Kerala High Court Weekly Round-Up: March 4 - March 10, 2024

Nominal Index [Citations: 2024 LiveLaw (Ker) 152 – 164]

Firos C.A. Versus State Of Kerala 2024 LiveLaw (Ker) 152

Johny Padikala V P C Hassan 2024 LiveLaw (Ker) 153

Binoy Kodiyeri v. The Assistant Commissioner 2024 LiveLaw (Ker) 154

Vaisakh v State of Kerala 2024 LiveLaw (Ker) 155

Bipin Sunny v State of Kerala 2024 LiveLaw (Ker) 156

Shameera S v Secretary To Government 2024 LiveLaw (Ker) 157

The Commissioner V Nithya R Warriar 2024 LiveLaw (Ker) 158

T M Irshad v State of Kerala & Connected Case 2024 LiveLaw (Ker) 159

Darsana v Sunil 2024 LiveLaw (Ker) 160

Ashish AS v. Union of India and ors. 2024 LiveLaw (Ker) 161

Khalid v State of Kerala 2024 LiveLaw (Ker) 162

Greeshma Viji v. Chief Judicial Magistrate, Kottayam 2024 LiveLaw (Ker) 163

Jayakumar and ors. v. Union of India 2024 LiveLaw (Ker) 164 

Judgements/Orders

Kerala VAT Act Empowers Taxing Authorities To Recover Tax Dues From Directors Of Private Company: Kerala High Court

Citation: 2024 LiveLaw (Ker) 152

Case Title: Firos C.A. Versus State Of Kerala

The Kerala High Court has held that Section 39 of the Kerala Value Added Tax Act, 2003, empowers the taxing authorities to recover the tax dues from the directors of the private company if the company fails to make payment of the tax.

The bench of Justice Dinesh Kumar Singh has observed that when the taxing authorities could not recover the dues from the company, they issued notice for recovery of the said tax dues against the petitioners, who are the directors.

The petitioners are the directors of M/s Absar Buildwares Private Limited, a company registered under the provisions of the Companies Act. The company failed to make payment of the dues under the Kerala Value Added Tax Act, 2003.

Owner Of Premises Cannot Be Made Liable For Third Party Damages Due To Conduct Of Business Of Tenant: Kerala High Court

Citation: 2024 LiveLaw (Ker) 153

Case title: Johny Padikala V P C Hassan

Justice Sathish Ninan stated that the owner could at best be expected to oversee that the business was conducted by the tenant in accordance with the licence deed but could not be made liable for damages to a third party. 

“The owner of the premises could not be made liable for any damage that occurred to a third party consequent on the conduct of the business by the occupier of the premises-the second defendant. However, the position would have been different if the entrustment was for the conduct of a business which is not permitted under law.”

The first defendant (owner) is the appellant who was the owner of a building containing shop rooms. He had let out his shop room to the second defendant (tenant) for storing explosive substances.

Kerala High Court Directs Binoy Kodiyeri To File Income Tax Returns For Assessment Years 2015-22

Citation: 2024 LiveLaw (Ker) 154

Case Title: Binoy Kodiyeri v. The Assistant Commissioner

The Kerala High Court has disposed of the petition filed by Binoy Kodiyeri challenging the assessment orders issued to him by the Income Tax Department for a total of 7 assessment years from 2015-16 to 2021-22.

Binoy Kodiyeri, son of CPM politician Kodiyeri Balakrishnan, had moved a plea before the High Court alleging that the procedure adopted by the IT Department in issuing certain notices to him was illegal. He claimed the notices were issued in violation of Section 153C of the Income Tax Act which provides for the re-opening of assessments for only six preceding years.

[NDPS Act] Must Follow Procedure For Drawing, Storing, Testing & Disposal Of Samples: Kerala HC Grants Bail For Procedural Lapse By Detecting Officer

Citation: 2024 LiveLaw (Ker) 155

Case title: Vaisakh v State of Kerala

The Kerala High Court has allowed the bail application of an accused whose crime was registered for allegedly possessing narcotics and psychotropic substances in commercial quantity.

In the facts of the case, the police officer searched and seized contraband in from two different zip lock bags from the petitioner and pillion rider, and without drawing a representative sample from both the covers, the contraband was mixed and put in a single cover without the permission of a Magistrate.

Justice C S Dias found that it was mandatory to follow the procedure laid down for drawal, storage, testing and disposal of samples seized as per Section 52 A (procedure for disposal of seized narcotic drugs and psychotropic substances) of the NDPS Act and Narcotic Drugs and Psychotropic Substances (seizure, storage, sampling and disposal) Rules, 2022.

Abuse Of Process: Kerala HC Dismisses Third Anticipatory Bail Application, Warns Of Costs & Directs Accused To Surrender

Citation: 2024 LiveLaw (Ker) 156

Case title: Bipin Sunny v State of Kerala

The Kerala High Court has warned the imposition of cost to a person who approached the Court for a third time with an anticipatory bail application on the same set of facts.

Justice A Badharudeen stated that the petition was an abuse of the process of the Court and warned of imposition of cost.

“Therefore, the present petition is absolutely an abuse of process of court in the facts of the case discussed and which would deserve dismissal. In fact, imposition of cost also to be considered, but for the time being, I avoid imposition of cost.”

Prison Authorities Can't Withhold Govt Sanctioned Ordinary Leave Granted To Prisoner Citing Conduct, Subsequent Events: Kerala High Court

Citation: 2024 LiveLaw (Ker) 157

Case title: Shameera S v Secretary To Government

The Kerala High Court stated that ordinary leave granted to a prisoner under a government order could not be denied or withheld by prison authorities citing subsequent events or conduct of the convict.

“Therefore, the circumstances till the date of the said recommendation alone are noticed for the grant of leave. The said leave, once granted, by the Government, cannot be interfered with by the Superintendent of Prisons, that too based on a subsequent event. If such orders of the Government are permitted to be interfered with by subordinate officers, chances of misuse and abuse will occur.” stated Justice Bechu Kurian Thomas

Can't Be Compelled To Choose Between Motherhood & Employment: Kerala HC Directs State To Adopt Compassionate Approach Towards Transfer Of Single Mothers

Citation: 2024 LiveLaw (Ker) 158

Case title: The Commissioner V Nithya R Warriar

The Kerala High Court has observed that mothers can't be compelled to choose between motherhood and employment. It directed the State to take a compassionate approach towards the transfer of single mothers in order to respect the fundamental rights of the parent as well as of the child.

The Division Bench comprising Justice A. Muhammad Mustaque and Justice Shoba Annamma Eapen observed that the rights of children who were affected by transfers of single parent or mother were dealt insensitively these days.

“State authorities concerned are bound to deal with the situation in a compassionate manner so as to respect the rights of not only the employee concerned but also that of the child in question in a case like this. If that be so, there may not be any necessity for the court to always urge or admonish the State authorities to behave in a proportionate and reasonable manner in matters affecting fundamental rights and it may be better in the interest of things that the State authorities themselves proactively adopt a compassionate perspective in a case of this nature.”

Stray Dogs Creating Menace, Bonafide Dog Lovers Should Obtain License From Local Authorities To Protect & Keep Them: Kerala High Court

Citation: 2024 LiveLaw (Ker) 159

Case title: T M Irshad v State of Kerala & Connected Case

The Kerala High Court has addressed the issue of human-animal conflict in respect of stray dogs. It stated there was a section of people who demanded the killing of stray dogs and another section of people who were fighting to protect the stray dogs.

Justice P.V.Kunhikrishnan stated that bonafide dog lovers, instead of writing in print and visual media should come forward to help the local government institutions to protect them.

The Court stated that bonafide dog lovers could approach the local authorities with applications for obtaining licences to keep stray dogs in tune with the provisions of the Animal Birth Control Rules and Kerala Municipality Act.

Ordering 'Pittance Amount' As Maintenance Violates Child's Right To Decent Living: Kerala High Court

Citation: 2024 LiveLaw (Ker) 160

Case title: Darsana v Sunil

The Kerala High Court has stated that ordering 'pittance' by way of maintenance amount violates the right of a child to a decent living. It stated that Courts while ordering maintenance for children should be more cautious to ensure that the amount ordered would be sufficient to meet both ends together.

Justice P. Somarajan observed that a child cannot be left at the mercy of the father and has a valuable and substantive right to get maintenance which would meet the educational, medical and other expenses.

“Right to get maintenance to a child born in the wedlock from the father is a substantive right, for which, the child cannot be termed as at the mercy of her father. But, it is her valuable right and the father is bound to maintain the child. It should reflect the amount required for the maintenance of the child inclusive of educational expenses, medical expenses and all other expenses connected with the livelihood”, stated the Court.

Kerala High Court Closes Plea Challenging Naming Of Youth Festival As 'Intifada' Upon Being Told Name Has Been Changed

Citation: 2024 LiveLaw (Ker) 161

Case Title: Ashish AS v. Union of India and ors.

The Kerala High Court has closed a plea challenging the naming of a youth college festival to be held in the State as 'Intifiada.'

The plea challenging the naming of the youth festival has been closed in light of the direction of the Vice Chancellor to remove the word 'Intifada' from all banners, posters etc. 

“In light of the above note, the prayers in the writ petition are infructuous” said Justice PV Kunhikrishnan.

Plea Of Alibi Taken By Accused Need Not Be Entertained Till Prosecution Establishes Its Case Satisfactorily: Kerala High Court

Citation: 2024 LiveLaw (Ker) 162

Case title: Khalid v State of Kerala

Justice Sophy Thomas stated that a plea of alibi can be used as a shield not as a sword.

“In a plea of alibi, it is the burden of the accused to prove with absolute certainty that the presence of the accused at the scene of crime at the time of occurrence was rather an impossibility. He has to adduce positive evidence to prove the plea of alibi, and that opportunity arises only when prosecution discharges its burden to prove the incident, and the participation of the accused in that incident. Plea of alibi is a defence available for the accused, when prosecution establishes the case against him. Hence it has to be used as a shield, and not as a sword. So a plea of alibi taken by the accused need not be entertained, till prosecution establishes its case satisfactorily. Therefore the plea of alibi cannot be entertained, before prosecution is given an opportunity to establish its case.”

The petitioner was the sole accused and was alleged that he sexually assaulted 11 year old minor girl who was his close relative and was facing charges under Sections 376AB (punishment for rape on woman under twelve years of age), 376(2)(n) (punishment for committing rape repeatedly on same woman) of IPC and under the POCSO Act. He has approached the High Court to quash the final report and proceedings against him on the files of Fast Track Special Court, Pattambi.

Advocate Commissioner Is Not A Job Or Employment, It Is A Privilege Given By Court: Kerala High Court

Citation: 2024 LiveLaw (Ker) 163

Case Title: Greeshma Viji v. Chief Judicial Magistrate, Kottayam

The Kerala High Court today observed that it ought to be considered an honour to be appointed as an advocate commissioner as opposed to merely being employed for monetary remuneration.

“Commissioner is not a job, it is not employment, it is a privilege given by the court” observed the court.

Justice Devan Ramachandran was hearing a plea moved by a lawyer practising in Kottayam whose name had been struck off the list of lawyers who could be appointed as commissioners merely because she asked for her allowance (batta) to be increased.

[Article 12] Unit-Run Canteens Not Controlled Or Financed By Govt Of India, Won't Fall Under Definition Of 'State': Kerala High Court

Citation: 2024 LiveLaw (Ker) 164 

Case Title: Jayakumar and ors. v. Union of India

The Kerala High Court has stated that Unit Run Canteens do not come within the definition of 'state' as provided under Article 12 of the Indian Constitution.

“Merely because the Unit Run Canteens works under the Canteen Stores Department (CSD) and the CSD are founded by the consolidated fund of India, it cannot be said that the Unit Run Canteens is directly controlled and financed by the Government of India, they have an independent stand and are working on separate SOPs, issued from time to time” observed Justice Basant Balaji. 

The court was hearing a petition by the employees of a Unit Run Canteen functioning in Pangode Army Headquarters challenging an order to replace these employees with contract workers.

Other Updates

"Street Vendors Act A Welfare Legislation": Plea In Kerala High Court By Street Vendors Challenges Thrissur Corporation's Eviction Order

Case Number: WP(C) No. 8349 of 2024

Case Title: Shamnad N and ors. v. The Corporation of Thrissur Through Secretary and anr.

A plea has been filed at the Kerala High Court challenging a notice issued by the Thrissur Corporation directing the eviction of street vendors engaged in selling second-hand books.

The writ petition was filed by a group of street vendors, who have been engaged in selling second-hand books in the streets of Thrissur City, mainly Palace Road, for more than 30 years.

“The present notice is a gross violation of the Act and the Rules framed for the protection of the street vendors, which is a welfare legislation introduced for the betterment of the livelihood of the street vendors and to prevent harassment and illegal evictions by statutory bodies across the state” states the plea.

Kerala High Court Seeks Advocates Association's Opinion On Suggestion To Curtail Court Vacations By Judges Taking Turns To Go On Leave

In a Full Court meeting held on January 30, 2024, the Kerala High Court has decided to obtain suggestions from the Kerala High Court Advocates' Association regarding vacations in the High Court and Supreme Court.

The Ministry of Law and Justice had forwarded recommendations of the Parliamentary Standing Committee on 'Judicial Processes and their Reform' regarding vacations in the Supreme Court and High Court for consideration of the High Court.

The 133rd Report of the Parliamentary Standing Committee had endorsed the suggestion of former Chief Justice R M Lodha that instead of all Judges going on vacations at the same time, individual Judges should take leave at different times through the year. This would ensure that the Courts are constantly open and always available to hear cases.

Plea In Kerala HC By Village Resident Challenges "Derogatory & Incorrect" Portrayal Of Events In Dileep-Starrer Movie 'Thankamani'

Case Number: WP(C) No. 8866 of 2024

Case Title: Biju VR @ Biju Vaishyanparambil v. Central Board of Film Certification and ors.

A resident of the Thankamani village in Idukki district has moved the Kerala High Court seeking to quash the certificate issued to the film 'Thankamani the Bleeding Village' by the Central Board of Film Certification.

The petitioner submits that the title is defamatory and alleges the occurrence of events that never happened in the village, and as such, is against Section 5(b) of the Cinematograph Act.

Kerala High Court Confers Senior Designation On Twenty Advocates

The Chief Justice of Kerala High Court, A J Desai and Judges of the Kerala High Court have conferred Senior Designation on twenty advocates. The notification came following a Full Court meeting held on March 06, 2024.

[Masala Bonds Case] Kerala High Court Seeks Explanation From ED On Fresh Summons Issued To Fmr Finance Minister Dr Thomas Isaac

Case title: Kerala Infrastructure Investment Fund Board V Director, Thomas Issac v Deputy Director

Case number: WPC 1377/2024 & WPC 3719/2024

Justice Devan Ramachandran stated that the ED shall submit an explanation before the Court explaining the reasons behind issuing the new summons to Dr Issac. 

“…Obviously, the ED must inform why Ext P19 has been issued though I make it clear that its validity may or may not be considered by this Court in this writ petition depending upon the contentions to be taken by the parties at the relevant time.” 

The Court made this observation in a plea filed by the KIIFB challenging the summons issued by ED in connection with the masala bonds case. A separate plea was also filed by former Finance Minister Dr Thomas Isaac challenging the summons by the ED stating that he was only an individual and no specific allegations were made against him in the summons for taking oral evidence.

Kerala High Court Judges To Visit Brahmapuram Site Today To Evaluate Progress Of Bio Mining And Other General Conditions

Case title: Suo moto v. State of Kerala

Case number: WP(C) NO. 7844 OF 2023

Two Kerala High Court judges will today visit the Brahmapuram site to evaluate the progress of bio-mining and other general conditions there. The site was recently in news due to a massive fire incident.

The Special Bench comprising Justice Bechu Kurian Thomas and Justice Gopinath P said it will visit the site today (March 07, 2024) at 3.30 PM to evaluate the progress of works happening at the Brahmapuram site.

“We feel it appropriate to visit the Brahmapuram site to have first-hand knowledge of the progress of bio-mining and the general condition of the site and also to evaluate other issues mentioned in the report of the learned amici curiae. We, therefore, intend to inspect the site at 3.30 p.m., on 7.3.2024. The learned counsel appearing for various parties have agreed that the concerned officials of the Revenue Department, the Fire Force Department and the Kochi Municipal Corporation will be present at the site at 3.30 p.m. on 7.3.2024.”