Kerala High Court Weekly Round-Up: October 28- November 03, 2024

Wahabuddin V State Of Kerala & Other Cases, 2024 Livelaw (Ker) 679

Celinamol Mathew v State of Kerala, 2024 LiveLaw (Ker) 680

Mohan Poovampally Gopal v. Principal Commissioner of Income Tax, 2024 LiveLaw (Ker) 681

Elsy Joy v. The Deputy Commissioner Of State Tax, 2024 LiveLaw (Ker) 682

Noushad Flourish v Akhila, 2024 LiveLaw (Ker) 683

Kottila Veetil Krishnakumar v State of Kerala, 2024 LiveLaw (Ker) 684

M/s Sance Laboratories Private Limited v Union of India and Others & Connected Cases, 2024 LiveLaw (Ker) 685

Muhammed Ashraf K. A. v The Sub Inspector of Police and Others, 2024 LiveLaw (Ker) 686

Babu K Korah v State of Kerala, 2024 LiveLaw (Ker) 687

X v State of Kerala and Anr, 2024 LiveLaw (Ker) 688

Dr K Jayaprasad v Dr Jitha S R, 2024 LiveLaw (Ker) 689

Judgments/Orders This Week

Scope of Judicial Review In Technical Matters Related To Infrastructure Projects, Land Acquisition Is Limited: Kerala HC Reiterates

Case Title: Wahabuddin V State Of Kerala & Other Cases

Citation: 2024 Livelaw (Ker) 679

Dismissing an appeal against an order rejecting the challenge to a land acquisition for construction of a Railway Over Bridge (ROB) at Edava in Thiruvananthapuram District, the Kerala High Court reiterated that the scope of judicial review in such technical matters like infrastructure projects and land acquisition is limited.

In doing so the court underscored that a balance has to be maintained between public interest and private interest in such cases.

Referring to various decisions of the Supreme Court and high court on the subject a division bench of Chief Justice Nitin Jamdar and Justice S Manu said:

“Scope of judicial review in the case of technical matters related to infrastructure projects like alignment is extremely limited. Same is the case with acquisition of land also. We are conscious of the fact that delay in acquisition of land as well as implementation of projects involving huge expenditure would lead to multiplication of the of the financial burden, apart from delaying the enjoyment of benefits envisioned to be made available to the public with the implementation. It needs no mention that the cost of construction escalates with passage of time. A project contemplated at one point of time, when implemented several years later, would cause huge loss to the public exchequer".

Kerala High Court Calls For Protection Of Nurses From Malicious Medical Negligence Cases, Says They Deserve Moral Support

Case Title: Celinamol Mathew v State of Kerala

Citation: 2024 LiveLaw (Ker) 680

The Kerala High Court ruled that private complaints against nurses alleging medical negligence should not be entertained unless the complainant gives prima facie evidence in the form of expert opinion to support their case of negligence.

The Court observed that nurses must be able to work without fear of malicious and frivolous prosecution alleging medical negligence. It emphasized that nurses must receive care, protection and also moral support from society while doing their duty.

The Apex Court in Jacob Mathew v. State of Punjab & Another (2005) had laid down guidelines governing the prosecution of doctors for the offence of criminal negligence, punishable under Section 304A of IPC.

Justice P.V.Kunhikrishnan thus urged the state government to issue a circular within three months to protect nurses from malicious prosecutions in tune with the Apex Court judgment in Jacob Mathew (supra).

Condonation Of Delay Application Should Focus On Sufficient Reason, Not Merits Of Claim U/S 119(2)(B) Of Income Tax Act: Kerala High Court

Case Title: Mohan Poovampally Gopal v. Principal Commissioner of Income Tax

Citation: 2024 LiveLaw (Ker) 681

The Kerala High Court stated that an application for condonation of delay should focus on whether there was sufficient reason to condone the delay under Section 119(2)(B) of the Income Tax Act, rather than on the merits of the assessee's claim.

Section 119(2)(B) of the Income Tax Act, 1961 empowers CBDT to direct income tax authorities to allow any claim for exemption, deduction, refund and any other relief under the income tax act even after the expiry of the time limit to make such claim.

The Bench of Justice Gopinath P. observed that “………the Principal Commissioner of Income Tax had considered the merits of the claims raised by the assessee instead of assessing whether there was sufficient reason to condone the delay or extend time as per the provisions in Section 119(2)(b) of the Income Tax Act, 1961………..”

Assessment Order Passed Before Expiry Of Time To File Reply Is Liable To Be Set Aside: Kerala High Court

Case Title: Elsy Joy v. The Deputy Commissioner Of State Tax

Citation: 2024 LiveLaw (Ker) 682

The Kerala High Court stated that any assessment order issued before the time allowed for filing a reply has no legal validity and can be overturned.

The Bench of Justice Gopinath P. observed that “…….the assessee had filed an appeal against the order is no ground to refuse relief to the assessee as the original order was clearly issued in violation of principles of natural justice…….”

Judicial Officer Cannot Be Browbeaten For Convenience Of A Party: Kerala High Court Dismisses Transfer Petition Alleging Bias, Imposes ₹15K Cost

Case Title: Noushad Flourish v Akhila

Citation: 2024 LiveLaw (Ker) 683

The Kerala High Court has dismissed a transfer petition which was filed alleging bias of judicial officer with a cost of fifteen thousand rupees, finding that the petition was meritless and was used as a ploy to delay the court proceedings.

In the facts of the case, the petitioner husband approached the High Court seeking the transfer of matrimonial dispute cases, alleging the Presiding Officer's bias.

Justice Bechu Kurian Thomas found that the petitioner had filed two transfer petitions earlier, alleging identical allegations of bias against different Presiding Officers. Court said, “The similarity of allegations raised against two different Presiding Officers who dealt with petitioner's cases is a clear indication of petitioner's calumny. The various allegations raised by the petitioner against the Presiding Officer are without any merit. Such vituperative denigration of a judicial officer by a litigant has to be dealt with sternly and cannot be tolerated under any circumstances whatsoever.”

Tax Planning Is Permissible But Evasion Is Impermissible: Kerala HC On Husband Transferring Portion Of Residential Building To Wife To Evade Luxury Tax

Case Title: Kottila Veetil Krishnakumar v State of Kerala

Citation: 2024 LiveLaw (Ker) 684

The Kerala High Court has dismissed the petition moved by a husband who transferred a portion of his residential building to his wife's name to secure an exemption from payment of luxury tax under Section 5A of the Kerala Building Tax Act, 1975

It is to be noted that as per Section 5A of the Kerala Building Tax Act, 1975, a luxury tax is charged on a residential building if its plinth area exceeds 278.7 square meters.

Justice Gopinath P. observed that the attempt of the husband was to evade tax which is impermissible in law.

Kerala High Court Strikes Down Rule 96(10) of CGST Rules Retrospectively, Finds Them Ultra Vires To CGST Act

Case Title: M/s Sance Laboratories Private Limited v Union of India and Others & Connected Cases

Citation: 2024 LiveLaw (Ker) 685

The Kerala High Court struck down Rule 96(10) of the Central Goods and Service Tax Rules holding that it was ultra vires to the Section 16 of the Integrated Goods and Service Tax Act and was manifestly arbitrary.

Justice P. Gopinath noted that Section 16 has not imposed any restriction in availing refund of taxes paid on input goods and input services or claiming refund of IGST after payment of IGST on the exports. The Court, therefore held that the restriction imposed under Rule 96(10) on claiming refund is ultravires to the Act.

Public Prosecutor Cannot Just Act As Per Instructions Of Govt, Must Apply Mind Before Withdrawing Case: Kerala High Court

Case Title: Muhammed Ashraf K. A. v The Sub Inspector of Police and Others

Citation: 2024 LiveLaw (Ker) 686

The Kerala High Court held that the Public Prosecutor has to apply his mind independently on the material before him and decide whether to withdraw a case even if the Government has ordered for withdrawal. The Single Bench of Justice K. Babu observed that the Public Prosecutor should independently decide that such a case is fit for withdrawal even if there is a direction from the Government.

The High Court said that the Public Prosecutor while making an application for withdrawal under Section 321 of Cr.P.C. should make a statement that he had in good faith and is satisfied after considering all relevant materials that the withdrawal from prosecution is in public interest and it will not stifle or thwart the process of law or cause injustice.

Bar On Credit Society Members Contesting Beyond 3 Terms Illegal: Kerala HC Strikes Down S.28 (2A) Of Co-operative Society Amendment Act 2023

Case Title: Babu K Korah v State of Kerala

Citation: 2024 LiveLaw (Ker) 687

The Kerala High Court has declared Section 28 (2A) of the Kerala Co-operative Society Amendment Act, 2023 as illegal, unconstitutional and against the principles of co-operative member control. Section 28 deals with the constitution of the Committee for the management of the affairs of the Society.

Section 28 (2A) states that no member of a credit society shall be eligible for election to the committee for more than three consecutive terms. Section 28 (2A) was introduced by Act 9 of 2024 and it was notified and published in the Kerala Gazette on June 07, 2024.

Justice N Nargaresh observed that Co-operative Societies that function in rural and urban areas depend upon the trustworthiness of their members and have to function democratically. The court held that the General body can incorporate conditions in the bye-laws of the Society on elections, but the State cannot impose arbitrary restrictions that affect the autonomy of Co-operative Societies.

Woman's Partner, His Relatives Can't Be Prosecuted For Cruelty In Absence Of Legal Marriage: Kerala High Court

Case Title: X v State of Kerala and Anr

Citation: 2024 LiveLaw (Ker) 688

While quashing a criminal case registered against a man under Section 498A IPC by the complainant wife, the Kerala High Court reiterated that in the absence of records proving legal marriage between the parties, there can be no prosecution for cruelty against the partner of the woman, or his relatives. In the facts of the case, the marriage between the petitioner husband and the de facto complainant wife was declared as null and void by the Family Court in 2013 after finding that the complainant wife's prior marriage was subsisting and had not dissolved. The high court thus said since the marriage has been declared as null and void, then there is "no legal marriage in the eye of law".

Referring to the court's recent decision on the subject, a single judge bench of Justice A. Badharudeen held: “Thus it is emphatically clear that when there is no legal marriage the woman's partner did not attain the status of her husband and an offence under Section 498A of IPC would get attracted only against her husband or relative/relatives of her husband. Therefore, in the absence of a legal marriage as borne out from the records, no offence under Section 498A of IPC would get attracted against the partner of a woman or against the partner's relatives since the partner without a legal marriage would not occupy the status of husband.

Challenge To Nine-Year-Old Appointment Through New Petitioners Not Possible If Earlier Petitions Were Dismissed For Delay: Kerala High Court

Case Title: Dr K Jayaprasad v Dr Jitha S R

Citation: 2024 LiveLaw (Ker) 689

Kerala High Court: A Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar dismissed a writ appeal challenging the Single Judge's order that had directed fresh consideration of representations against a professor's appointment. They held that matters settled through earlier Public Interest Litigations cannot be re-agitated through fresh proceedings, even by different petitioners, especially after significant delay.

Judgments/Orders This Week

So Far 26 FIRs Registered Based On Justice Hema Committee Report: State Tells Kerala High Court

Case Number: WPC No. 31205/2024 & Other Cases

Case Title: Jannath v State of Kerala & Other Cases

The Kerala government today informed the High Court that 26 FIRs have been registered based on the Justice Hema Committee Report, pursuant to Court's direction to the Special Investigating Team (SIT) to take necessary action as per Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The State Government submitted the SIT's Action Taken Report to the Special Bench, Justice A. K. Jayasankaran Nambiar and Justice C. S. Sudha, which is hearing matters related to the Committee Report.

Plea In Kerala High Court Seeks To Prevent 'Fake Doctors' By Establishing Centralized Portal For Verification, Conducting Inspections

Case Title: General Practitioners Association, Represented By Its General Secretary v State of Kerala & Ors

Case Number: WP(C) 37655/2024

A plea has been moved before the Kerala High Court urging the implementation of necessary measures to curb the increasing number of fake doctors practicing in the state.

Justice V G Arun has posted the matter to November 25 for instructions. The Petitioner, General Practitioners Association is a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act. The Petitioner Society consists of registered medical practitioners working to uphold the the dignity of the medical profession, particularly in general medical practice, and to safeguard the interests of its members while promoting cooperation among them.

Centre Notifies Appointment Of Five Additional Judges To Kerala High Court

The Central government has notified the appointment of five additional judges to the Kerala High Court of Kerala.

The following are the names:

1. Shri Paramesara Panicker Krishna Kumar

2. Shri Kodassery Veliyath Madom Jayakumar

3. Shri Muralee Krishna Shankaramoole

4. Shri Jobin Sebastian

5. Shri Pandikkaran Varadaraja Iyer Balakrishnan

Five New Additional Judges Sworn In, Kerala High Court To Function With 45 Judges For The First Time

Five new additional judges were sworn in at the Kerala High Court today.

With this, the Kerala High Court will now function with a strength of 45 Judges, as against the sanctioned strength of 47 Judges.

The present sanctioned strength of Kerala High Court is 35 permanent judges including the Chief Justice and 12 Additional Judges.

After the swearing-in ceremony of five additional judges today, the Kerala High Court has 30 permanent judges including the Chief Justice and 15 Additional Judges.

Plea In Kerala High Court Seeks Restrictions On Entry Of Non-Hindus To Temples Under Cochin Devaswom Board

Case Title: Dilip Menon and Another v Cochin Devaswom Board and Others

Case No: WP(C) No. 34734/ 2024

A plea has been moved before the Kerala High Court seeking the Court to declare that persons belonging to other religious faiths are not allowed to enter the Temples or Temple compounds under the Cochin Devaswom Board.

The Division Bench of Justice Anil K Narendran and Justice P G Ajithkumar has given time to the Cochin Devaswom Board to file their counter affidavit.

The petition has been moved by devotees of Lord Poornathrayeesa Temple at Thripunithura. The petitioners contended that non-believers with 'scant regard to the sacred nature of the pujas, ceremonies, rituals or Agama system' were entering Sri Poornathrayeesa Temple.

Decision On Categorisation Of Wayanad Landslide Disaster Will Be Done In Two Weeks: Centre To Kerala High Court

Case Title: In re: Prevention and Management of Natural Disasters in Kerala

Case No: WP(C) 28509 of 2024

The Additional Solicitor General Adv. A. R. L. Sundaresan informed the Kerala High Court that the High-Level Committee will take a decision on the categorization of the Wayanad landslide.

The Amicus curiae Adv. Ranjith Thampan submitted before the Court that if the disaster is categorized as a Level 3 Disaster, various avenues of relief and rehabilitation will be open to the State. He urged that the Disaster should be categorized as an L3 disaster (Level 3) disaster. As per the disaster management plan of the National Disaster Management Authority, L3 disaster is a nearly catastrophic situation or a very large-scale disaster that overwhelms the State and District authorities.

No Plausible Explanation For Inordinate Delay To Lodge FIR: Kerala HC Grants Interim Bail To Actor Balachandra Menon In Sexual Assault Case

Case Title: Balachandra Menon v State of Kerala

Case Number: Bail Appl. No. 9058 Of 2024

The Kerala High Court has granted interim bail till November 21, 2024, to Malayalam actor Balachandra Menon in a sexual assault case filed against him after the publication of the Justice Hema Committee Report.

Justice C S Dias observed that the de facto complainant has not given a plausible explanation for the inordinate delay in lodging the FIR in 2024, when the alleged crime took place between 12 January to 21 January 2001.

Kerala High Court Issues Notice To Union Minister Suresh Gopi On Plea Challenging Lok Sabha Election Results Over Alleged Corrupt Practices

Case Title: Binoy A. S. v Suresh Gopi

Case No: El.Pet. 1/ 2024

The Kerala High Court issued notice to Union Minister and actor Suresh Gopi in a petition filed by AIYF Thrissur District President, Binoy A. S. challenging the election of the MP from Thrissur constituency. The petitioner alleged that the actor had indulged in many contempt practices as mentioned under Section 123 of Representation of People Act and therefore the election of the actor is to be declared void. The matter came before the Bench of Justice Kauser Edappagath.

“Thus, the aforesaid actions of the respondent, his election agent as well as other persons with the consent of respondent amounts to corrupt practice as defined under Sec. 123 of the Representation of People Act, 1951. Hence the election of the respondent to the Lok Sabha from No. 10 Thrissur Lok Sabha constituency is to be declared void.”, urged the petition.

Kerala High Court Admits Plea Seeking SOP For Making Appam And Aravana Prasadam In Sabarimala Temple

Case Title: Dr. Mahendra Kumar P S v State of Kerala

Case Number: WP(C) NO. 38049 OF 2024(E)

The Kerala High Court has admitted a plea moved by a devotee of Lord Ayyappa of Sabarimala Temple seeking a direction to the Travancore Devaswom Board to prepare a Standard Operating Procedure developed by an expert body for procurement, quality checking and analysis of the standards set by the Food Safety and Standards Authority of India (FSSAI) for preparing Appam and Aravana prasadam at the Temple.

The devotee also seeks a declaration that it is essential to set up a state of the art laboratory for inspection, sampling, testing and quality checking the ingredients used for preparing the Appam and Aravana.

The Division Bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar issued notice to the officials of the Travancore Devaswom Board and the FSSAI. The Standing Counsel for the Devaswom Board and the Counsel appearing on behalf of FSSAI have sought time to get instructions.