-9C filed by taxpayers before April 1, 2023, the date on which one-time amnesty commences.

Long Lasting Provocation Not 'Sudden Provocation': Kerala HC Upholds Framing Of 'Murder' Charge Against Accused In Dr Vandana Das Case

Case Title: Sandeep G V State of Kerala

Citation: 2024 LiveLaw (Ker) 417

The Kerala High Court has upheld the order of the trial court disallowing the discharge application of Sandeep, booked for the murder of Dr Vandana Das. The Court stated that the prosecution materials prima facie substantiate the framing of charges under Section 228 of CrPC against Sandeep to proceed with the trial.

Dr Vandana Das, the 23-year-old house surgeon was stabbed to death by Sandeep who was brought to the government hospital by Pooyappally police.

Justice A. Badharudeen while rejecting the defence argument that Sandeep committed the offence out of sudden and grave provocation without an intent to cause murder, observed that long-lasting provocation cannot be construed as sudden and grave provocation.

Other important Developments This Week

Kerala High Court Directs State To Stop All Construction For Eco-Tourism Activities On Kuruva Island

Case Title: In Re: Bruno

Case Number: WP(C) 13204/ 2021

The Kerala High Court ordered to stop all construction activities for eco-tourism purposes in Kuruva island until further orders. The Court had earlier ordered for temporary closing of all eco-tourism centres in Wayanad, which was after an elephant killed Vellachallil Paul, an eco-tourism employee in Kuruva island.

The Court during the hearing on 26th June came to know that sanction has been granted for construction activities worth about Rs. 2 Crore for the purposes of eco-tourism at Kuruva island. The Division Bench of Justice A. K. Jayasankaran Nambiar and Gopinath P. directed the Advocate General to get instructions as to how such a sanction was granted.

Plea In Kerala High Court Challenges Levy Of Court Fee In Cases U/S 138 Negotiable Instruments Act

Case Title: Dineshan K. K. v The Registrar (General) High Court of Kerala and Others

Case No.: WP(C) 16650/ 2024

A petition has been filed before the Kerala High Court challenging the levy of court fees in complaints under Section 138 of Negotiable Instrument relating to dishonour of cheque.

The Registrar General of Kerala High Court had issued an Official Memorandum directing to collection of the court fee as recommended by the Finance Bill, 2024. This was done by invoking the provisions of Kerala Provisional Collection of Revenue Act 1985. The petition argues that the collection of court fees is bad in law as Sections 4 and 5 of the Kerala Provisional Collection of Revenue Act is itself unconstitutional.

Centre Notifies Appointment Of Justice A Muhamed Mustaque As Acting Chief Justice Of Kerala High Court

The Central Government has notified the appointment of Justice A. Muhamed Mustaque as the Acting Chief Justice of Kerala High Court. This follows upcoming superannuation of Chief Justice AJ Desai on July 04.

Kerala High Court Orders Police Protection For Principal And Staff Of Gurudeva College Allegedly Manhandled By SFI Activist

Case Title: Gurudeva College of Advanced Studies v State of Kerala and Others

Case Number: WP (C) 23964 of 2024

The Kerala High Court yesterday ordered the Police to offer protection to the principal, staff and students of Gurudeva College of Advanced Studies, Koyilandi. The police were asked to make sure that the law and order is maintained in the college. The protection order was granted as the college is set to re-open on 4th July.

The Principal of the college, Dr. Sunil Bhaskaran had alleged that B. R. Abhinav, SFI Koyilandi area committee president who is not a student of the college assaulted him. The issue started when the Principal denied some students permission to set up a help desk on the campus on the first day of admission. 3 SFI members in the college have been suspended over the incident. The college has been closed since the incident.

Kerala High Court Asks State To Explain How It Proposes To Disburse Rs 230 Crore Funds Allocated For Mid-Day Meals

Case Title: Kerala Pradesh School Teachers Assosciation v State of Kerala

Case Number: WP(C) No 29565 of 2023 and other connected cases

The Kerala High Court has asked the State to explain how it will disburse the funds allocated by the government towards mid-day meals in government school.

An amount of Rs. 232 Crores has been allocated in the State Budget for supplementary expenses in the mid-day meals in school for the year 2024- 2025. The Government has to inform the court about the methodology used for calculating the amount, the manner in which they will distribute the amount and the timeline within which they will do it.

Justice Ziyad Rahman A. A. was hearing a petition filed by Kerala Pradesh School Teachers' Assosciation stating that headmasters of the schools have to meet the expenses of noon-meal scheme from their own pocket due to the inadequate and untimely disbursal of funds by the State.

[Masala Bonds Case] ED Has No Jurisdiction To Probe Misutilization Of Funds, RBI Has Power To Authorize Inspection: KIIFB Tells Kerala High Court

Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director

Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024

The Kerala Infrastructure Investment Fund Board (KIIFB) submitted before the Kerala High Court that the Enforcement Directorate has no jurisdiction to investigate the misutilization of funds. It was submitted that the Reserve Bank of India (RBI) has to appoint an authorized person in writing to inspect as per Section 12 of the Foreign Exchange Management Act (FEMA).

Justice T R Ravi was considering the writ petition filed by KIIFB Challenging the summons issued against them by the ED to Dr Kandathil Mathew Abraham, (Chief Executive Officer, KIIFB) who was also the former Chief Secretary in relation to the masala bonds case. The summons was issued seeking the submission of documents and for taking oral evidence.

High Representation Of Women In Legal Field In Kerala Reflects Gender Parity, Sets Example For Other States: Chief Justice AJ Desai Retires

Kerala High Court Chief Justice AJ Desai today remarked that the sizeable representation of women in the legal filed in Kerala is a testament to the State's atmosphere of gender neutrality.

CJ Desai was speaking at the farewell function organised upon his superannuation.

Special Team Set Up To Probe Involvement Of Revenue Officials In Allegedly Forging Title Deeds In Munnar & Idukki Districts: Govt Tells Kerala HC

Case Title: One Earth One Life v State of Kerala

Case Number: WP(C) NO. 1801 OF 2010 & Connected Cases

The State Government has informed the Kerala High Court that a Special Team has been constituted to inquire into forging of title deeds, including taking bribes by revenue officials in Munnar and Idukki districts.

The Special Team has been constituted pursuant to the directions of the Court. The Court had directed the Government to form a Special Team consisting of high rank officials with the team of others including revenue officials to enquire and investigate the role of public officials in forging the Patta, including receiving gratification.

Kerala High Court Directs Registry To Ensure That Victims/ De-Facto Complainants Are Impleaded In Proceedings Related To Offences Under SC/ ST Act

Case Title: Sunny & Another v State of Kerala & Another

Case Number: Crl A. No. 1024 of 2024 (Filing No.)

The Kerala High Court directed the registry to ensure that the victims/de-facto complainants are made a party in proceedings in cases involving offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Justice K Babu directed the Registry to follow its earlier directions in this regard. The Court made this observation as it was dealing with an appeal where the victim was not impleaded.

[Masala Bonds Case] ED Summons Illegal, Individuals Need Greater Protection Than Statutory Bodies: Ex-Finance Minister Dr Thomas Isaac Tells Kerala HC

Case Title: Kerala Infrastructure Investment Fund Board V Director, Dr. T.M. Thomas Isaac V The Deputy Director

Case Number: WP(C) 1377/ 2024, WP(C) 3719/ 2024

Former Finance Minister Dr Thomas Isaac submitted before the Kerala High Court that he is an individual citizen and requires greater protection than KIIFB which is a statutory corporation against the summons issued by the Enforcement Directorate (ED) in the 'masala bonds' case.

It was submitted that the summons issued against Dr Isaac under the Foreign Exchange Management Act has serious consequences and affects several rights such as the Right To Reputation guaranteed by the Constitution.

Kerala High Court Calls Railways A "Bulk Waste Generator", Says It Must Take Responsibility To Clear Railway Tracks & Sidings

Case Title: Suo Moto v State of Kerala and Others

Case No: WP(C) 7844/ 2023

The Kerala High Court said that the Railways will have to be regarded as a 'bulk waste generator' as most of the waste found throughout the tracks seems to be from the trains. The Court observed that Railways has a duty to prevent the disposal of waste on the tracks.

The Court said that the waste disposed on the tracks flows into water bodies causing substantial environmental damage. Though the waste is properly managed near the stations, enough steps are not taken to remove waste from the side of the tracks. The Court said that one reason of dumping is that the compartments does not have sufficient waste bins.