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Kerala High Court Weekly Round-Up: August 29 - September 4, 2022
Athira Prasad
5 Sept 2022 7:42 PM IST
Nominal Index [Citation 2022 LiveLaw (Ker) 456-472]Rubber Wood India Pvt Ltd & Ors v. Manojkumar P.S. & Ors. and Rubber Board v. Manojkumar P.S. & Ors. 2022 LiveLaw (Ker) 456James Robert Edward Peirce & Ors. v. Anna Mathew & Ors. 2022 LiveLaw(Ker) 457Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors. 2022...
Nominal Index [Citation 2022 LiveLaw (Ker) 456-472]
Rubber Wood India Pvt Ltd & Ors v. Manojkumar P.S. & Ors. and Rubber Board v. Manojkumar P.S. & Ors. 2022 LiveLaw (Ker) 456
James Robert Edward Peirce & Ors. v. Anna Mathew & Ors. 2022 LiveLaw(Ker) 457
Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors. 2022 LiveLaw(Ker) 458
Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2022 LiveLaw (Ker) 459
Fathima Thazkiya O v. National Medical Commission and Connected Cases 2022 LiveLaw(Ker)460
Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors. 2022 LiveLaw (Ker) 461
State Tax Officer & Anr Vs. Baiju A.A 2022 LiveLaw(Ker) 462
xxxx v. xxxx 2022 LiveLaw (Ker) 463
S. Krishnakumar v. State of Kerala 2022 LiveLaw(Ker) 464
Sudheer Ram S. & Ors. v. KSRTC & Ors. 2022 LiveLaw (Ker) 465
Howe Engineering Projects (I) Pvt. Ltd. & Ors. v. State of Kerala & Ors. and M/S Adani Vizhinjam Port Pvt Ltd & Ors v. State of Kerala & Ors. 2022 LiveLaw Ker 466
Jahir Hussain v. State of Kerala & Anr. 2022 LiveLaw(Ker) 467
Manager, Malankara Syrian Catholic Colleges & Ors v. Dr Reshmi P.R. & Ors and other connected cases 2022 LiveLaw (Ker) 468
A. Krishnan v. The Kerala State Co-operative Marking Federation Ltd 2022 LiveLaw(Ker) 469
Shaju@Shaju v. State of Kerala & Anr. 2022 LiveLaw (Ker) 470
General Convenor, Kerala State School Kalolsavam, 2017-2018 & Anr v. Arundhathi Krishna J. & Anr., and connected cases 2022 LiveLaw (Ker) 471
K. M Basheer v. Rajani K.T & Ors and Connected cases 2022 LiveLaw(Ker) 472
Judgments/Orders This Week
Case Title: Rubber Wood India Pvt Ltd & Ors v. Manojkumar P.S. & Ors. and Rubber Board v. Manojkumar P.S. & Ors.
Citation: 2022 LiveLaw (Ker) 456
The Kerala High Court has made it clear that the shareholder of a company cannot be made an independent party in a dispute between the company and its workmen.
The observation was made in connection with a dispute between Rubber Wood India Pvt Ltd and its workmen, whereby the Rubber Board, being a shareholder of the company, was arrayed as a party Respondent by the workmen.
The Court held that the company, established under Central legislation namely Rubber Act, 1947, is an instrumentality of the Central Government, and accordingly the dispute falls under Section 10(2A)(1)(d) of the Industrial Disputes Act, 1947. It added that since the Rubber Board was only a shareholder in the said company, it could not be impleaded as a party in adjudication of a dispute between the workmen and their employers in relation to management of the Company.
Justice Amit Rawal, while disposing the two writ petitions that were filed on common questions of fact and law, further observed that where an Interim Resolution Professional has been appointed, if proceedings before the Tribunal were not midway, the workmen could file their claims before the former who then, ought to adjudicate their claims strictly as per the Regulations.
Case Title: James Robert Edward Peirce & Ors. v. Anna Mathew & Ors.
Citation: 2022 LiveLaw(Ker) 457
The Kerala High Court recently held that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".
A Division Bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that citizenship or domicile of the father of a child, or the fact that rightly or wrongly the child had acquired a foreign passport, will have no bearing in determining the jurisdiction.
Case Title: Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors.
Citation: 2022 LiveLaw(Ker) 458
The Kerala High Court recently, while disposing of two Writ Petitions, held that an Occupancy Certificate cannot be denied on the ground that the land where the building is constructed is a paddy land or wetland in respect of a building which was constructed as per a valid building permit issued prior to the coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland 2008 Act (30.12.2017).
Justice N. Nagaresh observed that when an application for an Occupancy Certificate in respect of a building which was constructed as per a valid building permit issued prior to 30.12.2017 is made, the Authorities cannot take umbrage under Section 14 to deny an Occupancy Certificate to the building on the ground that the land where the construction was made is a paddy land or wetland.
Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors.
Citation: 2022 LiveLaw (Ker) 459
Recently, the Kerala High Court expressed its doubt as to the validity of an earlier Single Judge decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others, which had held that it was only the Principal District Judge which had the jurisdiction to grant leave for institution of a suit under Section 92 of the Code of Civil Procedure (CPC).
On noting that the above decision does not lay down the correct position of law, Justice C.S. Dias was of the considered view that the question regarding whether the Court of the Subordinate Judge is competent to grant leave to institute a suit and, thereafter, to try and dispose of the suit under Section 92 of the Code of Civil Procedure 1908, was to be decided by a Bench of two or more Judges, and thus, directed the Registry to place the same before the Chief Justice who may take the appropriate decision in this regard if deemed necessary.
Case Title: Fathima Thazkiya O v. National Medical Commission and Connected Cases
Citation:2022 LiveLaw(Ker)460
The Kerala High Court recently held that the direction issued by the National Medical Commission(NMC) that the fee in 50% of seats in Private Medical Colleges and Deemed Universities should be at par with the fees in Government medical colleges will not apply in the State of Kerala.
The Court held so taking note of the fact that there is no concept of "Government Quota" or "Management Quota" in private medical colleges in Kerala and that the fees of private medical colleges are fixed by a statutory body, Admission and Fee Regulatory Committee(AFRC).
Experience Cannot Substitute Duration Of Service Required By UGC Norms: Kerala High Court
Case Title: Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors.
Citation: 2022 LiveLaw (Ker) 461
The Kerala High Court on Tuesday observed that when the UGC norms mandate 8 years of continuous service in the post of 'Reader' in order to be eligible for promotion as 'Professor', then the experience gained by a person in a post which had been gained by him pursuant to an appointment which had hitherto been declared as 'illegal' by the Court would not be sufficient to act as substitute in order to make the person eligible.
The Division Bench comprising of Justice P.B. Suresh Kumar and Justice Mary Joseph, in the review petition before it, observed that when there are norms stipulating the qualifications which have been laid down by the UGC and which are unambiguous, the Court could not substitute the same with its own interpretation to benefit a person.
No Legislative Competence To Amend KVAT Act After Introduction Of GST Act: Kerala High Court
Case Title: State Tax Officer & Anr Vs. Baiju A.A
Citation: 2022 LiveLaw(Ker) 462
The Kerala High Court has held that legislative competence to amend the Kerala Value Added Tax (KVAT) Act after the introduction of the GST Act is impermissible.
The division bench of S.V.Bhatti and Justice Basant Balaji has observed that the amendment made by the Finance Act of 2018 to the provisions of the erstwhile KVAT Act to enable the department to initiate assessment proceedings in respect of assessments pending as of March 31, 2018 was illegal because the KVAT Act has already been repealed.
Youngsters Avoiding Marriage To "Enjoy Free Life", Live-In Relationships On Rise : Kerala High Court
Case Title: xxxx v. xxxx
Citation: 2022 LiveLaw (Ker) 463
In a recent judgment, the Kerala High Court expressed concerns that the consumerist culture of 'use and throw' has affected matrimonial relationships. The Court lamented that the younger generation is seeing marraige as an "evil", which has to be avoided to "enjoy free life" and that live-in relationships are on the rise.
Remarking upon the sanctity that the institution of marriage has been attributed with, the Division Bench composed of Justice A. Muhammed Mustaque and Justice Sophy Thomas, observed as follows
"Kerala, known as God's own Country, was once famous for its well knit family bondage. But the present trend it seems to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children. The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquility of our social life, and our society will have a stunted growth".
Case Title: S. Krishnakumar v. State of Kerala
Citation: 2022 LiveLaw(Ker) 464
The Kerala High Court on Thursday dismissed the plea moved by the Principal District and Sessions Judge, Kozhikode, challenging his transfer order to the post of Presiding Officer, Labour Court, Kollam. The transfer was made after the judge made the controversial "sexually provocative dress" remark in the order granting bail to Civic Chandran in a sexual harasssment case.
The bench of Justice Anu Sivaraman observed that the petitioner, who is a member of higher judicial service, cannot be said to be prejudiced in any manner for his posting as Presiding Officer of Labour Court, which is a post born from the cadre of District Judge.
Case Title: Sudheer Ram S. & Ors. v. KSRTC & Ors.
Citation: 2022 LiveLaw (Ker) 465
The Kerala High Court recently observed that where there is an anomaly between the pay scale drawn by a senior and a junior in service, particularly when both had been promoted to the same post, albeit from different levels, the competent authority would have to engage its mind as to the circumstances up to the same.
Justice Devan Ramachandran made the observation while dealing with a case in which KSRTC employees who had been promoted to the post of Superintendent from that of Upper Division Clerk (Selection Grade) were drawing less salary when compared to another employee who had been promoted to the same post from the post of Special Assistant/Senior Assistant.
Case Title: Howe Engineering Projects (I) Pvt. Ltd. & 3 Ors. v. State of Kerala & 27 Ors. and M/S Adani Vizhinjam Port Pvt Ltd & 2 Ors v. State of Kerala & 27 Ors.
Citation: 2022 LiveLaw Ker 466
The Kerala High Court on Thursday allowed the petition for police protection to the employees and workmen of M/S Adani Vizhinjam Port Pvt Ltd., and its contracting company, Howe Engineering Construction, and also for free ingress and egress to the construction site.
Justice Anu Sivaraman while allowing the petition, observed that there is
"no doubt in my mind that the right to agitate or protest against any matter including the apathy or neglect of the Government cannot confer any right either on respondents 11 to 25 or any of the protesters to contend that they have a right to obstruct the activities which have due permissions or to trespass into the project site and cause damage to public property".
Case Title: Jahir Hussain v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 467
The Kerala High Court recently, while acquitting a murder convict and reversing the order of the trial court, highlighted the need for a speedy trial and proper assistance to prisoners for filing appeals to avoid the long periods of incarceration.
Division Bench consisting of Justice K. Vinod Chandran and Justice C Jayachandran, pointing out the distressing aspect of the continued incarceration of under-trial prisoners and the delay occasioned in conducting trials, opined that High Court could issue directions to Trial Courts to take up matter based on the date of incarceration of convicts.
Case Title: Manager, Malankara Syrian Catholic Colleges & Ors v. Dr Reshmi P.R. & Ors and other connected cases
Citation: 2022 LiveLaw (Ker) 468
The Kerala High Court recently observed that where reasonable likelihood of 'bias' in a selection process is alleged on the ground of relationship, the degree of closeness or 'nearness' of the relationship between the parties ought to be 'so great' as to give a reasonable apprehension of bias.
The Division Bench composed of Justice P.B. Suresh Kumar and Justice C.S. Sudha while observing so, held that in the instant case, a mere relationship between the candidate selected (9th respondent) and a member of the Selection Committee (8th respondent), would not be sufficient to assume bias.
State Expected To Adhere To Rule Of Law: Kerala High Court Quashes Appointment Of Marketfed MD
Case Title: A. Krishnan v. The Kerala State Co-operative Marking Federation Ltd
Citation: 2022 LiveLaw(Ker) 469
The Kerala High Court on Thursday quashed the appointment of S. K Sanil as the Managing Director of MARKETFED (Kerala State Co-operative Marketing Federation Limited).
A Division Bench consisting of Justice A. K. Jayashankaran Nambiar and Justice Mohammed Nias C.P. found Sanil to be ineligible and unqualified to hold the post, citing that he was not an officer in the IAS cadre in the senior time-scale at the relevant point in time.
Case Title: Shaju@Shaju v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 470
While reiterating the settled law on conviction based on sole testimony of prosecutrix in a rape case, the Kerala High Court on Thursday observed, that in the conservative, tradition bound, non-permissive society like that of ours, none would make a false accusation of rape; braving ostracism, loss of face, social stigma and shame.
The remarks were made while contrasting the Indian law relating to sexual assault trials as against the laws and practices prevalent in the UK.
Case Title: Shaju@Shaju v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 470
The Kerala High Court on Thursday while setting aside the conviction under the POCSO Act of a father who had repeatedly committed rape on his daughter, observed that the certificate issued by the school Headmistress could not be regarded as sufficient evidence in order to establish the age of the victim.
The Division Bench comprising of Justice K. Vinod Chandran and Justice C. Jayachandran thus observed,
"The register maintained in the school is not a public document and the certificate issued by the Headmistress cannot be considered to be a secondary evidence. We hence find that there is no proof of age as established by the prosecution".
Case Title: General Convenor, Kerala State School Kalolsavam, 2017-2018 & Anr v. Arundhathi Krishna J. & Anr., and connected cases
Citation: 2022 LiveLaw (Ker) 471
The Kerala High Court recently held that any question as to whether the Lok Ayukta or Upa Lok Ayukta can entertain any complaint regarding any grievance or allegation, would have to be ascertained according to the factual circumstances, and on a case to case basis and no law can be laid down by the Court in this regard.
The Division Bench comprising of Justice S. Manikumar and Justice Shaji P. Chaly further directed the authorities under various statues such as Upa Lok Ayukta, Human Rights Commission, Juvenile Justice Board, Civil Courts etc., to take note of and abide by the directions issued by the same court in another case W. P. (C) No. 18950 of 2018, while dealing with any complaints as to grievance or allegation in respect of the participation of students in cultural or other events at District or State Levels.
Case Title: K. M Basheer v. Rajani K.T & Ors and Connected cases
Citation: 2022 LiveLaw(Ker) 472
The Kerala High Court on Friday held that in cases of alleged offences under the SC/ST Act, an application for anticipatory bail can be filed only before the Special Court or the Exclusive Special Court constituted under the Act and not before the High Court.
Justice Bechu Kurian Thomas further clarified that High Court has neither concurrent jurisdiction under section 438 CrPC nor original jurisdiction under section 482 Cr.P.C. for grating bail for offences under SC/ST Act and can only exercise appellate jurisdiction under Section 14A.
Other Significant Development
Vizhinjam Port: Kerala High Court Asks Whether Protesting Fishermen Can Halt Construction Work
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 Monday questioned if the fishermen, protesting against construction of Vizhinjam International Seaport by the Adani group, can halt a Project which had all the requisite permissions.
While considering 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, Justice Anu Sivaraman orally remarked, that protests cannot be quelled; it can happen. But can it hold up the work is the only question.
Case Title: V. Mohanlal v. State of Kerala & Ors.
The Kerala High Court on Monday, before posting the case for hearing again after the Court vacation, observed that the petitioner in this case, actor Mohanlal, had no locus standi before the Court.
Justice Mary Joseph, observed that under under the CrPC, no such power for withdrawal of proceedings had been granted to the accused.
"If the State appears, and had filed the application, the Court could have considered. But the accused cannot do so. If the Court decides otherwise that the accused has such a right, so many accused would appear before the Court for withdrawal", it was orally observed.
Case Title: S. Krishnakumar v. State of Kerala
Principle District and Sessions Judge, Kozhikode, S. Krishnakumar, who was recently transferred to the post of Presiding Officer, Labour Court, Kollam, subsequently after passing the 'Provocative Dress' remark in the Civic Chandran's Case, has approached the Kerala High Court challenging his transfer order.
In the petition moved through Advocates Dinesh Mathew J. Muricken, Ahammad Sachin K, Nayana Varghese and Vinod S. Pillai, the Petitioner challenges the transfer from the post over a controversial remark about the dressing of a sexual assault survivor in a judicial order alleging that the transfer is illegal, arbitrary and violative of Article 14 of the Constitution.
Case Title: Muralikrishnan v. State of Kerala & connected matters
The Kerala High Court on Monday directed the Government to look into the criminal cases registered against the citizens who opposed laying of survey stones for the K-Rail Project.
Justice Devan Ramachandran observed that even the Government has realised that a project of this nature cannot be executed without the support and help of the citizenry as a whole which is evident from their subsequent orders directing the SIA to be complete only electronically or via geotagging.
Case Title: S. Krishnakumar v. State of Kerala
The Kerala High Court on Tuesday reserved order in the plea moved by the Principle District and Sessions Judge, Kozhikode, challenging his transfer order to the post of Presiding Officer, Labour Court, Kollam, subsequently after passing the 'Provocative Dress' remark in the Civic Chandran's Case.
Justice Anu Sivaraman observed that the transfer is not a deputation as it is well within the cadre of the Principle District Judge.
Kerala Govt Has No Obligation To Pay KSRTC Salaries: State's Appeal In High Court
Case Title: State of Kerala v. R. Baji
The Kerala Government has approached the High Court challenging the order directing it to release requisite funds to KSRTC to clear salary dues of its employees for the months of July and August, along with the bonus eligible to those below the managerial cadre on or before the 1st September.
In the Writ Appeal moved through Special Government Pleader Advocate P. Santhosh Kumar, the State challenged the order passed by the Court on 24th August 2022, contending that the State Government has no obligation to pay salary and other allowance to the employees of the KSRTC.
Case Title: Indian Professional Nurses Association v. State of Kerala & Ors.
The Kerala High Court has sought a reply from the State regarding the salary and working conditions of nurses working in private hospitals. This comes in the plea moved by the Indian Professional Nurses Association seeking implementation of Prof. Jagadish Prasad Committee Report.
Justice P. V. Kuhnikrishnan admitted the PIL and sought reply from the Kerala Government.
The plea moved through Advocates Jose Abraham, N Ragesg, Adithyan Ezhapilly and R. Muraleedharan submits that subsequent to the Supreme Court decision, the Central Government had constituted an Expert Committee to make recommendations for the improvement of the working conditions and salaries of nurses working in private hospitals and nursing homes.
Kerala High Court Stays Single Judge Bench Direction To State Govt To Release Funds To KSRTC
Case Title: State of Kerala v. R. Baji
The Kerala High Court on Wednesday stayed an order passed by the single judge bench of the Kerala High Court directing the State directing it to release requisite funds to KSRTC to clear salary dues of its employees for the months of July and August, along with the bonus eligible to those below the managerial cadre on or before the 1st September.
The Division Bench consisting of Justice A K Jayasankaran Nambiar and Justice Mohammed Nias CP, while admitting the Writ Appeal f, has passed the stay order in the Appeal moved by the Kerala Government challenging the impugned order.
Case Title: Nirmal Infopark(India) Ltd. v. State of Kerala & Ors.
The Kerala High Court on Tuesday directed the Mahatma Gandhi University at Kottayam to ensure that it offers and conducts B.Voc. courses only on the strength of required statutory clearances, including those from the University Grants Commission and All India Council For Technical Education.
The direction was made while admitting a plea seeking detailed enquiry regarding the activities of 5 institutions in offering B.Voc. courses and courses affiliated with foreign universities to students in the State.
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement
The Kerala Infrastructure Investment Fund Board (KIIFB) on Friday submitted before the High Court that the protracted investigation against it initiated by the Enforcement Directorate had detrimentally affected its borrowing plans, which would not only jeopardize the Board's functioning but would also have the effect of stalling various developmental projects in the State.
Justice V. G. Arun has adjourned to 23rd September the two petitions challenging the summons issued by ED in connection with the probe into the financial transaction of KIIFB.
Case Title: Amal Nasim M. & Ors. v. Kerala University of Health Science & Ors.
The Kerala High Court on Friday admitted a petition filed by a group of students pursuing MBBS course in various colleges under the Kerala University of Health Sciences (KUHS), challenging the amendment to the Regulations on Graduate Medical Education,1997 by the National Medical Commission
The Amendment notified on 04.11.2019 had restricted the maximum number of attempts to clear the first Professional University examination to four. The petitioners contended that as per the earlier guidelines of the Medical Commission of India ( replaced by NMC from 2019), the course could be completed within 10 years.
Kerala High Court Refuses To Stay Proceedings In Assembly Ruckus Case
The Kerala High Court on Friday refused to stay the proceedings in the Kerala Legislative Assembly Ruckus Case.
Justice Ziyad Rahman A.A., while refusing to stay the proceedings further rejected the prayer of the accused political leaders to exempt their personal appearance in trial court.
The case involves ruckus which had happened in the Kerala Assembly in March 2015, while the CPI(M) members were protesting against the then UDF government over the bar bribery allegations against the then Finance Minister KM Mani, who was trying to present the budget speech.
Case Title: Sayeeda K. A. v. Union of India & Ors.
The Kerala High Court, on Thursday, directed the National Disaster Management Authority to formulate policy or guidelines for identifying cases of death due to the after-effect of Covid-19 vaccination and for compensating the dependants of the victims within three months.
Justice V. G. Arun observed that there are instances where persons are suspected of having succumbed to the after-effects of immunization; in such circumstances, the National Disaster Management Authority and the Ministry of Health and Family Welfare are bound to formulate a policy for identifying such cases and compensating the dependents of the victim.
