Kerala High Court Weekly Round-Up: January 30 To February 5, 2023
Navya Benny
5 Feb 2023 1:23 PM IST
Nominal Index [Citation: 2023 LiveLaw (Ker) 48-62]Dr. Drisya D.T. & Ors. v. Dr. Kiran & Ors. 2023 LiveLaw (Ker) 48Bijy Paul v. The Marriage Officer and Ors. 2023 LiveLaw (Ker) 49Akshay Raj v. Ministry of Law and Justice & Ors. and other connected matters 2023 LiveLaw (Ker) 50The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors. 2023 LiveLaw (Ker)...
Nominal Index [Citation: 2023 LiveLaw (Ker) 48-62]
Dr. Drisya D.T. & Ors. v. Dr. Kiran & Ors. 2023 LiveLaw (Ker) 48
Bijy Paul v. The Marriage Officer and Ors. 2023 LiveLaw (Ker) 49
Akshay Raj v. Ministry of Law and Justice & Ors. and other connected matters 2023 LiveLaw (Ker) 50
The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors. 2023 LiveLaw (Ker) 51
Muhammed Rashid @ Rashid v. Girivasan E.K. & Ors. 2023 LiveLaw (Ker) 52
P.K. Sajeev & Ors. v. Eldho P. Mathew & Ors. 2023 LiveLaw (Ker) 53
Prakashan and Ors. v. State of Kerala 2023 LiveLaw (Ker) 54
The President, Vennoor Services Cooperative Bank v. State of Kerala & Ors. 2023 LiveLaw (Ker) 55
Suresh Kumar V State of Kerala 2023 LiveLaw (Ker) 56
S. Sivadas v. State of Kerala and other connected matters 2023 LiveLaw (Ker) 57
Sithara Indane Gas V Union of India 2023 LiveLaw (Ker) 58
K. Abdul Hameed v. Kerala State Human Rights Commission & Ors. 2023 LiveLaw (Ker) 59
xxx v. yyy 2023 LiveLaw (Ker) 60
Dr. Balachandran v. State of Kerala and other connected matters 2023 LiveLaw (Ker) 61
Dr. Anupama K.P. v. University of Calicut & Ors. 2023 LiveLaw (Ker) 62
Judgments/Orders This Week
Case Title: Dr. Drisya D.T. & Ors. v. Dr. Kiran & Ors.
Citation: 2023 LiveLaw (Ker) 48
The Kerala High Court recently held that where the parties agreed to settle a suit on the basis of an agreement entered into between themselves, without saying how the suit is to be decided or what the terms of the compromise are, no decree can be passed by the Court in such suit.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar passed the above order while dismissing the judgment rendered by the Family Court which held that all the pending cases between the parties were settled in terms of the compromise. It was noted by the Division Bench that the compromise agreement in Clause 5 merely pertained to the settlement of the case relating to setting aside of a gift deed.
"On the basis of an agreement by which the parties agreed to settle a suit, without saying how is the suit to be decided and what are the terms of compromise, no decree can be passed. If the suit is to be withdrawn also, there shall be a stipulation to that effect. Clause (5) or any other clause in Annexure A1 does not enable this Court or the Family Court, Thiruvananthapuram to dispose of any of the cases mentioned above except, O.P.No.780 of 2021. Therefore, the apprehension of the appellant that Annexures A1 and A2 would be interpreted to mean that all the aforesaid pending cases have been settled is genuine. In view of that Annexure A2 judgment is wrong", it was observed.
Case Title: Bijy Paul v. The Marriage Officer and Ors.
Citation: 2023 LiveLaw (Ker) 49
A Petition has been recently moved before the Kerala High Court challenging the provision of the Special Marriage Act, to the extent that it mandates a waiting period of 30 days after submission of the notice of intended marriage.
The Writ Petition was filed seeking a declaration that the mandatory waiting period is unconstitutional or a declaration that the 30 days period after submission of a notice of intended marriage mentioned in Section 6 and all consequential provisions under the Act are only directory and cannot be insisted upon.
Justice V G Arun noting that the matter requires detailed consideration, observed that,
"A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays. The Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnise the marriage. Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers".
Case Title: Akshay Raj v. Ministry of Law and Justice & Ors. and other connected matters
Citation: 2023 LiveLaw (Ker) 50
The Kerala High Court recently held that the claim petitions filed under the Motor Vehicles Act cannot be dismissed by the Motor Accidents Claims Tribunals (MACT) in limine, if the same have been filed beyond the period of six months.
The Single Judge Bench of Justice Amit Rawal, while setting aside the impugned orders of the MACT, observed that,
"The provisions of the Limitation Act would be applicable for entertaining the petitions for claiming the compensation even beyond the period of six months, for, by taking into consideration, Rule 17 of Annexure XIII framed under Rule 150A of the Central Motor Vehicles Rules 1989. The limitation to entertain the claim petition cannot be restricted to six months as there is no provision in the Act excluding the applicability of provisions of Section 29(2) of the Limitation Act."
Case Title: The Secretary, Sree Avittom Thirunal Hospital v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 51
The Kerala High Court recently held that the authority under the Payment of Gratuity Act cannot condone the delay in filing an appeal by entertaining an application under Section 5 of the Limitation Act.
Justice Amit Rawal, interpreted Sections 5 and 29 of the Limitation Act, as well as Section 7(7) of the Payment of Gratuity Act. The Court noted that as per Section 7(7) of the Payment of Gratuity Act, limitation to file an appeal against the order of the authority is 60 days, condonable by another 60 days subject to the explanation of prevention by giving a sufficient cause and not beyond.
"...it is evident that the legislature while enacting sub Section 7 of Section 7 specifically excluded the application of limitation Act by providing the limitation of appeal for a period of 60+60 days. Otherwise, the limitation to file an appeal under the schedule of the limitation Act is thirty (30) days. Thus for all intends and purposes, there cannot be any condonation of delay by taking the aid of the aforementioned provisions by entertaining an application under Section 5 of the Limitation Act", it observed.
Even If Driver Is Drunk, Insurer Liable To Third Party: Kerala High Court
Case Title: Muhammed Rashid @ Rashid v. Girivasan E.K. & Ors.
Citation: 2023 LiveLaw (Ker) 52
The Kerala High Court held that Insurance Company would be liable to initially compensate a motor accident victim, even if the condition in policy against driving of vehicle in an intoxicated state is violated by the driver.
The Single Judge Bench of Justice Sophy Thomas observed,
"Undoubtedly, when the driver is in an inebriated state, certainly, his consciousness and senses will be impaired so as to render him unfit to drive a vehicle. But the liability under the Policy is statutory in nature and so the Company is not liable to be exonerated from payment of compensation to the victim".
Case Title: P.K. Sajeev & Ors. v. Eldho P. Mathew & Ors.
Citation: 2023 LiveLaw (Ker) 53
The Kerala High Court recently delved upon the scope of enquiry and competency of the Rent Controller to decide on disputes pertaining to the claim of permanent tenancy under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed that as per the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Rent Control Court has the jurisdiction to consider the question.
"...the Rent Controller has to prima facie satisfy that the denial of title or the claim of permanent tenancy is bona fide. It is after recording prima facie satisfaction on bona fides of the dispute, the Rent Controller can direct the landlord to sue for eviction of the tenant in a Civil Court. It is then for the Civil Court to decide on a title and pass a decree for eviction on enumerated grounds under the Act, if the Civil Court is satisfied with the title of the landlord", it was observed.
Case Title: Prakashan and Ors. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 54
The Kerala High Court has said that only the Assistant Director Of Wild Life Preservation or Assistant Conservator of Forests authorised by the State Government are competent to record confession statements under Wild Life (Protection) Act, 1972.
Granting pre-arrest bail to three accused who have been booked for offences punishable under the Act, Justice A. Badharudeen observed that the legal question is emphatically clear that the competent persons to record and receive evidence are Assistant Director, Wild Life Preservation or Assistant Conservator of Forests authorised by the State Government in this regard and no other officer/officers below their rank.
"Any officer not below their rank cannot have the power to do any acts provided as (a) to (d) [Section 50(8)] and if anything done by the officer below the rank is a nullity and has no legal effect. Be it as may, the confession recorded by the Forest Ranger is a nullity and the same has no legal effect," the court said.
Case Title: The President, Vennoor Services Cooperative Bank v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 55
The Kerala High Court recently held that merely because a complaint had been filed before the Minister of Co-operation alleging misappropriation of funds and maladministration by the Managing Committee members of the Primary Agricultural Co-operative Society, which was then routed to the Joint Registrar through the Registrar of Co-operative Societies, who thus ordered inspection, it could not be said that the latter had acted under dictation of the Minister.
Justice V.G. Arun, while dismissing a petition alleging that the Joint Registrar had acted under dictation, observed that,
"...the Minister has only made an endorsement, asking the Registrar to look into the matter and the Registrar forwarded the complaint to the Joint Registrar for taking appropriate action. As such, there is no element of dictation in the endorsement made by the Minister. Similarly, merely by reason of the Registrar having forwarded the complaint with a direction to do the needful, the discretion vested with the Joint Registrar under Section 66 of the Act is not taken away".
Case Title: Suresh Kumar V State of Kerala
Citation: 2023 LiveLaw (Ker) 56
The Kerala High Court recently refused to grant bail to a man booked under Sections 22(c), 27 A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of commercial quantity of MDMA. The bail application was filed by the 9th accused in a crime registered on the files of Excise Range Office, Ernakulam for possession of 1.085 Kgs of MDMA that was discovered at Marhaba Apartment, Vazhakala.
Justice A. Badharudeen while dismissing the bail application observed that the rider under Section 37 of the NDPS Act would apply for possession of commercial quantity of contraband and that bail can only be granted if there are reasonable grounds for believing that the accused is not guilty of the offence and that he will not commit any offence if released on bail.
Case Title: S. Sivadas v. State of Kerala and other connected matters
Citation: 2023 LiveLaw (Ker) 57
The Kerala High Court in a significant judgment held that where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, of the same with the assistance of counsel, to ascertain the similarities and dissimilarities, and not merely a casual or routine glance.
Justice K. Babu, passed the order and observed that,
"In a case where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, if necessary, with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The judgment shall contain the reasons for any conclusion based on a comparison of the handwriting/signature if the Court proceeds to record a finding thereon. Conclusions arrived based on a casual or routine glance, or perusal shall not be relied on to enter into a finding leading to the conviction of an accused".
Case Title: Sithara Indane Gas V Union of India
Citation: 2023 LiveLaw (Ker) 58
The Kerala High Court recently held that the sanction of the district collector is not required for initiating prosecution under Section 7 of the Essential Commodities Act, 1955.
Justice Murali Purushothaman said that under Section 7 of the Act, the power to impose penalty is vested with the court and it is not for the District Collector to decide whether a person has committed offence under the Act warranting penal action.
"No sanction of the District Collector is necessary for initiating prosecution under Section 7 of the Act,” said the court.
Kerala High Court Sets Aside State Human Rights Commission's Order On Land Dispute
Case Title: K. Abdul Hameed v. Kerala State Human Rights Commission & Ors.
Citation: 2023 LiveLaw (Ker) 59
The Kerala High Court has set aside Kerala State Human Rights Commission's 2016 order directing authorities to take steps to restore a piece of land for the purposes of a public well.
The issue related to dispute of a land measuring 7.30 ares — the land had been purchased by one Abdul Hameed; while the re-survey showed that the property is 7.30 Ares, the sale deed reflected that only 6.52 was in the name of the purchaser.
In 2015, a complaint was filed by residents of Sakariya Ward, Alapuzha before the Commission that the excess land had been set apart by the earlier owner for construction of a well. The well has been demolished and the Municipal Secretary has given permission for filing it and to construct a building there, it was alleged. The Commission had ruled that since the earlier landlord had given up the land for a public well, steps have to be taken to restore the same. It had directed Additional Tahsildar to submit a report to this effect within one month, and the Municipal Secretary Alappuzha to take steps to stop the construction that was being carried out in the excess land. The order was challenged before the high court by the land purchaser.
The Division Bench of Chief Justice S. Manikumar and Justice Murali Purushothaman said: "....from a reading of the order made in HRMP No. 2294 of 2015 dated 03.06.2016, it is apparent that the said order has been passed solely after taking note of the reports of the Additional Tahsildar, Ambalappuzha as well as the Municipal Secretary, Alappuzha. There is no reference in the impugned order as to whether the writ petitioner has been given an opportunity to explain or rebut the averments made in the complaint. Therefore, in our view, violation of natural justice is per se evident".
Case Title: xxx v. yyy
Citation: 2023 LiveLaw (Ker) 60
The Kerala High Court said the law is well settled that an agreement by which a wife waives her right of maintenance under Section 125 of CrPC is an agreement against public policy and the same is ab initio void and not enforceable.
"Therefore, the claim for allowance of maintenance by the wife cannot be disputed or denied on the basis of a void agreement and the wife is entitled to get maintenance ignoring the said void agreement," said Justice A. Badharudeen.
Cause Title: Dr. Balachandran v. State of Kerala and other connected matters
Citation : 2023 LiveLaw (Ker) 61
The Kerala High court has observed that a mere deviation from normal professional practice or an accident or untoward incident is not enough to prove medical negligence. Gross and culpable negligence beyond a reasonable doubt needs to be established for a medical professional to be convicted for criminal negligence, said the court.
A single bench of the court was hearing criminal appeals by three doctors and three nurses convicted by a lower court under sections 304A and 201 read with Section 34 of India Penal Code, 1860 for medical negligence. They were sentenced to simple imprisonment for a year for the offence under section 304A r/w 34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC.
Justice Kauser Edappagath while acquitting the accused persons noted that the action of the medical professional should be the proximate or direct cause of death of the patient to establish a case of medical negligence and such evidence is lacking in the case. According to the court, nothing was brought on record to show gross and culpable negligence on part of the medical professionals.
“There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action.”
Case Title: Dr. Anupama K.P. v. University of Calicut & Ors.
Citation: 2023 LiveLaw (Ker) 62
The Kerala High Court has held that the reservation procedure followed by the Calicut University by earmarking roster points for persons with disabilities, and providing them with vertical reservation instead of horizontal, as being faulty and illegal, and also violative of Rule 15 of Part II Kerala State and Subordinate Service Rules (KS & SSR). Such reservation had resulted into reduction of the number of posts for Ezhavas, Thiyyas and Billavas (ETB) communities.
The Division Bench of Justice P.B. Suresh Kumar and Justice Sophy Thomas also found the procedure to be violative of the principles laid down in Indra Sawhney v. Union of India (1992), wherein the Apex Court had stated that while effecting the reservations in favour of category of persons like 'persons with disabilities', it would be obligatory on the part of the employer to ensure that the percentage of reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes remains intact.
"It is seen that on account of the faulty procedure adopted by the University, candidates belonging to ETB Communities who were otherwise entitled to 9 posts in a process of selection for filling up of 63 vacancies, could get only 8 posts. That apart, the procedure adopted by the University is violative of Rule 15 of Part II KS & SSR also, for the same is contrary to the rotation turns provided for in the Annexure to Part II KS & SSR. In terms of the said Annexure, the rotation turns for ETB Communities are 2, 14, 18, 28, 34, 42, 54, 58 and 62 and on account of the introduction of additional slots in the roster, the turns of ETB communities have been changed to 3, 15, 19, 30, 36, 44, 57 and 61. When a percentage of reservation is fixed in favour of a category by allotting reserve points in a roster, the same are to be filled from among the members of that reserved category only," the court held.
Other Significant Developments
The Bar Council of Kerala on Monday decided to initiate suo motu disciplinary proceedings against Advocate Saiby Jose Kidangoor, the President of the Kerala High Court Advocates Association, who is now facing allegations of having taken money from clients in the name of bribing judges. The Bar Council took the decision in the emergency meeting convened on Monday. In the meeting presided over by the Chairman of the Bar Council of Kerala, Advocate K.N. Anilkumar, the Council decided to issue a show-cause notice to the lawyer.
The Kerala Bar Council also received from the Union Law Ministry a complaint made to the Union Law Minister in this regard. Since the letter had no clarity regarding the identity of the complainants, the Council decided to seek further information from the Ministry.
The Ernakulam Central Police Station registered First Information Report (FIR) against the President of the Kerala High Court Advocates Association, Advocate Saiby Jose Kidangoor, in respect of allegations against him pertaining to taking money from clients in the name of bribing judges. Offences under Section 7(1) of the Prevention of Corruption Act, 1988 and Section 420 of the Indian Penal Code have been invoked in the FIR. The FIR has been registered with the approval of the State Police Chief.
As per the Press Note issued by the State Police Media Centre, a Special Investigation Team (SIT) will investigate the case.
The Executive Body of the Kerala State Higher Education Council (KSHEC) has decided to constitute a Committee for conducting a detailed study for the framing of a separate legislation for regulating or controlling the activities of educational consultancy services in Kerala.
By an order dated January 31, 2023, the Vice-Chairman of KSHEC has accorded sanction for the constitution of the committee.
Case Title: Kerala Chamber of Commerce and Industry v. State of Kerala and Malayalavedi v. State of Kerala
The Kerala High Court on Thursday directed that the properties of those persons who have no connection with the Popular Front of India and which were erroneously attached by the authorities have to be 'released' to them by lifting the attachment of the properties.
"The 2nd respondent, [Home Department] Additional Secretary shall forthwith ensure that the properties of those persons who have no connection with the additional 13th respondent Organisation, which have been erroneously attached by the Revenue Recovery authorities of the State Government, are released by lifting the attachment on the said properties. The lifting of the attachment shall be evidenced by appropriate orders issued in that regard which are communicated to the persons concerned," the court said.
The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P., was informed by the Additional Secretary to Government, Home Department in an affidavit, filed in pursuance of the order dated January 24, 2023, that there had occurred erroneous attachment of some properties of persons who were not associated with the organisation as the proceedings had been done within a limited time period, and mistakes had crept in due to similarities in some of the names.
Following Noise Pollution Rules At Construction Site: Adani-Vizhinjam Port To Kerala High Court
Case Title: Bethsaida Hermitage rep. by its Managing Director v. Vizhinjam International Seaport Ltd. & Ors.
The Kerala High Court on Tuesday recorded the submission of the Vizhinjam International Sea Port Limited and Adani Vizhinjam Port Private Limited that it has been maintaining and will continue to maintain the sound levels at the construction site of the Vizhinjam International Transhipment Deepwater Multipurpose Seaport. within the limits prescribed under the Noise Pollution (Regulation & Control) Rules, 2000.
Justice Viju Abraham was hearing a writ petition filed by Bethsaida Hermitage, a resort at Vizhinjam, Thiruvananthapuram which complained about the noise pollution caused by the construction activities at the seaport led by Vizhinjam International Sea Port Limited and Adani Vizhinjam Port Private Limited, who are the respondents in the writ petition.
Case Title: Sunil N.S. v. State of Kerala
Sunil N.S., also known as 'Pulsar Suni', who is the main accused in the 2017 Actor Assault Case, has approached the Kerala High Court once again seeking bail.
The prosecution case against Suni is that in pursuance of the criminal conspiracy by actor Dileep, the former along with certain other accused had abducted and sexually assaulted the victim in a moving car in the year 2017. While Suni is the main accused in the case, Malayalam actor Dileep is a co-accused and is alleged to be the brain behind the conspiracy. There are 10 accused in the 2017 case. Offences under Sections 120 (B), 109, 342, 366, 354, 354B, 357, 376D, 201, and 212 read with Section 34 of the Indian Penal Code and Sections 66 A and 66 E of the Information Technology Act were accordingly charged against the 10 accused persons. Suni has been in jail for almost 6 years now.
When the matter came up before the Single Judge Bench of Justice P.V. Kunhikrishnan on Thursday, the Court noted that the Apex Court had vide its order dated July 13, 2022, allowed the applicant to move the High Court for bail if the trial was not concluded within reasonable time.
"Registry will get a report about the time required to dispose the Sessions Case itself," the court said while posting the matter for further consideration on February 13.
Defamation Suits To Get Cheaper In Kerala With Budget Proposal To Limit Court Fee
In a significant move, the Kerala State Government in its budget presented on 03-02-2023 proposed to limit the Court fees for filing Suit for compensation for defamation and Suit for compensation for negligent and tortious act to 1% of the claim instead of advalorem court fees. The budget proposal requires an amendment to the Kerala Court Fees and Suits Valuation Act 1959. The budget proposal when becomes law, would enable a person to approach the courts for damages for defamation and negligent and tortious Act with cheaper Court fees.
"The Court Fee Charges will be limited to 1% of the claim amount to Suit for compensation for defamation and Suit for compensation for negligent an tortious act"- the Budget proposal.
The existing provision to charge court fee on an ad-valorem basis on the claim dissuaded several affected parties from seeking civil remedies for defamation and tortious actions, as the court-fee so computed would be a hefty amount.
Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.
The Kerala High Court Advocates Association President, Advocate Saiby Jose Kidangoor, who is facing allegations of having taken money from clients in the name of bribing judges, has approached the Kerala High Court seeking to quash the FIR that had been registered against him, and to stay all further proceedings.
The Ernakulam Central Police Station had registered the FIR against Advocate Saiby, by invoking offences under Section 7(1) of the Prevention of Corruption Act, 1988 and Section 420 of the Indian Penal Code. The FIR had been registered with the approval of the State Police Chief.
Case Title: Vishnunarayanan v. The Secretary and Connected Cases
The Kerala High Court in its Special sitting on Saturday continued its hearing on the batch of petitions challenging the Travancore Devaswom Board notification inviting applications only from Malayala Bhramins for appointment as Melshanthi (chief priest) at Sabarimala-Malikappuram Temples.
The matter is being heard by the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar.
The Kerala High Court on Friday expressed its displeasure over misleading news reports regarding the meeting of Chief Justice S. Manikumar with Chief Minister Pinarayi Vijayan today. Public Relations Officer of the high court said it has come to notice that a "Section of Visual Media" is telecasting the news and "creating reasons beyond comprehension, for the same".
"I am to convey the displeasure of the High Court of Kerala in telecasting a news item with fabricated interpretations of a false nature," the High Court PRO said in a press release.
