Kerala High Court Weekly Round-Up: August 1 To August 7, 2022
Athira Prasad
7 Aug 2022 12:29 PM IST
Nominal Index [ Citation 2022 LiveLaw (Ker) 391-416 ]Olorumemi Benjamin Baba Femi v. Union of India 2022 LiveLaw (Ker) 391P.K Shanmughan v. District Collector & Ors. 2022 LiveLaw (Ker) 392 Tresa K.J v. State of Kerala 2022 LiveLaw (Ker) 393Rajesh Chandran v. M.R. Gopalakrishnan Nair & ors. 2022 LiveLaw (Ker) 394Gouri Dev S.B & Ors. v. University Grants Commission & Ors....
Nominal Index [ Citation 2022 LiveLaw (Ker) 391-416 ]
Olorumemi Benjamin Baba Femi v. Union of India 2022 LiveLaw (Ker) 391
P.K Shanmughan v. District Collector & Ors. 2022 LiveLaw (Ker) 392
Tresa K.J v. State of Kerala 2022 LiveLaw (Ker) 393
Rajesh Chandran v. M.R. Gopalakrishnan Nair & ors. 2022 LiveLaw (Ker) 394
Gouri Dev S.B & Ors. v. University Grants Commission & Ors. and connected matters 2022 LiveLaw (Ker) 395
Vasanthan B. v. Sub Inspector of Police & Ors. 2022 LiveLaw (Ker) 396
M/s Hedge Finance Pvt. Ltd v. Bijish Joseph 2022 LiveLaw (Ker) 397
Adv. Antony Raju v. State Of Kerala 2022 LiveLaw (Ker) 398
Aboobacker K.A & Ors. v. Joint Regional Transport Officer & Anr. 2022 LiveLaw (Ker) 399
Centre for Professional and Advanced Studies v. Abhitha Karun & Ors. 2022 LiveLaw (Ker) 400
Sahara Granites v. District Geologist and others 2022 LiveLaw(Ker) 401
G. Vipinan v. Union of India 2022 LiveLaw (Ker) 402
Suo Motu v. State of Kerala & Ors. 2022 LiveLaw (Ker) 403
Mannam Sugar Mills Corporative Ltd v. Deputy Superintendent of Police 2022 LiveLaw(Ker) 404
Ajayakumar & Anr. v. State of Kerala 2022 LiveLaw (Ker) 405
K.M Mohammed Kutty v. State Transport Commissioner & Ors. 2022 LiveLaw (Ker) 406
Aboobacker v. Valanchery Municipality and Others 2022 LiveLaw(Ker) 407
K.M Mohammed Kutty v. State Transport Commissioner & Ors. 2022 LiveLaw (Ker) 408
Tresa K.J v. State of Kerala 2022 LiveLaw (Ker) 409
Saju v. State of Kerala 2022 LiveLaw (Ker) 410
Jumaila Beevi v. A. Nissar 2022 LiveLaw (Ker) 411
Jose Kuruvinakkunnel @ Kuruvinakkunnel Kuruvachan v Union of India 2022 LiveLaw (Ker) 412
Fathima S & Ors. v. State of Kerala & Anr. 2022 LIiveLaw(Ker) 413
Baby S v. State of Kerala 2022 LiveLaw (Ker) 414
Panayppilly Sree Narayana Guruswami Trust v. Corporation of Kochi & Ors. 2022 LiveLaw (Ker) 415
Linson Thomas v. State of Kerala and Others. 2022 LiveLaw (Ker) 416
Judgments/Orders This Week
Case Title: Olorumemi Benjamin Baba Femi v. Union of India
Citation: 2022 LiveLaw (Ker) 391
The Kerala High Court on Monday directed the State Authorities and Secretary, Social Justice Department, to set up temporary detention centres for foreign citizens who do not possess travel documents within a period of two months. Justice Ziyad Rahman A A further clarified that the setting up of the detention centres must be done in conformity with the stipulations given by the Central Government.
Case Title: P.K Shanmughan v. District Collector & Ors.
Citation: 2022 LiveLaw (Ker) 392
The Kerala High Court on Friday ruled that a residential building which has been rented out for residential purposes cannot be treated as a commercial building under Kerala Building Tax Act, 1975.
Justice Shaji P. Chaly examined the definition of a residential building under the Act before concluding that giving out a residential building for rent does not change its characteristics to that of a commercial building.
Case Title: Tresa K.J v. State of Kerala
Citation: 2022 LiveLaw (Ker) 393
The Kerala High Court on Monday, considering the reports of flooding in the city amid heavy rainfall this morning, directed the officers of the Disaster Management Authority and the Kochi Municipal Corporation to ensure that every ground level measure is taken and completed on a war-footing so that the severe rains that are expected will not cause deleterious consequences to the citizens in the next few days.
Justice Devan Ramachandran taking into consideration of the heavy rainfall warning for the next couple of days, opined that the situation must be kept under control and the authorities of the Corporation, Disaster Management Authorities must devote sufficient time and attention to the situation as it unfolds on an hour to hour basis.
Case Title: Rajesh Chandran v. M.R. Gopalakrishnan Nair & ors.
Citation: 2022 LiveLaw (Ker) 394
The Kerala High Court recently observed that default on the part of the lawyer is a sufficient cause to condone the delay as long as there are no willful latches and negligence on the part of the petitioner.
Justice C.S. Dias added that the parties should not suffer for the inaction, omission or misdemeanour of his counsel while adjudicating on a petition filed for setting aside an order passed by Motor Vehicles Accidents Tribunal.
Case Title: Gouri Dev S.B & Ors. v. University Grants Commission & Ors. and connected matters
Citation: 2022 LiveLaw (Ker) 395
The Kerala High Court recently quashed the suspension orders issued against certain Assistant Professors of the Sree Narayana Guru College finding that they were issued prior to the report of the Internal Complaints Committee against them.
Justice Devan Ramachandran quashed the suspension orders upon learning that their suspension was premeditated while refraining from commenting further on the same.
Case Title: Vasanthan B. v. Sub Inspector of Police & Ors.
Citation: 2022 LiveLaw (Ker) 396
The Kerala High Court on Monday held that the procedure contemplated under the Code of Criminal Procedure (CrPC) to initiate prosecution against an accused can be used for offences under Section 7 of the Kerala Land Conservancy Act.
Justice Ziyad Rahman A.A added that CrPC was applicable since the Act did not provide for a specific procedure for the same. The Judge opined that the fact that offences under Section 7 were made cognizable fortified this view.
Case Title: M/s Hedge Finance Pvt. Ltd v. Bijish Joseph
Citation: 2022 LiveLaw (Ker) 397
The Kerala High Court on Tuesday held that a sole arbitrator can only be appointed either by a High Court or by an express agreement in writing between the parties in dispute, in the post-2015 amendment era of the Arbitration and Conciliation Act.
Justice C.S. Dias also ruled that a sole arbitrator appointment through any other mode will be de jure ineligible to act as an arbitrator and that such an appointment will be ex facie bad and in contravention of the Act.
Kerala High Court Stays All Proceedings Against Minister Antony Raju In Evidence Tampering Case
Case Title: Adv. Antony Raju v. State Of Kerala
Citation: 2022 LiveLaw (Ker) 398
The Kerala High Court on Wednesday stayed all the proceedings of the lower court pending against Transport Minister Antony Raju in the evidence tampering case for a period of one month.
While admitting the plea, Justice Ziyad Rahman A A observed that the offences alleged against the petitioner could only be prosecuted on the basis of a complaint by the concerned court or an authorised officer, and not by the police. Therefore, the Court found that the Minister made a prima facie case in his favour.
Case Title: Aboobacker K.A & Ors. v. Joint Regional Transport Officer & Anr.
Citation: 2022 LiveLaw (Ker) 399
The Kerala High Court on Tuesday directed the Police Commissioner of Kochi to take action against traffic police officers who were found using mobile phones while on duty.
Justice Amt Rawal also added that anyone who finds an officer using mobile phones except for emergency or official calls can report the same to the toll-free numbers which will be notified soon.
Case Title: Centre for Professional and Advanced Studies v. Abhitha Karun & Ors.
Citation: 2022 LiveLaw (Ker) 400
The Kerala High Court recently ruled that female officers appointed on a contract basis are entitled to the benefit of the Maternity Benefit Act. The Court further ruled that the term 'establishment' under the Act can be any establishment within the meaning of any law that is in force in the State in relation to establishments.
Upon examining the relevant provisions and precedents, the Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha also concluded that the Special Rules of a registered society cannot override the provisions of the Act, which is a Central Act.
Case Title: Sahara Granites v. District Geologist and others
Citation: 2022 LiveLaw(Ker) 401
The Kerala High Court on Tuesday held that the Scheme of Mining only ought to be submitted 120 days before the expiry of the first five-year period for which the Mining Plan was approved on the last occasion as per Kerala Minor Mineral Concession Rules, 2015.
Justice N. Nagaresh observed that when the language of Rule 66 is clear, there is no necessity to import the definition of the term 'year' from the Mineral Conservation and Development Rules, which has no application to minor minerals.
Case Title: G. Vipinan v. Union of India
Citation: 2022 LiveLaw (Ker) 402
The Kerala High Court on Wednesday dismissed the Public Interest Litigation challenging the steps taken to confer Indian Police Service (IPS), Kerala Cadre to Abdul Rasheed, retired Superintendent of Police, without considering his alleged criminal background.
A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the petition did not stand at this stage after UPSC pointed out that the selection process for the cadre was not complete yet.
Case Title: Suo Motu v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 403
The Kerala High Court on Wednesday directed the Pathanamthitta District Collector to monitor the upcoming Niraputhari festival scheduled to be held tomorrow at Sabarimala in the wake of the orange alert issued in the district amid heavy downpour.
A Division Bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar also ordered that in case of any exigencies, appropriate decisions shall be taken by the District Disaster Management Authority, including restrictions on entry of pilgrims.
Case Title: Mannam Sugar Mills Corporative Ltd v. Deputy Superintendent of Police
Citation: 2022 LiveLaw(Ker) 404
The Kerala High Court on Wednesday asked the State to explain how and in what manner it planned to deal with the existing permanent flag masts on various roads and public spaces, mostly erected by vested interests.
While seeking suggestions from competent authorities on how to regulate and remove such installations, Justice Devan Ramachandran criticised the political parties and unions for putting up permanent flag masts in public places without permission.
Case Title: Ajayakumar & Anr. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 405
The Kerala High Court on Tuesday held that in dowry death cases, Section 113B of the Indian Evidence Act casts a reverse burden on the accused to disprove the prosecution case. It added that if he fails to rebut the presumption under Section 113B, the court is bound to act on it.
Justice A. Badharudeen ruled that the standard of proof in cases involving reverse burden was on the basis of `preponderance of probabilities' while for the prosecution it was 'beyond all reasonable doubt'.
Case Title: Ajayakumar & Anr. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 405
The Kerala High Court on Tuesday held that merely because an accused is found guilty under Section 498A of the IPC (cruelty), does not imply that he must also be held guilty of abetting his wife's suicide under Section 306 IPC.
Justice A. Badharudeen emphasised that Sections 498A (cruelty) and 306 IPC (abetment to suicide) are independent and constitute different offences.
Case Title: K.M Mohammed Kutty v. State Transport Commissioner & Ors.
Citation: 2022 LiveLaw (Ker) 406
The Kerala High Court recently held that advocates filing writ petitions should produce the English translation of documents which are filed in a local or vernacular language while prohibiting its Registry from accepting petitions without such translation.
Justice Amit Rawal was adjudicating upon a petition filed with vernacular documents and a note by the advocate saying that the English translation will be produced as and when required by the Court. The Judge pointed out that there is no provision in the High Court Rules empowering an advocate to attach such a note in a petition.
Case Title: Aboobacker v. Valanchery Municipality and Others
Citation: 2022 LiveLaw(Ker) 407
The Kerala High Court on Tuesday directed the Registry to accept a counter affidavit in a case without insisting on an English translation of the same.
This direction assumes significance since less than a month ago, another Bench of the Court had prohibited the Registry from accepting writ petitions with vernacular documents if not accompanied by an English translation.
Judge's Prerogative To Dispense With English Translations: Kerala High Court Clarifies Earlier Order
Case Title: K.M Mohammed Kutty v. State Transport Commissioner & Ors.
Citation: 2022 LiveLaw (Ker) 408
Clarifying its earlier order mandating the filing of English Translation of all Malayalam documents, a single bench of the Kerala High Court on Thursday clarified that it is the prerogative of a judge to dispense with that requirement on a prayer to that effect being made.
Justice Amit Rawal passed the clarification order in an interlocutory application moved by Kerala High Court Advocates Association (KHCAA) seeking clarification on the Court's earlier order prohibiting the Registry from entertaining petitions without the English translation along with the paper books.
Case Title: Tresa K.J v. State of Kerala
Citation: 2022 LiveLaw (Ker) 409
The Kerala High Court on Thursday issued directions to various competent authorities to clear up the drainage system and canals to prevent inundation of the city. The Court further directed the Cochin Corporation and the Police to ensure that waste is not being dumped in the drains while ordering that if any person found violating these orders shall be dealt with under the full warrant of law.
Justice Devan Ramachandran, while enjoining the Cochin Corporation to keep the drainage system clean by periodically cleaning it and not by an annual exercise alone, observed that with proper resolve, the citizens can be spared of the unnecessary inundation every year.
Case Title: Saju v. State of Kerala
Citation: 2022 LiveLaw (Ker) 410
The Kerala High Court on Wednesday held that the non-examination of crucial witnesses or the investigating officer by itself is not a sufficient reason to disbelieve the prosecution case in toto and to acquit the accused if the evidence adduced otherwise emphatically established the prosecution case.
Justice A. Badharudeen added that although the prosecution is duty bound to examine all material witnesses to prove its case, if their presence could not be secured due to valid reasons, their non-examination may be exempted.
Order Cancelling Maintenance U/S 127 CrPC Cannot Operate Retrospectively: Kerala High Court
Case Title: Jumaila Beevi v. A. Nissar
Citation: 2022 LiveLaw (Ker) 411
The Kerala High Court on Monday ruled that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively.
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date the maintenance was cancelled.
Case Title: Jose Kuruvinakkunnel @ Kuruvinakkunnel Kuruvachan v Union of India
Citation: 2022 LiveLaw (Ker) 412
The Kerala High Court on Wednesday held that the conditions set by the Central Board of Film Certification (CBFC) for the theatrical release of a movie should be followed when it is broadcasted on OTT platforms as well.
While adjudicating upon a plea seeing to block the OTT release of the Prithviraj-starrer Malayalam movie 'Kaduva', Justice V.G Arun observed that when the CBFC has already issued directions for a movie, they should be followed even if the OTT rights have been sold.
Kerala High Court Grants 10 More Days For NEET-UG Aspirants To Opt For NRI Quota
Case Title: Fathima S & Ors. v. State of Kerala & Anr.
Citation: 2022 LIiveLaw(Ker) 413
The Kerala High Court on Thursday directed the competent authority to keep the online portal for MBBS Admission for the academic year 2022-23 open for a period of 10 more days for those candidates who intend to opt for the NRI quota.
Justice Devan Ramachandran observed that since the results of the NEET examinations have not yet been published and candidates were still allowed to opt for other or additional subjects, students who desire to opt for the NRI quota should not be withheld from doing so.
Case Title: Baby S v. State of Kerala
Citation: 2022 LiveLaw (Ker) 414
The Kerala High Court on Friday directed a dowry death case to be reopened after the Sub Inspector (SI) of Police in charge of the investigation closed it as a case of suicide.
Justice Kauser Edappagath observed that as per Section 113 B of the Indian Evidence Act (presumption as to dowry death) if it is seen that a woman was subjected to cruelty or harassment for dowry by the accused soon before her death, the mandatory presumption is that such person caused the dowry death.
Case Title: Panayppilly Sree Narayana Guruswami Trust v. Corporation of Kochi & Ors.
Citation: 2022 LiveLaw (Ker) 415
The Kerala High Court recently ruled that a building given on rent will not be exempted from property tax under Section 235 of the Kerala Municipality Act merely because the rent received is utilised for charity purposes.
Upon going through the provision, Justice Shaji P. Chaly observed that property tax exemptions only applied to buildings utilised for the specified proposes while emphasising that what is exempted thereunder was the building and not the rent received to the building, even if it was utilised for charity.
Case Title: Linson Thomas v. State of Kerala and Others.
Citation: 2022 LiveLaw (Ker) 416
The Kerala High Court on Tuesday held that the retrospective operation of a Government Order cannot be permitted particularly when it is merely an executive order, and not a legislation.
Justice Devan Ramachandran observed that the petitioner joined the University unaware of any conditions as put forth by the subsequent Government order; therefore, the retrospective operation of the order cannot be permitted.
Other Significant Developments
Five Paperless Benches To Start Functioning Today: Kerala High Court Issues Guidelines
As five benches gear up to go paperless starting today, the Kerala High Court has issued certain guidelines to be followed by the lawyers. Paperless courts have been introduced in the single benches with Bail jurisdiction and Tax matters, as well as the division bench that considers appeals from these single benches.
The Kerala High Court on Monday extended its stay on the Thiruvanathapuram vigilance court order, which had directed the State to produce the files related to the brewery allotment corruption case.
Justice K. Babu extended the stay while considering a plea filed by the State Government challenging the vigilance court order.
Kerala Court Sentences Three Accused After They Plead Guilty In Kalamassery Bus Burning Case
Case Title: Union of India v Nazeer Thadiyantavidatha @ Ummer Haji & Ors.
A court in Kerala on Monday sentenced Thadiyantavida Nazeer, a suspected Lashkar-e-Taiba operative, and his accomplice to 7 years of rigorous imprisonment in the 2005 Kalamassery bus burning case while sentencing another accused in the case to 6 years imprisonment.
NIA Special Court Judge K Kamanees had convicted them last week after the trio admitted their guilt in the case. The sentence was imposed considering their guilty plea and their young age at the time of committing the crimes.
Case Title: Biju P. Cheruman v. Election Commission of India & Ors.
The Kerala High Court on Tuesday reserved its verdict in the plea seeking a direction to declare that CPI(M) legislator and former minister Saji Cherian is not entitled to hold the office of MLA after his remarks allegedly insulting the Constitution sparked a controversy across the State.
A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly heard the parties before reserving its orders in the matter today.
Case Title: R. Baji & Ors. v. KSRTC & Ors.
The Kerala High Court on Tuesday, while hearing the plea moved by the KSRTC employees alleging that they were not being paid salary promptly, pulled up on the Employees Unions for continuing the strikes despite assuring the Court that the strikes would be called off.
Justice Devan Ramachandran opined that unless KSRTC, Government and the employees act in unison, it would be impossible to find resources to pay off the recurring liabilities of the Corporation.
Case Title: Adv. Antony Raju v. State of Kerala and Others
Transport Minister Antony Raju has approached the Kerala High Court alleging patent illegality in the procedure adopted by the Kerala High Court and by the Session Court, Thiruvanthapuram, and the Police in the evidence tampering case in which he is an accused and thereby, the continuation of the proceedings before the Court below would be a clear abuse of the process of Court.
NEET-UG | Female Candidates Forced To Remove Innerwear: Kerala High Court Seeks Response From NTA
Case Title: Asif Azad v. Union of India & Ors
The Kerala High Court has directed the National Testing Agency (NTA) to file a detailed statement explaining the manner in which the National Eligibility-cum-Entrance Test (NEET) was conducted at its Kollam centre where female aspirants were asked to remove their innerwear before attempting the exam after metallic hooks were detected during screening.
A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly issued the order on Wednesday in a PIL seeking compensation to the affected candidates and asked the NTA to produce all relevant documents to explain the inquiry conducted into the same.
Case Title: Sam Joseph v. State of Kerala and Others
The Kerala High Court on Tuesday sought answers from the State Government in a Public Interest Litigation filed challenging the arrest and detention of persons who protested against the Chief Minister by waving black flags.
A Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P Chaly has issued notice to the Kerala Government and the District Police Complaint Authority and has directed them to file counter affidavit.
Case Title: M.R. Dhanil v. District Collector and Others.
A Public Interest Litigation was filed before the Kerala High Court against the delayed decision of the District Collector, Ernakulam, to declare holiday for the Schools and Colleges in the District due to heavy rainfall. It also sought a directive to frame proper guidelines on declaring holidays to the Schools and Colleges.
The PIL has been filed by Advocate MR Danil, a lawyer practising at the High Court. The petitioner submitted that the District Collector declared holiday to all the schools and colleges in the district due to heavy rainfall at 8:45 AM on the concerned day through a social media post. Later, the District Collector clarified that the Schools that have already started functioning need not be closed.
Case Title: Arsho P.M v. State of Kerala
The Kerala High Court on Friday reserved its verdict on the bail application moved by Arsho P.M, the State Secretary of the Students' Federation of India (SFI), who was taken into custody for the second time after he violated the bail conditions imposed on him.
Justice Viju Abraham heard both the counsels extensively before reserving orders in the bail application. The Judge orally remarked that the decision will be pronounced next week.
Case Title: Adv. M. Swaraj v. K. Babu
Justice Sophy Thomas of the Kerala High Court on Friday recused from hearing the plea moved by CPI(M) leader and former MLA M. Swaraj challenging the election of Congress candidate K. Babu from the Tripunithura constituency.
When the case was taken up, Justice Thomas recused from the case citing that she was a voter of the same constituency.
Case Title: Nandu Krishnan R & Ors v. Union of India & Ors. and connected matters
The Kerala High Court on Friday directed its Registry to accept two petitions challenging the Centre's Agnipath recruitment scheme for armed forces, that were flagged as "defective" on point of maintainability.
This comes after the Kochi bench of the Armed Forces Tribunal refused to hear the challenge.
Justice Anu Sivaraman after hearing the arguments raised by Advocates Siji Antony, John Varghese and P.M Joseph, directed the Registry to number the cases and place them for admission before the bench on the next day.
