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Kerala High Court Weekly Round-Up: August 22 - August 28, 2022
Navya Benny
29 Aug 2022 5:15 AM GMT
Nominal Index [Citation 2022 LiveLaw (Ker) 447-457]Sri Sivabalan Transports & Ors v. Hindustan Petroleum Corporation Ltd & Ors. 2022 LiveLaw (Ker) 447Mohammed Kasim H.K. v. Union Territory of Lakshadweep & Anr. 2022 LiveLaw (Ker) 448Sooraj V. Kumar v. State of Kerala 2022 LiveLaw(Ker) 449Vidya Gopan & Anr v. High Court of Kerala & Ors. 2022 LiveLaw (Ker) 450Anuvarudeen...
Nominal Index [Citation 2022 LiveLaw (Ker) 447-457]
Sri Sivabalan Transports & Ors v. Hindustan Petroleum Corporation Ltd & Ors. 2022 LiveLaw (Ker) 447
Mohammed Kasim H.K. v. Union Territory of Lakshadweep & Anr. 2022 LiveLaw (Ker) 448
Sooraj V. Kumar v. State of Kerala 2022 LiveLaw(Ker) 449
Vidya Gopan & Anr v. High Court of Kerala & Ors. 2022 LiveLaw (Ker) 450
Anuvarudeen v. Sabina 2022 LiveLaw(Ker) 451
Usha Bai & Ors v. Pandikasalya Niyas & Ors. 2022 LiveLaw (Ker) 452
Madeswari v. K. Manickam 2022 LiveLaw (Ker) 453
Anoop v. State of Kerala & Ors. 2022 LiveLaw(Ker) 454
Nisha Vellapan Nair v. The Mahatma Gandhi University & Anr. and Reka Raj v. Nisha Vellapan Nair & Anr. 2022 LiveLaw(Ker) 455
Sanskruthi Motors v. The Joint Commissioner (Appeals) II 2022 LiveLaw(Ker) 456
Noorul Islam Samskarika Sangham v. The District Collector, Malappuram & Ors. 2022 LiveLaw (Ker) 457
Judgements/Orders This Week
Transportation Of LPG Cylinders A Public Utility Service: Kerala High Court Restrains Strike
Case Title: Sri Sivabalan Transports & Ors v. Hindustan Petroleum Corporation Ltd & Ors.
Citation: 2022 LiveLaw (Ker) 447
The Kerala High Court on Friday, while declaring the transportation of LPG Cylinders to be a 'public utility service' as defined in Section 2(n) of the Industrial Disputes Act, 1947, restrained a proposed strike by members of Kannur District Fuel Employees Union. It held that no person employed in such public utility service can go on strike during the pendency of conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings.
Justice Murali Purushothaman, while observing that since conciliation proceedings were pending in the instant case, and since Section 22 prohibits strikes and lockouts during the pendency of any such conciliation proceedings, issued an interim order restraining the proposed strike on 22nd and 23rd of August, 2022, or any subsequent day during the pendency of the aforementioned proceedings.
Case Title: Mohammed Kasim H.K. v. Union Territory of Lakshadweep & Anr.
Citation: 2022 LiveLaw (Ker) 448
The Kerala High Court on Friday granted anticipatory bail to the BJP State General Secretary of Lakshadweep accused of insulting the national flag by holding it with 'saffron down'. Mohammed Kasim HK had been booked under Section 2 of the Prevention of Insults to National Honours Act, 1971.
Justice Viju Abraham granted pre-arrest bail on noting that custodial interrogation of the petitioner may not be necessary, considering the nature of allegations.
Case Title: Sooraj V. Kumar v. State of Kerala
Citation: 2022 LiveLaw(Ker) 449
The Kerala High Court on Tuesday allowed the Criminal Appeal filed by a YouTuber, who allegedly insulted a woman belonging to a Scheduled Tribe through an interview published on social media, and enlarged him on bail. Earlier this month, a Sessions Court in Kerala had dismissed his bail plea on the ground that he had intentionally telecasted the video to humiliate the woman and enlarging him on bail would send a wrong message to society.
Justice Mary Joseph, while granting bail, observed that the Lower Court was more concerned with the impact on society rather than on the purpose served by prolonging the custody.
Kerala High Court Directs Regularization Of Its Court Managers As One-Time Measure
Case Title: Vidya Gopan & Anr v. High Court of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 450
The Kerala High Court on Monday held that there can be no discrimination between the appointment of Court Managers in the High Court and the District Court, particularly when the same selection procedure is being followed for both.
A Division Bench comprising Justices SV Bhatti and Basant Balaji, while holding so, observed that merely because notifications were different for the two and the selection to the High Court was under Article 229 of the Constitution, it could not be said that selection process is different. The appellants were held to be entitled to regularization of their posts as Court Managers in the High Court as a one-time measure, accordingly.
Case Title: Anuvarudeen v. Sabina
Citation: 2022 LiveLaw(Ker) 451
The Kerala High Court recently, while setting aside two orders restraining a Muslim man from invoking irrevocable Talaq and from conducting a second marriage, held that the Courts have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be violative of their rights protected under Article 25 of the Constitution of India.
Division Bench consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be an encroachment of their constitutionally protected right.
Case Title: Usha Bai & Ors v. Pandikasalya Niyas & Ors.
Citation: 2022 LiveLaw (Ker) 452
The Kerala High Court recently, while disposing of a Rent Control Revision Petition, held that making available parking space for building visitors is a valid reason for tenant's eviction under Section 11(3) Kerala Buildings Act, 1965.
Division Bench consisting of Justice Anil K. Narendran and Justice P. G. Ajithkumar, relying heavily on the High Court's decision in similar matters, clarified that in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord.
Case Title: Madeswari v. K. Manickam
Citation: 2022 LiveLaw (Ker) 453
The Kerala High Court recently held that conducting DNA test and proving child's paternity would not be enough to prove the existence of a marriage or domestic relationship in a proceeding under Domestic Violence Act, 2005, when paternity or legitimacy in itself was not a fact in issue.
Justice Kauser Edappagath while holding so, observed that under the DV Act, what is required to be proved in order to maintain an application is that of the petitioner being an aggrieved person, and there being a domestic relationship between the parties.
Case Title: Anoop v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 454
The Kerala High Court on Friday directed the State Government and the CBSE to issue necessary orders making it mandatory for every school in the state under their control to include a "Prevention-Oriented Program on Sexual Abuse" in the curriculum.
Justice Bechu Kurian Thomas expressing his anguish at the alarming rise in the number of sexual offences committed on school children and noticing that, in many instances, the perpetrators themselves were students, observed that the voice of the victims of sexual abuse should not be suppressed, and it is only through education that the victim can be empowered to speak out.
Case Title: Nisha Vellapan Nair v. The Mahatma Gandhi University & Anr. and Reka Raj v. Nisha Vellapan Nair & Anr.
Citation: 2022 LiveLaw(Ker) 455
The Kerala High Court, on Thursday, while setting aside the impugned judgment of the Single Judge Bench, cancelled the selection of an Assistant Professor at M G University.
A Division Bench consisting of Justice P. B. Suresh Kumar and Justice C. S. Sudha, while setting aside the impugned decision of the Single Judge, quashed the selection of the second respondent and directed the University to appoint the petitioner in the place of the second respondent. It observed that the University is not empowered to make relaxations for one candidate as it would be violative of the right to equality guaranteed under Articles 14 and 16 of the remaining applicants.
Case Title: Sanskruthi Motors v. The Joint Commissioner (Appeals) II
Citation: 2022 LiveLaw (Ker) 456
The Kerala High Court has held that the officer is duty bound to consider the explanation offered by the petitioner for the expiry of the e-way bill.
The single bench of Justice Gopinath P has observed that the officer rejected the explanation offered by the petitioner by stating that no evidence of repair being carried out has been produced. The officer imposed a penalty/tax on the grounds that the petitioner had ample time to revalidate the E-way bill.
Case Title: Noorul Islam Samskarika Sangham v. The District Collector, Malappuram & Ors.
Citation: 2022 LiveLaw (Ker) 457
The Kerala High Court recently, while disallowing a petition to convert a commercial building to a Muslim place of worship, issued a direction to the State Government to close down religious places and prayer halls that were functioning illegally and without permission.
Justice P.V. Kunhikrishnan directed the Chief Secretary of State of Kerala and the State Police Chief to issue necessary orders / circulars directing all the officers concerned to see that there were no illegal functioning of any religious places and prayer halls without obtaining permission from the competent authorities as per the Manual of Guidelines and if any such religious place or prayer hall is functioning without necessary permission, to close down the same immediately. The Chief Secretary of the State of Kerala was further directed to issue necessary orders/circulars directing the competent authority as per the Manual of Guidelines to consider each application to start religious places and prayer halls strictly and the approval can be granted only in appropriate cases. In such orders, it also ought to be mentioned that that the distance to the nearest similar religious place/prayer hall is the one of the criteria while considering the application for religious places and prayer halls.
Other Significant Developments
Case Title: State of Kerala v. Civic Chandran
The Kerala Government moved the Kerala High Court challenging the anticipatory bail granted to the author and social activist Civic Chandran in a sexual harassment case. The Kozhikode Sessions Court's order passed on August 12 had created a massive social outrage as it had observations to the effect that sexual harassment complaint will not stand if the woman was wearing a "sexually provocative dress".
In the Criminal Miscellaneous Petition filed under Sections 482 read with 439(2) of the Code of Criminal Procedure, the State has challenged the findings and reasoning given by the Sessions Court as suffering from "illegality, lack of sensitivity, sobriety and perversity".
Case Title: Hotel Port Palace v. State of Kerala & Ors.
The Kerala High Court on Monday stayed the operation of an order issued by the Thiruvananthapuram district collector on August 20, directing closure of liquor shops in Vizhinjam for two days, taking into account the possibility of conflict in the context of the protests in the area. The stay is to operate till August 24, the next date of hearing.
The impugned order under Section 54 of the Abkari Act, 1977 was issued on the basis of a report by the Inspector, in light of the indefinite strike conducted under the leadership of Archdiocese of Latin Catholics, Thiruvananthapuram against the construction of International Port at Vizhinjam.
Justice Amit Rawal while staying the aforementioned order, noted that although the protests had been continuing since long, it was not at a violent stage.
Judge Who Passed 'Provocative Dress' Order In Civic Chandran's Case Transferred
The Kerala Judge who granted anticipatory bail to the writer-activist Civic Chandran and made the controversial observation that "sexual harassment case will not prima facie stand if the woman was wearing a sexually provocative dress" has been transferred.
Pursuant to the administrative Order issued by Kerala High Court on Tuesday, the erstwhile District and Sessions Judge, Kozhikode, S. Krishnakumar, has now been transferred to the post of Presiding Officer, Labour Court, Kollam. Three other judges were also transferred by the same order.
Case Title: State of Kerala v. Civic Chandran
The Kerala High Court on Wednesday, in the plea moved by the State Government challenging the anticipatory bail granted to the author and social activist Civic Chandran in a sexual harassment case, has stayed the order of the Sessions Court granting bail.
Justice Kauser Edappagath remarked that the observation of the lower under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses' cannot be justified.
Case Title: R. Baji & Ors. v. KSRTC & Ors.
The Kerala High Court, on Wednesday, in the plea moved by the KSRTC employees alleging that they were not being paid salary promptly has directed the competent authority to release the requisite amount required to the KSRTC to pay the salaries for the months of July and August along with the bonus eligible to all the employees below the managerial cadre on or before the 1st September.
Justice Devan Ramachandran expressed his discontent at the delay even after repeated orders have been passed by the Court.
Madhu Lynching Case: Kerala High Court Stays Special Court Order Canceling Bail Of 12 Accused
Case Title: Marakkar & Anr. v. State of Kerala & Anr and connected cases
The Kerala High Court on Wednesday stayed an order of the Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad, cancelling the bail granted to 12 of the 16 accused in the lynching case of tribal youth, Madhu, accused of stealing food in Attappady in February 2018.
Justice Kauser Edappagath stayed the lower court's order till 29th August, 2022 (Monday) on an appeal filed by two accused, Marakkar and Radhakrishnan.
Case Title: Abdurahiman v. State of Kerala & Ors.
The brother of journalist K M Basheer, who died in a road rage involving IAS Officer Sreeram Venkitaraman, has moved the Kerala High Court seeking a CBI probe into the incident which took place in August 2019.
In the petition moved through Advocate P.T. Sheejish, the Petitioner, who is the brother of the deceased Journalist, alleges that the accused, who is a very influential IAS Officer, had sought the help of higher Police Authorities to save him from the crime by simplifying the incident as a car accident.
Case Title: M/S Adani Vizhinjam Port Pvt Ltd & 2 Ors v. State of Kerala & 27 Ors. and Howe Engineering Projects (I) Pvt. Ltd. & 3 Ors. v. State of Kerala & 27 Ors.
The Kerala High Court on Friday directed the State Police to ensure that the law and order situation is maintained at the Vizhinjam International Seaport construction site. The direction was made while adjourning till Monday the petitions filed by M/S Adani Vizhinjam Port Pvt Ltd and its contracting company Howe Engineering Projects, seeking protection for their employees and property from those protesting against the project.
Justice Anu Sivaraman issued notices to the Respondents and observed that no private person should take the legal machinery into their hands. Thereby, the bench ordered that the concerned Station House Officer as well as the Commissioner of Police to see that law and order is maintained.
Authorities "Afraid" To Act Against Illegal Flag-Masts Erected By Political Parties
Case Title: Mannam Sugar Mills Corporative Ltd v. Deputy Superintendent of Police
The Kerala High Court on Wednesday reiterated its previous observation regarding permanent flag-masts being illegal as per the provisions of the Land Conservancy Act, and expressed its hope that the Government would come out with a policy of removing old masts and inhibiting the erection of new ones in its place.
Justice Devan Ramachandran observed that, "solely because they are put up by powerful interests, including political parties, Trade Unions and such other entities, the competent Authorities are either non-willing or afraid to act".
The Court had earlier issued a direction to the competent authority to issue circulars within the ambit of the Land Conservancy Act, suggesting the manner and mode under which the existing illegal permanent flag masts would be regulated and removed. The matter has been adjourned to September 22, 2022.
Case Title: V. Mohanlal v. State of Kerala & Ors.
Actor Mohanlal moved the Kerala High Court, challenging the order passed by JFCM, Perumbavoor, which dismissed the State Government's plea to withdraw prosecution proceedings against him in the alleged illegal possession of ivory case against him.
In the Criminal Revision Petition, the revision petitioner seeks to set aside the impugned judgment passed by the Magistrate, citing that the only ground relied upon by the Magistrate is that the validity of the certificate of ownership issued by the Government as per declaration made under Section 40(4) of the Act is still pending before the Kerala High Court in a Public Interest Litigation.
