Kerala High Court Weekly Roundup [January 10 to January 15, 2022]

1. Private Medical Colleges Collecting Annual Fees In Advance Before Completion Of Current Academic Year 'Profiteering' : Kerala High Court

Case Title: Sanju Simon & Ors v. State of Kerala & Ors    

Citation: 2022 LiveLaw (Ker) 13

While restraining private medical colleges in the State from collecting fees for any academic year other than the one currently being taught, the Court has held that collecting annual fees from students for the next year in advance when the previous year's studies have not been completed by an institution would amount to "profiteering".

A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. justified its stand observing that conceptually a fee was remuneration for a service already rendered.

2. Temporary Shift Of Residence By Itself Not A Valid Ground For Transfer Of Cases: Kerala High Court

Case Title: Meria Joseph v. Anoop S. Ponnattu

Citation: 2022 LiveLaw (Ker) 14

While considering a series of transfer petitions moved by a woman, the Court ruled that shifting from permanent residence to a temporary residence by itself is not a ground to transfer cases pending within the jurisdiction of the permanent residence of both parties.

Justice A. Badharudheen dismissed the transfer petitions observing that allowing such pleas would result in cases being transferred frequently.

3. Family Court With Territorial Jurisdiction Is The Competent Authority To Give A Child In Adoption : Kerala High Court

Case Title: Thomas P. & Anr v. State of Kerala & Ors

Citation: 2022 LiveLaw (Ker) 15

The Court recently laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. After perusing the provisions of the Juvenile Justice Act 2015, the 2014 Rules framed thereunder and the Adoption Regulations 2017, Justice M.R. Anitha observed:

"In the said circumstance, the finding of the learned District Judge that the court is not a proper forum and they have to approach the Child Welfare Committee is illegal and perverse."

4. Kerala High Court Dismisses Appeal Against Interim Order Staying GO Fixing Bottled Water Prices At ₹13

Case Title: State of Kerala & Ors v. Kerala Packaged Drinking Water Manufacturers Association

Citation: 2022 LiveLaw (Ker) 16

The Court dismissed the appeal challenging a Single Judge decision that stayed the government order fixing the price of bottled water in the State at Rs. 13 citing the State's lack of jurisdiction. During the previous hearing of the case, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly had refused to stay the single bench decision while issuing notice to the respondents.

5. Writ Jurisdiction Cannot Be Invoked To Challenge Appointment Of Arbitrator: Kerala High Court

Case Title: Subramaniyan N.N. v. Anwar C.K. & Ors.

Citation: 2022 LiveLaw (Ker) 17

The Court has held that writ jurisdiction cannot be invoked to challenge the appointment of an arbitrator since such grievances could be redressed as per the provisions of the Arbitration and Conciliation Act, 1996.

Ruling that there should not be any judicial interference in the course of the arbitral proceedings for redressal of such grievances, Justice P.B. Suresh Kumar recalled that Section 5 of the Act which begins with a non-obstante clause provides that in matters governed by Part I of the Act, there shall not be any judicial interference except where so provided in the said Part.

6. Persons With Disability Form A Homogenous Class By Themselves, Not Similar To SC/ST Community: Kerala High Court

Case Title: Sumith V. Kumar & Anr v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 18

The Court ruled that the State government was authorised to recognise classes of persons with distinct attributes and treat them differently under law while upholding that the different quantum of reservation for Scheduled Castes/Scheduled Tribes (SC/ST) and persons with disability in the NEET-2021 do not violate their right to equality.

While dismissing a petition, Justice N. Nagaresh observed that persons with disabilities constituted a separate homogenous class by themselves and that their disability was physical rather than pertaining to social backwardness.

7. Non-Commercial Associations Can Use 'Kerala', 'India' In Their Names : Kerala High Court

Case Title: Riyasudheen K. & Ors v. Inspector General of Registration & Anr.

Citation: 2022 LiveLaw (Ker) 19

The Court recently ruled that an association formed by private individuals cannot be prevented from naming after 'Kerala' or 'Bharat' or 'India' under the Emblems and Names (Prevention of Improper Use) Act, 1950 if their activities are not related to any trade or business.

Justice N. Nagaresh observed that the said Act only banned the naming of commercial entities after India or Kerala: "Since the petitioners' Association is not an Association related to any trade, business, calling or profession, it is declared that the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 cannot be applied to the petitioners."

8. Kerala High Court Strikes Down Rules 9(4A) and 9(4C) Of Municipality Rules On Property Tax Fixation

Case Title: K.P. Muhammed Ashraf v. Taliparamba Municipality & Ors.

Citation: 2022 LiveLaw (Ker) 20

The Court has set aside Rules 9(4A) and 9(4C) of the Kerala Municipality (Property Tax, Service Tax and Surcharge) Rules which prescribe fixation of property tax at a minimum of 25% over and above the tax levied for the previous year if the property tax arrived at on computation as per the Rules is less than the tax levied for the previous year.

Justice N. Nagaresh pointed out that Section 233 of the Kerala Municipality Act, 1994 does not permit the fixation of a property tax over and above the upper limit fixed by the Government.

9. 'Balance Of Convenience' To Be Considered While Deciding Interim Custody Of Seized Articles U/S 451 CrPC: Kerala High Court

Case Title: Union of India v. State of Kerala & Ors

Citation: 2022 LiveLaw (Ker) 21

Ruling that balance of convenience should be considered while deciding interim custody of seized articles under Section 451 of Code of Criminal Procedure (CrPC), the Cour released unaccounted cash amounting to Rs. 50 lakhs to the Income Tax Department. Allowing a petition filed by the Department, Justice Ziyad Rahman A. A observed that the balance of convenience was in favour of the IT department rather than Abdul Razak, the person found possessing the cash.

The Judge noted that since the Income Tax Department was a statutory authority armed with various powers under Sections 132-A, 132-B and 153A of the Income Tax Act, preference should be given to the Department in the facts and circumstances of the case.

10. Kerala High Court Grants Bail To 3 Accused In SDPI Leader Shan's Murder

Case Title: Akhil & Ors v. State of Kerala

Citation: 2022 LiveLaw (Ker) 22

The Court granted bail to three of the accused in the shocking political murder of Social Democratic Party of India (SDPI) State Secretary K.S Shan who was hacked to death in December 2021.  Justice Gopinath P. released the accused on bail citing that the only offence made out against them was under section 212 (harbouring an offender) of the Indian Penal Code (IPC).

However, the Court recorded that since the release of the accused on bail may result in a retaliatory attack and that the law and order situation is still volatile in Alappuzha district, where the attack took place.

11. Must Prove Accused Is Absconding With No Immediate Prospect For Arrest To Record Witness Deposition U/S 299 CrPC: Kerala High Court

Case Title: Mohammed Rafi & Ors v. State of Kerala & Anr. and connected matters

Citation: 2022 LiveLaw (Ker) 23

In a significant judgment, the Court ruled that before recording witness depositions under Section 299 of the Code of Criminal Procedure, it should be established that the accused has absconded and that there is no immediate prospect of arresting him. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran was called upon to answer an intriguing question on the interpretation of Section 299 of the CrPC.

The Bench added that proof of the accused absconding is a condition precedent to record witness deposition for the purpose of Section 299; enabling its use in the subsequent trial against those absconded but later apprehended.

Other Significant Developments:

1. Won't Arrest Actor Dileep Till Next Hearing Date : Kerala Police To High Court

Case Title: P Gopalakrishnan alias Dileep & Ors. v State of Kerala & Ors.

The Director-General of Prosecution T.A Shaji has given an undertaking to the Court that Malayalam actor Dileep will not be arrested till the next hearing date (January 18) in the case registered by the Kerala Police, where he has been booked for conspiring to kill police officers investigating the sensational 2017 sexual assault case.

The developments ensued in the anticipatory bail plea filed by the actor. Concurrently, Dileep is facing trial as the alleged mastermind of the abduction and the sexual assault of a female actress in a moving car in 2017.

Also Read: Allegations Of Conspiracy To Kill Police Officers A 'Mockery' : Actor Dileep To Kerala High Court In Pre-Arrest Bail Hearing

2. Malls Can't Collect Car Parking Fee : Kerala High Court Makes Prima Facie View In Lulu Mall Case

Case Title: Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd.

The Court opined that prima facie, the collection of parking fees by Lulu International shopping mall was not appropriate while adjudicating upon a couple of pleas alleging that the mall collecting parking fees from its customers was illegal.

Justice P.V. Kunhikrishnan sought a clear response from the Kalamassery Municipality on this question and posted the matter to be taken up after two weeks.

3. 'So Much For The Kerala Model': High Court Raps State Over Lack Of Maternity Wards In A Taluk Hospital

Case Title: T.M Azad v State of Kerala & Ors.

The Court came down on the State government for the deficient infrastructure reported in a hospital, despite its highly appreciated Kerala model. Criticizing the State, Justice N Nagaresh pointed out that while it claims of the Kerala model's achievements, it was 'shameful' to see that a Taluk Headquarters hospital did not have a functional maternity ward.

The Court was adjudicating upon a petition moved through Advocate R. Rajasekharan Pillai seeking directions to the relevant State authorities to launch a maternity ward in the Taluk Headquarter Hospital in Peerumedu, equipped with an operation theatre providing all facilities and instruments.

4. Kerala High Court Calls For Constant Vigilance At Sabarimala After Employees Found Stealing Cash From Bhandaram

Case Title: Suo Motu v. Travancore Devaswom Board & Ors.

The Court asked the Chief Vigilance Officer of the Travancore Devaswom Board to maintain constant vigil of the entire activity in the Bhandaram at Sabarimala, after an incident of an employee stealing cash from the Bhandaram was brought to the attention of the Court.

A Division Bench comprising Justice Anil K. Narendran and Justice P.G Ajithkumar was adjudicating upon a report filed by the Special Commissioner of Sabarimala regarding the theft of currency notes from the Bhandaram by an employee engaged in Sabarimala duty.

5. Kerala High Court Asks Centre To Clarify Its Stand On K-Rail SilverLine Project

Case Title: Muralikrishnan v. State of Kerala

The Court asked the Central government to make its stand clear regarding the K-Rail Silverline project while staying the process of laying boundary stones in violation of the Survey and Boundaries Act on the land identified for the project ahead of a social impact assessment. Justice Devan Ramachandran noted that although it is argued by the respondents that the project has been approved in principle, there was no clarity regarding the same from the Centre.

The Silver Line Project is a semi high-speed rail corridor connecting one end of the State to the other and was announced for the first time over 12 years ago by the LDF government then in power.

6. Development Of Roads To Be Done Considering The Future, Not Just Present Requirements : Kerala High Court

Case Title: M.P.Abu Swalih Koya Thangal v. State of Kerala

The Court suggested that the State government should consider designing roads for the future- amidst all the ongoing discussion about the future with K-Rail project SilverLine. While adjudicating upon a plea alleging that a 14 km stretch of a road development project was being done with a reduced width citing financial constraints, Justice Devan Ramachandran orally remarked:

"When you speak about the K-Rail project, you talk about the future. I am happy that someone is taking account of the future. Let's talk about the future when it comes to the roads, too."