Kerala High Court Weekly Round-Up: November 13 – November 19, 2023
Tellmy Jolly
19 Nov 2023 12:14 PM GMT
Nominal Index [Citations: 2023 LiveLaw (Ker) 649-665Mathews A v State of Kerala, 2023 LiveLaw (Ker) 649Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram, 2023 LiveLaw (Ker) 650Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters, 2023 LiveLaw (Ker) 651Sathy M.P. & Anr. v. Sarasa & Ors. and connected matter, 2023 LiveLaw...
Nominal Index [Citations: 2023 LiveLaw (Ker) 649-665
Mathews A v State of Kerala, 2023 LiveLaw (Ker) 649
Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram, 2023 LiveLaw (Ker) 650
Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters, 2023 LiveLaw (Ker) 651
Sathy M.P. & Anr. v. Sarasa & Ors. and connected matter, 2023 LiveLaw (Ker) 652
State of Kerala v N R Shaji, 2023 LiveLaw (Ker) 653
Alex Mampuzha @ Alexander K v State Police Chief, 2023 LiveLaw (Ker) 654
United India Insurance Co. Ltd. v. Abdul Razaque O.V. & Anr., 2023 LiveLaw (Ker) 655
Platino Classic Motors India Pvt. Ltd. v. Deputy Commissioner of Central Tax and Central Excise & Ors., 2023 LiveLaw (Ker) 656
Saji Charivukala Puthenveedu v State of Kerala, 2023 LiveLaw (Ker) 657
S Jayan v State of Kerala, 2023 LiveLaw (Ker) 658
Secretary, Poovachal Grama Panchayat v. Secretary, Ombudsman for Local Self Government & Anr., 2023 LiveLaw (Ker) 659
Bastin Babu v State of Kerala, 2023 LiveLaw (Ker) 660
P.K. Uthuppu v. N.J. Varghese & Anr., 2023 LiveLaw (Ker) 662
Bobby P. Kuriakose v. State of Kerala & Ors., 2023 LiveLaw (Ker) 663
Sukumaran v. State of Kerala & Ors., 2023 LiveLaw (Ker) 664
Jeny Thankachan v. Union of India & Ors., 2023 LiveLaw (Ker) 665
Judgments/Orders
Case title: Mathews A v State of Kerala
Citation: 2023 LiveLaw (Ker) 649
The Kerala High Court has held that an externment order passed with much delay, after a period of four months in this case for instance, affects the proprietary of such order.The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen thus confined the operation of externment order and observed,
“Having adverted to the factual situation as above, as we find there is much delay affecting the proprietary of the impugned order, no interference is called for to set aside the order. However, also taking note of the fact that the order is already in operation for more than three months, we confine the operation of the externment order till today (10.11.2023).”
Case title: Ananthapuri Hospitals & Research Institute v Corporation of Thiruvananthapuram
Citation: 2023 LiveLaw (Ker) 650
The Kerala High Court issued a direction for removal of encroachments from a property of the National Highway Authority (NHAI) in front of Ananthapuri Hospitals & Research Institute, Thiruvananthapuram. Allowing the petition, Justice Bechu Kurian Thomas directed the respondents to ensure that appropriate measures were taken to prevent the encroachers from returning.
“The illegal occupation of road margins is even more evil when the occupation is in front of a hospital. The vice of such occupation has its tentacles rooted in several anti-social activities as well. Therefore, it is essential that the Corporation, the Police as well as the District Administration and even the National Highway Authorities act in unison to remove such encroachers and prevent a repetition of such offending acts.”
Case Title: Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 651
The Kerala High Court laid down that a losing minority or dissenter of a resolution taken by the Municipal cannot take recourse to the jurisdiction under Article 226 of the Constitution of India to challenge the resolution of the Municipal Council.
Justice Bech Kurian Thomas was of the considered opinion that the Municipal council cannot challenge its own decision, and if such a procedure is given the stamp of legality, the same would result in an anomalous situation, since even a sole dissenting member would become entitled to challenge the decisions of the Municipality before higher forums, which is not permitted under law.
Case Title: Sathy M.P. & Anr. v. Sarasa & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 652
The Kerala High Court refused to condone a delay of 288 days in filing a review petition on the ground that the power of attorney holder could not file the same within the stipulated time, being a chronic asthma patient undergoing treatment for the illness.
Perusing Section 5 of the Limitation Act which provides for the extension of the prescribed period in certain circumstances, the Single Judge Bench of Justice K. Babu observed: "The expression “sufficient cause” contained in Section 5 of the Limitation Act is elastic enough to yield different results depending upon the circumstances of the case. The criteria to be applied in condoning the delay in different claims may be different...The concept of reasonableness demands that the courts, while taking a liberal approach, must also consider the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence of the other, the Court shall refrain from exercising the discretionary relief. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute mandates so. The Court has no power to extend the period of limitation on equitable grounds"
Committing Magistrate Lacks Jurisdiction To Consider Application For Withdrawal From Prosecution U/S 321 CrPC: Kerala High Court
Case title: State of Kerala v N R Shaji
Citation: 2023 LiveLaw (Ker) 653
The Kerala High Court held that the Committing Magistrate has no implicit power to consider an application filed by the Public Prosecutor or Assistant Public Prosecutor under Section 321 for withdrawal from prosecution.
Justice C.S. Dias observed that the Magistrate ought to have directed such application to the Sessions Court. “once it appears to the Magistrate that the offence is exclusively triable by the Court of Session, then other than for considering matters relating to bail and remand as provided under clauses (a) to (d) of the said provision, the Magistrate has no implicit power to entertain any other matter, including an application under Section 321.”
Authorities Will Do Needful To Prevent Illegal Abandonment Of Newborn Babies : Kerala High Court
Case title: Alex Mampuzha @ Alexander K v State Police Chief
Citation: 2023 LiveLaw (Ker) 654
The Kerala High Court stated that the State Police Chief, District Police Chief (Rural) Kollam, Station House Officer (Kottarakara Police Station), and Secretary of Ummanoor Grama Panchayath (Valakom, Kollam) will do the needful to prevent the illegal abandonment of newborn babies in streets, especially at Bathani Chapel in Valakom, Kollam district.
“As far as the prayers are concerned, we are of the considered opinion that the respondent authority will do the needful.”, Chief Justice A.J.Desai and Justice V.G. Arun stated.
Case Title: United India Insurance Co. Ltd. v. Abdul Razaque O.V. & Anr.
Citation: 2023 LiveLaw (Ker) 655
The Kerala High Court laid down that a loading and unloading worker of the owner of a Tipper Lorry would also be covered under the ambit of classes of employees mentioned under clause (c) of the first proviso to Section 147(1) of the Motor Vehicles Act, 1988 ('MV Act, 1988').
"...loading and unloading of the goods transported in a goods carriage is to be treated as part and parcel of the purpose for which the goods carriage is intended to. Viewed from the above angle, it is to be held that loading and unloading of the goods in a goods carriage is inseparably connected with the usage of a goods carriage. In the above circumstances, unless and until the persons loading and unloading the goods in a goods carriage are also covered under clause (c) of the first proviso to Section 147(1) of the MV Act, the purpose of the aforesaid provision will not be served, in its true spirit," Justice C. Pratheep Kumar observed.
Case Title: Platino Classic Motors India Pvt. Ltd. v. Deputy Commissioner of Central Tax and Central Excise & Ors.
Citation: 2023 LiveLaw (Ker) 656
The Kerala High Court laid down that assessment orders could not be set aside on the ground of the Official Liquidator not having been heard while finalizing the assessment, since Section 14 of IBC does not bar finalisation of the assessment and adjudication proceedings in respect of the taxes.
"On the resolution once the reference has been admitted, there is moratorium for recovery of the tax dues but, there is no bar for finalisation of the assessment and adjudication," Justice Dinesh Kumar Singh observed.
Kerala High Court Asks 65-Year-Old Convicted For Causing Death By Negligent Driving To Do Community Service, Applies Probation Of Offenders Act
Case title: Saji Charivukala Puthenveedu v State of Kerala
Citation: 2023 LiveLaw (Ker) 657
The Kerala High Court released a 65-year old man who was convicted for rash and negligent driving which led to the death of a person as per Section 4 of the Probation of Offenders Act (Act) on grounds of good conduct. He was convicted under Sections 279 and 304A of IPC.
Justice G. Girish held that there was no legal embargo for the Court to invoke its power under the Act to release a person who was convicted under Section 304A IPC for causing death by negligence in appropriate cases to meet the ends of the justice.
Case title: S Jayan v State of Kerala
Citation: 2023 LiveLaw (Ker) 658
The Kerala High Court directed the Central Government to order the CBI to investigate the corruption allegations involving high officials of Titanium Company for entrusting its pollution abatement cum capacity expansion project involving above 256 crore rupees to M/s.Metallurgical & Engineering Consultants (India) Limited (MECON).
“Resultantly, respondent No.4 is directed to issue orders entrusting the investigation in VC 01-2015/SIU-1 of VACB (Special Investigation Unit-I), Thiruvanathapuram with the CBI. Respondent Nos.5 and 6 are directed to take over the investigation in VC 01-2015/SIU-1 of VACB (Special Investigation Unit-I), Thiruvanathapuram. The CBI shall complete the investigation within six months from this date. The investigating agency is at liberty to approach this Court seeking extension of time, if found necessary.”, Justice K. Babu stated.
CaseTitle: Secretary, Poovachal Grama Panchayat v. Secretary, Ombudsman for Local Self Government & Anr.
Citation: 2023 LiveLaw (Ker) 659
The Kerala High Court laid down that a complaint seeking refund of an amount deposited by way of earnest money deposit for participating in a public auction cannot be filed before the Ombudsman for Local Self Government.
Relying on the decisions in John.A., Ansons Group Architects v. Chanagacherry Municipality & Anr. (2011), and Kulukkalloor Grama Panchayath v. Ombudsman for Local Self-Govt. Institution & Ors. (2013), the Single Judge Bench of Justice Shoba Annamma Eapen, held:"...it is clear that a complaint seeking refund of the amount deposited by way of earnest money deposit for participating in the public auction will not come under the definition of 'allegation' or 'complaint' as enumerated in Section 271F of the Kerala Panchayat Raj Act,1994".
Case title: Bastin Babu v State of Kerala
Citation: 2023 LiveLaw (Ker) 660
‘Voter’s intention deducted from ballot paper, not by any antecedent or subsequent expressions’, observed the Kerala High Court while rejecting the vote cast by a voter who was a candidate himself. The Voter alleged that he voted for himself and his vote should be treated as valid.
Justice Bechu Kurian Thomas observed that the intention of the voter was not reflected on the ballot paper. As per Rule 11 of the Kerala Municipality Standing Committee Rules, 2000, a voter has to mark ‘X’ on the ballot paper against the name of the candidate for whom he intends to vote. The Court perused the ballot paper and observed that ‘X’ was not marked properly against his name and rejected his vote.
Case Title: P.K. Uthuppu v. N.J. Varghese & Anr.
Citation: 2023 LiveLaw (Ker) 662
The Kerala High Court laid down that the presumption under Section 139 of the Negotiable Instruments Act (NI Act) that cheque has been issued in discharge of a debt or liability, would be attracted, even if a blank cheque is voluntarily signed and handed over as payment.
Relying upon the decision in Bir Sing v. Mukesh Kumar (2019), Justice Sophy Thomas observed: "The onus to rebut the presumption under Section 139 of the N.I Act that the cheque has been issued in discharge of a debt or liability, is on the revision petitioner. Even if a blank cheque leaf is voluntarily signed and handed over by the accused, towards some payment, it would attract the presumption under Section 139 of the N.I Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
Kerala High Court Directs KELSA To Appoint Persons To 5 Vacant Posts In Permanent Lok Adalat Sanctioned By State Government
Case Title: Bobby P. Kuriakose v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 663
The Kerala High Court has directed the Kerala State Legal Services Authority (KELSA) to appoint persons to 5 posts, namely, Head Clerk, Bench Assistant, Clerical Assistant (Daily Wages), Confidential Assistant, and Office Assistant at the Permanent Lok Adalat, which had been sanctioned by the State Government vide its Order.
Justice Devan Ramachandran passed the Order on being informed by the State that vide its Order dated October 2010, the aforementioned 5 posts had been sanctioned.
Case Title: Sukumaran v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 664
The Kerala High Court reminded that the power to detain individuals ought not to be used as a punitive measure, but to secure public order, in the larger interest of the society.
"Dention order is a serious matter depriving liberty of the citizens. That means, except on valid grounds a person cannot be deprived of his liberty. The detention order, therefore,must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007(for short 'KAAPA Act'). That means, the offence in which he is involved in the past will have to be analysed to arrive at a conclusion that he will be a threat to the society when he is enlarged without detention," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed.
IBC| Mere Uploading Of Application U/S 96 Cannot Be Regarded As 'Filing' For Interim Moratorium To Operate: Kerala High Court
Case Title: Jeny Thankachan v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 665
The Kerala High Court laid down that mere uploading of an application under Section 96 of the Insolvency and Bankruptcy Code (IBC), 2016, cannot be regarded as filing of an application for the interim moratorium to operate.
Justice N. Nagaresh explained that the operation of interim and final moratorium under Sections 96 and 101 of the IBC 2016 have serious repercussions, as the legal proceedings against would be deemed to have been stayed and creditors of the debtor would not be able to initiate any legal action proceeding in respect of any debt of the debtor, once an application is filed. The Bench thus said that such provision would have to be strictly construed.
Other Significant Developments This Week
Case Title: Saiby Jose Kidangoor v. The State Police Chief & Ors.
Case Number: WP(Crl.) 110/ 2023
The Kerala High Court was informed by the State government that it would be dropping charges on the bribery allegations against Advocate Saiby Jose Kidangoor.
Advocate Saiby had been accused of collecting money from clients under the pretext of bribing High Court judges. The lawyer had approached the High Court seeking to quash the FIR that had been registered against him and to stay all further proceedings. The Single Judge Bench of Justice K. Babu was informed by the Public Prosecutor today that the investigating agency had submitted a report stating that it would be dropping the charges and further action against Advocate Kidangoor, on not finding evidence against him.
Kerala High Court Directs Removal Of Offensive Facebook Post Of Ex-Judge Against Asianet News Editor
Case title: Mrs.Sindhu Suryakumar v State of Kerala
Case number: WP(C)No.34989 of 2023
The Kerala High Court ordered the removal of the offending Facebook post made by former sub-court judge S Sudeep against the Executive Editor of Asianet News Network Sindhu Sooryakumar. The said post was made on July 03, 2023.
Justice Mohammed Nias C.P. admitted the case and passed an interim order directing the State Police authorities and Meta Platforms Inc (parent company of Facebook) to remove and to prevent further circulation of the Facebook post.
Lawyer Moves Kerala High Court Seeking Protective Legislation For Safety Of Members Of Law Community
Case title: Adv. Vishnu Sunil Panthalam v State of Kerala
Case number: WP (C) No. 36838/2023
A plea has been moved before the Kerala High Court by a lawyer seeking protective legislation for ensuring the safety of members of the law community.
Justice Devan Ramachandran yesterday remarked that the legal profession is a noble and dignified profession and enquired regarding instance of attack against lawyers within court premises. The Court has sought response from the Bar Council of Kerala.
Case Title: Manidas R.S. & Anr. v. State of Kerala & Ors.
Case Number: W.P.(C) 38082 of 2023
The Kerala High Court deferred the recovery of the disability pension amounting to Rs. 1,23,900/- from a 26-year old for a period of 3 weeks.
Justice Devan Ramachandran also called for the records leading to the issuance of the impugned order by the Bhoothakulam Grama Panchayat directing the return of the disability pension drawn by the 1st petitioner, as well as the denial of the pension and other consequential benefits due to the latter.
Case Title: Abitha P. Sunil v. State of Kerala
Case Number: WP(C) NO. 37824 OF 2023(C)
The Kerala High Court directed the District Medical Officer, Thrissur ('DMO') and the Superintendent of the Thrissur General Hospital to constitute a Medical Board to consider the request of a 22 year old law student seeking the issuance of a Certificate so as to avail the assistance of a scribe for writing her upcoming exams.
Justice T.R. Ravi passed the Order, clarifying that the necessary certificates ought to be issued to the student on or before November 18, 2023.
Case Title: C.P. Pramod v. Bar Council of India & Anr.
Case Number: W.P. (C) No. 38124/ 2023
A lawyer has approached the Kerala High Court challenging the Order issued by the Bar Council of India (BCI) interdicting State Bar Councils from initiating the process of election for constituting a new Bar council, despite the expiry of the term of the existing Bar Council.
Justice Devan Ramachandran today sought the response of the BCI and the Bar Council of Kerala (BCK) in the matter.
The Kerala High Court has sought the views of the Members of the Bar on the applications submitted by various candidates for designation as 'Senior Advocates'.
The notice issued by the Registrar General of the High Court has invited the suggestions of the members of the Bar and other stakeholders to be made within 30 days. It has further been stated that the views on the proposed names received by the Court, shall be expressed and sent in writing to the Registrar General with the name and full address of the sender. The High Court has taken a stance not to entertain any anonymous petitions or recommendations in this regard.
Case Title: Kerala Bus Transport Association & Anr. v. State of Kerala & Anr.
Case Number: W.P. (C) 37758/ 2023
The Kerala High Court stayed the State government's order mandating the installation of security cameras in private buses.
The Transport Commissioner had issued Orders, mandating all private stage carriers in the State to be fitted with functional surveillance cameras as a precondition for renewal of their Certificates of Fitness from November 1, 2023. Justice Dinesh Kumar Singh issued the afore interim order staying the same, on a plea moved by the Kerala Bus Transport Association challenging the orders issued by the State. The Bench has also sought the response of the State government and the Transport Commissioner on the matter.
Farmers Who Sell Grains To Govt Can't Be Shown As Borrowers In Paddy Receipt Sheets, Their Credit Rating Can't Be Affected : Kerala High Court
Case title: K Sivanandhan V State of Kerala and other matters
Case number: WP(C) NO. 23267 OF 2023, WP(C) NO. 24835 OF 2023, WP(C) NO. 25152 OF 2023, WP(C) NO. 25410 OF 2023, WP(C) NO. 25575 OF 2023
The Kerala High Court held that farmers who sell their paddy to the Government of Kerala through Supplyco(Kerala State Civil Supplies Corporation) under the tripartite agreement cannot be treated as borrowers. It noted that under the tripartite agreement, Supplyco has to obtain loan from the bank to make payments to the farmers, so Supplyco is the borrower and not the farmers.
Justice Devan Ramachandran clarified that farmers cannot be shown as borrowers in the paddy receipt sheet under the paddy procurement scheme and their credit rating should not be affected.
Case title: Marakkar v State of Kerala
Case number: Crl.Appeal No.598/2023 & connected cases
The Kerala High Court rejected the plea for suspension of sentence of 12 convicts out of the 13 convicts in case of brutal lynching of a mentally challenged tribal youth, Madhu, to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018.
The Division Bench comprising Justice P.B.Suresh Kumar and Justice P.G. Ajithkumar rejected the suspension of sentence of Marakkar (2nd accused), Shamsudheen (3rd accused), Radhakrishnan (5th accused), Aboobacker (6th accused), Sidhique (7th accused), Ubaid (8th accused), Najeeb (9th accused), Jaijumon (10th accused), Sajeev (12th accused), Satheesh (13th accused), Hareesh (14th accused) and Biju (15th accused) considering the nature of act of parading the deceased naked on the public road and humiliating him. It observed that the act of the accused left a blot on the social conscience and the cultural fabric of the society. It also noted that the accused persons threatened the mother of the deceased while denying suspension of sentence
Granting suspension of sentence and bail to Hussain (1st accused), the Court noted that the first accused was not a party to the group that paraded and humiliated the deceased. It observed that a separate criterion has to be adopted while considering the suspension of sentence of the first accused as he joined later and was not part of the group that captured, paraded and confined the deceased.
Case Title: Treesa K.J. v State of Kerala
Case number: WP(C)Nos.23911/2018 & Connected matters
The Kerala High Court directed the Secretary of the Cochin Corporation to verify the efficacy of ‘My Kochi’ app which is a mobile application developed by the Kochi Corporation for septage collection and to resolve public grievances regarding it.
Justice Devan Ramachandran directed the Standing Counsel of the Corporation to obtain specific instructions and to submit a report before the Court regarding the usage of the app for the purposes of septage waste collection and disposal.
Kerala High Court Seeks To Know Purpose Of Surrogacy Rules Amendment Barring Couples From Using Donor Oocytes
Case number: WP(C) 37874/ 2023
A plea has been moved before the Kerala High Court challenging the recent amendment introduced by Central Government in the Surrogacy Regulations Rules, 2022. As per the new amendment introduced in March 2023, intending couples who wants to undergo surrogacy can only use their own gametes and not donor gametes. Before the amendment, the rule permitted the usage of donor oocytes for surrogacy.
During the hearing today, Justice Devan Ramachandran sought response from the Central and State Governments to know the purpose behind the amendment. The Court admitted the matter and noted that it was a serious and important issue.
Case title: K.Mohanan v State of Kerala
Case number: WP(C) NO. 30251 OF 2023
The Kerala High Court passed an interim order directing the Expert Committee constituted by the state government to submit report on the process of paddy procurement in the state.
Justice Devan Ramachandran passed the interim order while considering a plea moved by the paddy-cultivating farmers of Palakkad district who have approached the Court seeking for measures to revamp and improve the paddy procurement system.
Case Title: Prasanna E.V. v. State of Kerala & Ors.
Case Number: W.P. (C) No. 19941 of 2023
The Kerala High Court directed the issuance of instructions to eateries to exhibit the date and time of preparation of food articles on its packaging.
The Court issued the direction while considering a plea by the mother of a 16-year-old who lost her life in 2022, upon consuming the dish, 'Shawarma'. Justice Devan Ramachandran in this regard, also directed necessary steps to be taken to create awareness in the minds of the public regarding the necessity to consume such food items within the stipulated time.
