Kerala High Court Weekly Round-Up: September 04 - September 10, 2023

Nominal Index [Citations: 2023 LiveLaw (Ker) 447-462]

Vijay Philip v. Narcotic Control Bureau 2023 LiveLaw (Ker) 447

Hindustan Organic Chemicals Ltd. V Lissiama James 2023 LiveLaw (Ker) 448

Kerala State Horticultural Products Development Corporation Limited V Sunil Kumar S 2023 LiveLaw (Ker) 449

Umesh v. State of Kerala 2023 LiveLaw (Ker) 450

M/S Anantham Online Pvt. Ltd. v. Senior Divisional Commercial Manager, Southern Railway, Thiruvananthapuram 2023 LiveLaw (Ker) 451

V V Jaya v. M P Rajeswaran Nair 2023 LiveLaw (Ker) 452

Sandesh S V The Kerala Water Authority 2023 LiveLaw (Ker) 453

Adv. Richard Rajesh Kumar V Union of India 2023 LiveLaw (Ker) 454

K. Muraleedharan Nair & Anr. v. Union of India & Ors. 2023 LiveLaw (Ker) 455

Radhakrishnan K. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 456

Sanjeesh S.S. v. State of Kerala & Ors. and other connected cases 2023 LiveLaw (Ker) 457

Nafeesath Beevi V The Chief Executive Officer Kerala State Wakf Board 2023 LiveLaw (Ker) 458

Mohammed Moideen v. Maben Nidhi Ltd. 2023 LiveLaw (Ker) 459

State of Kerala V P M Kunhappan 2023 LiveLaw (Ker) 460

Sunil Kumar V State of Kerala 2023 LiveLaw (Ker) 461

 Yeshwanth Shenoy v. The Chief Justice, High Court of Kerala & Ors 2023 LiveLaw (Ker) 462

Judgments/Orders This Week

Use Of Technology For 'Secretive' Drug-Related Transactions Relevant Consideration While Deciding Bail Plea U/S 37 NDPS Act: Kerala High Court

Case Title: Vijay Philip v. Narcotic Control Bureau

Citation: 2023 LiveLaw (Ker) 447

The Kerala High Court has criticised the use of modern technology for carrying out 'secretive transactions' for obtaining contraband articles and has held that such actions constitute a relevant consideration while deciding applications for bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act').

Single Bench of Justice Ziyad Rahman A.A. noted that through the use of Apps such as Wickr App and Binance App, the petitioner-accused in this case sought to ensure that the transactions carried out by him remained untraced.

"The eagerness to maintain secrecy is something very crucial at this stage and relevant for considering the 'reasonable grounds' as contemplated under section 37 of the NDPS Act ('Offences to be cognizable and non-bailable'). The dependence of the petitioner upon the Apps that enabled him to have transactions without any trace and silence maintained by him as to the purposes of such transactions is one of the crucial circumstances," the Court observed while refusing bail.

Award Under Workmen's Compensation Act Doesn't Preclude Reliefs Under Disabilities Act: Kerala High Court

Case title: Hindustan Organic Chemicals Ltd. V Lissiama James

Citation: 2023 LiveLaw (Ker) 448

The Kerala High Court recently upheld the order of the Central Administrative Tribunal granting relief to an employee who suffered serious burns during the course of his employment.

The Court observed the Chief Commissioner under the PWD cannot finally adjudicate upon the right of the employee to claim compensation. The Court also stated that the employers cannot deny the benefits to an employee under the Persons with Disability Act, 1995 (PWD) stating that compensation has already been granted under the Workmen’s Compensation Act.

A division bench comprising of Justice Alexander Thomas and Justice C. Jayachandran held thus:

“That apart, the Workmen's Compensation Act provides compensation for injury caused by an accident arising out of or during the course of employment, whereas PWD Act affords protection of rights and full participation of persons with disabilities. Both occupies different fields and the remedy availed in one cannot preclude the remedy under the other enactment.”

Daily Wage Workers Entitled To Claim Subsistence Allowance During Suspension: Kerala High Court

Case name: Kerala State Horticultural Products Development Corporation Limited V Sunil Kumar S

Citation: 2023 LiveLaw (Ker) 449

The Kerala High Court has held that under the Kerala Payment of Subsistence Allowance Act 1972, a daily wage employee is entitled to subsistence allowance during suspension.

Justice Murali Purushothaman observed thus,

“Section 2(a) does not exclude a daily wage employee for the purpose of payment of subsistence allowance...Accordingly, I hold that the 1st respondent, a daily wage driver, is an employee as defined under Section 2(a) of the Kerala Payment of Subsistence Allowance Act, 1972, and is entitled to subsistence allowance during suspension.”

WhatsApp Chat Shows Sex Was Consensual, Woman Received 5K After Alleged Incident: Kerala High Court Grants Anticipatory Bail To Rape Accused

Case Title: Umesh v. State of Kerala

Citation: 2023 LiveLaw (Ker) 450

The Kerala High Court granted anticipatory bail to a 46-year old, who was accused of committing gang rape on a woman and transmitting her sexually explicit video online, on finding that the intercourse was consensual in nature, and an amount of Rs. 5,000/- was also paid to the woman after the alleged incident.

The prosecution allegation was that the petitioner and the 1st accused person stupefied the victim after giving her liquor, and indulged in the alleged acts, and thereby committed the offences under Sections 376D IPC ('Gang Rape'), and Section 67A of the Information Technology Act ('Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form').

Justice Kauser Edappagath perused the screenshot of the WhatsApp chat between the petitioner-accused and the woman, and observed:

"WhatsApp screenshot would show that the victim voluntarily went to the hotel knowing very well that the applicant and the accused No.1 were there in the hotel. The WhatsApp chat would further show that the sex they had at the hotel was consensual in nature. Annexure -4 receipt for payment of Rs.5,000/- coupled with her WhatsApp chat would show that the applicant paid Rs.5,000/- to the victim after the alleged incident of rape. Moreover, there is a delay of 12 days lodging the FIR. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary".

Contract Implied When Parties Bind Themselves To Specified Terms & Conditions Despite Absence Of Formal Agreement: Kerala High Court

Case Title: M/S Anantham Online Pvt. Ltd. v. Senior Divisional Commercial Manager, Southern Railway, Thiruvananthapuram

Citation: 2023 LiveLaw (Ker) 451

The Kerala High Court recently laid down that even if a formal agreement has not been entered into between the parties, where they have bound themselves to certain specified terms and conditions, it cannot be contended that there is no concluded contract between the parties.

While accepting the arbitration request and appointing an Arbitrator for resolving the dispute between M/S Anantham Online Pvt. Ltd., and the Senior Divisional Commercial Manager, Southern Railway, regarding the execution of a work contract between the parties for operating the Vehicle Parking Facility at Thiruvananthapuram Central (Main Entry) Railway for a period of two years, Justice Devan Ramachandran, observed:

"I...fail to understand the purport of the argument of the respondent that, there was no concluded contract between the parties because, in the scenario where even a formal agreement had not been entered into, Annexure A1 makes it unequivocally evident that terms of the “LOA”, as also any other which may be imposed later, would apply and that parties will have to scrupulously follow the same. Since Annexure A6 (Letter of Award) reiterates this, as also the fact that “contract” has been awarded to the petitioner on certain specified conditions, I cannot countenance the contra argument that there is no concluded contract between the parties".

Ex-Wife’s Claim For Residence In Shared Household Cannot Supersede Decree For Eviction Passed By Competent Civil Court: Kerala High Court

Case name: V V Jaya v. M P Rajeswaran Nair

Citation: 2023 LiveLaw (Ker) 452

The Kerala High Court recently held that divorced wife cannot 'cling on' to the matrimonial home claiming it to be shared household, superseding the order of eviction passed by a competent Civil Court.

Justice A. Muhamed Mustaque and Justice Sophy Thomas held thus:

“By the impugned judgment, the Family Court ordered eviction of the appellant from the petition schedule building in accordance with the procedure established by law, and her claim for residence in that building, as a shared household cannot supersede the decree for eviction granted by a competent civil court. In any view of the matter, the appellant has no right to reside in the petition schedule building and so, she is bound to vacate that building forthwith.”

Employee Obtains Lien Only In His Parent Department, Cannot Be Allowed To Move Back And Forth Between Two Services: Kerala High Court

Case name: Sandesh S V The Kerala Water Authority

Citation: 2023 LiveLaw (Ker) 453

The Kerala High Court recently refused permission to an employee governed by the Kerala State and Subordinate Services Rules to move back and forth between two departments. The Court held that an employee obtains statutory lien only in the parent department and once that was invoked, he cannot later seek permission to go back to the borrowing department.

Justice Devan Ramachandran observed thus:

“This is incontestable because, even as per the above provision, the employee obtains lien only in his parent department, to be able to return to it if his appointment in the subsequently appointed department had not been confirmed. On this having been invoked, there was no statutory lien left for the petitioner in the latter department, so as to then return to it – such being confined only in the parent department.”

Decide Representation For Establishment Of AIIMS At Kochi Instead Of Kozhikode: Kerala High Court To Govt

Case name: Adv. Richard Rajesh Kumar V Union of India

Citation: 2023 LiveLaw (Ker) 454

The Kerala High Court disposed of a public interest litigation seeking establishment of All India Institute of Medical Sciences (AIIMS) in Kochi, by including it in the current phase of Pradhan Mantri Swasthya Suraksha Yojana (PMSSY).

A division comprising Chief Justice A. J. Desai and Justice V. G. Arun observed thus:

“It would be open for the petitioners to make a representation to the concerned authority for establishing AIIMS at Kochi. If such representation is made, the respondent authority shall consider the same, at the earliest, and the decision of the authority shall be forwarded to the petitioners.”

Kerala High Court Dismisses PIL Seeking Abolition Of Kerala Administrative Tribunal

Case Title: K. Muraleedharan Nair & Anr. v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 455

The Kerala High Court dismissed a plea filed in the nature of a public interest litigation (PIL) seeking to abolish the Kerala Administrative Tribunal.

The petitioner sought the abolition of the Tribunal on the ground that the objectives of the tribunal, such as reduction of the workload of the High Court and the expenditure incurred by the Government in conducting cases in the High Court, were not materialized due to the decisions of the Tribunal being challenged before the High Court. The petitioner claimed that it thus imposed a heavy financial burden on the State's Exchequer and added expenditure, inconvenience, hardships to the litigants.

He thus sought a direction to be issued to the respondent authorities to the necessity, feasibility and desirability of continuing the Tribunal, and to take an appropriate decision as regards its continuance.

The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun however, dismissed the plea on taking note of the objection raised by the respondents that a similar issue had been dealt with by the Court in Sreekantan v. State of Kerala (2011), and Basil Attipetty v. Union of India (2012).

Lack Of Special Rules No Ground For State To Deny Promotion Under Rights Of Persons With Disabilities Act : Kerala High Court

Case Title: Radhakrishnan K. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 456

The Kerala High Court recently observed that the provisions of the Rights of Persons with Disabilities Act, 2016, would have to be implemented by State authorities in the context of promotions for persons with disabilities, alongwith the various rulings of the Apex Court governing the field, without inordinate delay.

The Bench added that in case effectuating the same required amendment of the statutory Special Rules, the same could not be a reason for delaying the specific objectives of the parliamentary legislation, and the directions issued by the Apex Court.

"...we make it clear that the Union legislation, as per the Rights of Persons with Disabilities Act, 2016, will have to be complied with by the State authorities, especially in view of the various rulings of the Apex Court governing the field and even if there are no specific provisions in that regard, in the Statutory Special Rules and other executive orders, if any, in the matter of Rules of recruitment and methods of appointment, once the post is identified, there cannot be any further delay in the matter. The process for amendment of the Special Rules etc., may go on, but that cannot be the reason for delaying and frustrating the objectives of the parliamentary legislation as well as the specific directives and admonitions issued by the Apex Court, which, in the case of Leesamma's case (supra) [State of Kerala & Ors. v. Leesamma Joseph (2021)] has been specifically directed against the State of Kerala," the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran observed.

District Judge Must Give 'Specific Grounds' For Rejecting Candidates For Addl Govt Pleader/ Addl Public Prosecutor Posts: Kerala High Court

Case Title: Sanjeesh S.S. v. State of Kerala & Ors. and other connected cases

Citation: 2023 LiveLaw (Ker) 457

The Kerala High Court recently directed the District Judge, Trivandrum, to reconsider the competence and credentials of lawyers who were found ineligible for appointment as Additional Government Pleaders and Additional Public Prosecutors in the district.

Justice Devan Ramachandran observed that the 'specific grounds' that led to opinion of the District Judge with respect to the competence and suitability of the applicants are crucial in the matter.

"District Judge can disapprove a particular name only for specified grounds. It is without contest that none of the petitioners in these cases have been informed why they have been found not eligible for being recommended by the learned District Judge and there is no input on record to indicate the reasons in any manner whatsoever," it observed.

The bench added, "...the word ‘specific grounds'; relating to the rejection of a candidate by the learned District Judge, assumes great importance because rejection/recording of disapproval, can be done only for valid and specified cause. Since the records to these writ petitions reveals no such having been intimated to the petitioners, I am certainly of the view that their cases will require to be reconsidered by the learned District Judge, leading to the revision of the Panel, now prepared by the District Collector, in terms of law, if it becomes so warranted."

Tenant Whose Lease Period Expired Will Be Treated As An Encroacher Under Wakf Act: Kerala High Court

Case name: Nafeesath Beevi V The Chief Executive Officer Kerala State Wakf Board

Citation: 2023 LiveLaw (Ker) 458

The Kerala High Court recently held that after the lease period is over, a tenant would be treated as an 'encroacher' under the Wakf Act.

Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that once the Wakf Act was enacted and no lease subsists, the relationship between the parties will be governed under the Wakf Act and not under the Transfer of Property Act. It observed thus:

“The Transfer of Properly Act is a general enactment governing lease. When a special enactment treats a tenant in a particular way after the expiry of the lease, the procedure referred to in the special enactment will have to be followed. In so far as the nature of occupation after the lease period is over, the Wakf Act would prevail and not the Transfer of Property Act. The revision petitioner has no case that the lease subsists. Therefore, on expiry of the lease, he has to be treated as an encroacher.”

Order XXI CPC | Failure To Raise Objections Before Proclamation Of Sale Not Bar To Challenge An Irregular Sale: Kerala High Court

Case Title: Mohammed Moideen v. Maben Nidhi Ltd.

Citation: 2023 LiveLaw (Ker) 459

The Kerala High Court recently laid down that the failure to raise objections before the proclamation of sale as prescribed under Order XXI Rule 90(3) CPC does not preclude the appellant from challenging the sale if the mandatory procedures under Order XXI Rule 64 were not complied with.

Order XXI Rule 64 CPC deals with the power of the court to order property attached to be sold and proceeds to be paid to the person entitled. The provision states that an execution Court must sell such portion of property as may be necessary to satisfy the decree.

The Division Bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar emphasised the duty of the court to ensure strict compliance with procedural requirements and noted that a proclamation of sale drawn up casually, without adherence to mandatory provisions, would not be considered a valid sale.

"...where the Court failed to discharge its duty by non complying with the mandatory provisions in Order XXI, Rule 90(3) of Order XXI of the Code does not debar the appellant from raising such infraction. Therefore the contention that in all cases where the judgmental debtor had opportunity to raise objection before conducting sale the bar under sub-rule (3) of Order XXI, Rule 90 of the Code cannot be held good. If there occurred non-compliance of mandatory provisions of Rule 64 of Order XXI, it cannot be said that the failure of the judgment debtor to question the proclamation then and there would disentitle him from raising that question at post sale stage".

Appellate Courts Can Interfere With Acquittal Judgments Despite Double Presumption In Favour Of Accused: Kerala High Court

Case Title: State of Kerala V P M Kunhappan

Citation: 2023 LiveLaw (Ker) 460

While reversing an order of acquittal in a bribery case against a village officer, the Kerala High Court recently observed that CrPC does not mandate the appellate court to differentiate between the appeals against judgments of conviction or acquittal and that they have the same powers while dealing with both.

Justice Kauser Edappagath relying upon various Apex Court decisions stated that in an appeal against acquittal, the High Court has full power to review facts and law and to reconsider evidence to decide if an order of acquittal should be reversed.

“It is true that in the case of acquittal, there is double presumption in favour of the accused, and an order of acquittal cannot be interfered with as a matter of course. However, there is no difference in power, scope, jurisdiction, or limitation under the Cr. P.C. between the appeals against judgment of conviction or acquittal. The appellate court is free to consider fact and law, despite the self-restraint that has been ingrained into practice, while dealing with the judgment of acquittal considering the interest of justice and fundamental principles of presumption of innocence.”

'No Positive Act Of Instigation': Kerala High Court Quashes Abetment Of Suicide Case Against Defence Aspirant For "Keeping Away" From Girlfriend

Case name: Sunil Kumar V State of Kerala

Citation: 2023 LiveLaw (Ker) 461

The Kerala High Court recently quashed the criminal proceedings initiated against a Defence aspirant for allegedly abetting the suicide of his college-girlfriend by keeping away from their relationship after passing out.

Single bench of Justice K Babu cited plethora of precedents to reiterate that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence and an active act of instigation which led the deceased to commit suicide.

"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained," the Court held.

Litigants Getting Fair Hearing Is Important, Not Number Of Cases Listed: Kerala High Court Dismisses Lawyer's Appeal Against Sitting Judge

Case title: Yeshwanth Shenoy v. The Chief Justice, High Court of Kerala & Ors

Citation: 2023 LiveLaw (Ker) 462

The Kerala High Court dismissed the writ appeal preferred by Advocate Yeshwanth Shenoy against the dismissal of his plea challenging limited listing of cases before the bench of Justice Mary Joseph.

A division bench comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen said listing of cases is a prerogative of the administrative side of the High Court. "The Chief Justice is the authority to decide and if he does not decide, it does not give the appellant a cause of action to approach the Court by filing a writ petition," it observed while dictating the order in open court.

Court further remarked,

"No one can dictate the Court regarding listing of cases. Number of cases listed is not relevant, as it is upon the Court to consider twenty or two hundred cases depending upon the complexity of the cases. Complaints can be filed even when two hundred cases are listed. Number of cases listed does not matter, the important aspect is that the litigants get a fair hearing."

Other Significant Developments This Week

Man Attempts Suicide In Kerala High Court, Stable

A resident of Thrissur attempted suicide inside the Kerala High Court, in front of the chambers of Justice Anu Sivaraman.

The man was called to the Court in a habeas corpus petition filed by the father of a 23-year-old law student.

Plea Filed In Kerala High Court After Vigilance Court Refuses To Order Probe Into Bribery Allegations Against CM Vijayan, His Daughter

Case Title: Gireesh Babu v. State of Kerala & Anr.

Sharon Murder Case: Accused Greeshma Moves Kerala High Court Challenging Territorial Jurisdiction, Says Alleged Offence Took Place In Tamil Nadu

Case name: Greeshma @ Sreekutty & Others V State Of Kerala

Case number: : Crl.MC 6811/ 2023

The Kerala High Court has admitted a plea moved by prime accused in the Sharon Murder case, Greeshma, claiming that courts in Kerala lack the jurisdiction to try the case as the alleged offence took place beyond their territorial limits, in Tamil Nadu.

Justice P.V. Kunhikrishnan directed that framing of charges will be deferred for three weeks, in case not already framed.

Kerala Consumer Forum Calls For Action Against Manufacturers Who Deliberately Put Warranty Conditions In 'Fine Print' Which Public Can't Understand

Case Title: Rajeev Kumar M.R. v. M/S Classic Motors

Case Number: C.C. NO.486/2018

A District Consumer Disputes Redressal Commission in Kerala has criticised the practice of manufacturers deliberately including conditions of a product's warranty in 'fine print' which ordinary citizens are unable to comprehend.

The Bench comprising President D.B. Binu and Members V. Ramachandran and Sreevidhia T.N. said the National Consumer Commission has already held such practice as 'unfair trade practice' and urged the regulatory bodies to take action against manufacturers who engage in such practices to harm consumers.

"The deliberate inclusion of such conditions in fine print, deliberately designed to be practically illegible, raises significant concerns regarding the manufacturers' underlying motives...Even individuals with a good education might struggle to fully understand the rules and terms set by companies and manufacturers. But what about ordinary people?" it remarked.

AI Cameras Don't Violate Citizens' Privacy; All Data Encrypted And No Question Of Leakage: State Defends 'Safe Kerala Project' In High Court

Case Title: V.D. Satheeshan & Anr. v. State of Kerala & Ors.

Case Number: W.P. (C) No. 19992/2023

Defending its 'Safe Kerala Project' in the High Court which encompasses installation of AI-cameras on the streets for capturing traffic violations, the Kerala government has assured that there is absolutely no privacy violation by the Project.

"All the data related to the traffic rule violations are securely stored in the servers at the State Central Control room...programming [of AI cameras] is such that only images of violating vehicles and offenders will be captured...will be sent as encrypted data to the servers...respective data operators access their allotted violation data through VPN...challan information are in NIC servers which is under the control of the Central Government. Therefore, there arises no question of data leakage or data transfer to private servers," an affidavit filed by State's Transport Secretary claims.

Tanur Custodial Death: Kerala High Court Directs CBI To Take Over Investigation

Case title: Haris P.M. V State of Kerala

Case number: WP (Crl.) No. 860 Of 2023

The Kerala High Court directed the CBI to take over investigation into the custodial death of 30 years old Tamir Jifri at Tanur Police station in Malappuram last month.

Considering the seriousness of the offence, Justice PV Kunhikrishnan directed the Deputy Superintendent of Police Crime Branch to hand over entire case records to the central agency, within a period of one week.

Kerala High Court Advocate’s Association Passed Resolution To Support Procuring 17.73 Acres Land For HC Development And Expansion

The Kerala High Court Advocate’s Association (KHCAA) passed a resolution supporting the procurement of land for the development and expansion of the High Court of Kerala. The decision was taken in a meeting conducted by the General Body of the KHCAA on September 4.

The KHCAA has decided to support the procurement of 17.73 acres of land located near to the Mangalavanam which is under the possession of Kerala Housing Board. The general body has also decided to form a sub-committee to support the Executive Committee of the KHCAA to take immediate steps to procure the land. The special nominees of the Sub Committee are Senior Advocate N N Sugunapalan, Advocate Thomas Abraham, Advocate Babu Paul, Advocate Krishnadas P Nair, Advocate P K Santhamma and Advocate C B Sreekumar.

Kerala High Court Laments Govt's Failure To Disburse Paddy Procurement Dues To Farmers Despite Its Orders

Case name: K Sivanandhan V State of Kerala and other matters

Case number: WP(C) Nos.23267, 24835, 25152, 25410 and 25575 of 2023

The Kerala High Court recently expressed regret over the State government's failure to clear paddy procurement dues to farmers, despite repeated orders.

"The failure of the respondents to pay the amounts due to the farmers despite the orders passed by this Court cannot be countenanced. The learned Government Pleader submits that all measures shall be taken to pay the amounts due and he shall come up with positive inputs on 11.9.2023 as regards the time frame,” a bench of Justice Raja Vijayaraghavan V noted.