Kerala High Court Weekly Round-Up: November 14 to November 20, 2022

Nominal Index [Citation: 2022 LiveLaw(Ker) 588-602]

Dr. K.K. Vijayan v. The Chancellor and Dr G. Sadasivan Nair v. State of Kerala 2022 LiveLaw(Ker) 588

Milan Dorich v. State of Kerala 2022 LiveLaw(Ker) 589

Rishada Haris K.P. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 590

Bennat Tom V. v. Calicut University & Ors.  2022 LiveLaw (Ker) 591

K.P. Ramachandran Nair & Anr. v. State of Kerala & Anr. 2022 LiveLaw (Ker) 592

Dr Joseph Skariah v. Vice-Chancellor (Selection Committee Chairman) 2022 LiveLaw(Ker) 593

Omassery Labour Contract Co-Operative Society & Ors v. Mukkam Municipality & Ors. 2022 LiveLaw (Ker) 594

State of Kerala Rep. by Chief Secretary & Ors. v. Ravi Parameswara Raja 2022 LiveLaw (Ker) 595

 Sofikul Islam v. State of Kerala  2022 LiveLaw(Ker) 596

Akshay@Ajeesh@Ananthu v. State of Kerala & Anr and Akhila A.P. @ Lalu & Anr v. State of Kerala & Anr. 2022 LiveLaw (Ker) 597

K C Antony Versus Principal Commissioner 2022 LiveLaw(Ker) 598

 Santhosh Kumar Nair v. Suresh P. Sreedharan & Ors. 2022 LiveLaw (Ker) 599

Khaledur Rahman v. State of Kerala & Anr.2022 LiveLaw (Ker) 600

Special Tahsildar V. Union Of India 2022 LiveLaw(Ker) 601

 K. Surendran v. State of Kerala 2022 LiveLaw(Ker) 602

Orders/Judgments This Week

Kerala High Court Quashes KUFOS VC Dr Riji John's Appointment, Asks Chancellor To Form New Search Committee

Case Title: Dr. K.K. Vijayan v. The Chancellor and Dr G. Sadasivan Nair v. State of Kerala

Citation: 2022 LiveLaw(Ker) 588

The Kerala High Court on Monday quashed the appointment of the Vice-Chancellor of Kerala University of Fisheries and Ocean Studies (KUFOS), Dr. K. Riji John.

The division bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly said that the constitution of the selection committee and its recommendation in John's case was illegal. 

...we have no hesitation to hold that the selection of Dr. K. Riji John as the Vice Chancellor of the Kerala University of Fisheries and Ocean Studies, overlooking the UGC Regulations, 2018, cannot be sustained under law. We are also of the view that the Search cum Selection Committee constituted is also in violation of the UGC Regulations, 2018.

'Court Cannot Be Swayed By Public Outcry': Kerala High Court Grants Pre-Arrest Bail To 3 KSRTC Employees In Assault Case

Case Title: Milan Dorich v. State of Kerala

Citation: 2022 LiveLaw(Ker) 589

The Kerala High Court recently granted pre-arrest bail to the three Kerala State Road Transport Corporation (KSRTC) employees, who were booked in September for assaulting a man and his daughter for demanding renewal of a concession certificate for her.

The video of the incident had been leaked in the media, causing a public outcry against the incident.

Justice Bechu Kurian Thomas in the order observed that the courts must strictly confine to the allegations and the statements given by the witnesses and their legal implications.

Detaining Authority Must Be Aware That Detenu Is Already In Custody & Must Show Compelling Reasons To Pass Preventive Detention Order: Kerala HC

Case Title: Rishada Haris K.P. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 590

The Kerala High Court recently reiterated the settled position that an order of preventive detention can be passed against a person who is already in custody, subject to the condition that the detaining authority is aware of the detenu already being in detention, and secondly, that there are compelling circumstances justifying such preventive detention.

The Division Bench comprising Justice Alexander Thomas and Justice Sophy Thomas added that the detaining authority must be satisfied from the material produced before it that the detenu is likely to be released from custody in the near future whereafter, he is very likely to indulge in further prejudicial activities.

Law College Elections | Returning Officer Can Only Verify Validity Of Nomination Paper, Not Competence Of A Candidate: Kerala HC

Case Title: Bennat Tom V. v. Calicut University & Ors.

Citation: 2022 LiveLaw (Ker) 591

While dealing with a case relating to 'Class Representative' elections in the Government Law College at Kozhikode, the Kerala High Court held that the power vested in a Returning Officer is limited to verifying the validity of a nomination paper, and not determining the eligibility/ competence of a candidate.

In the instant case, Justice Devan Ramachandran observed that the Returning Officer had rejected Petitioner's nomination paper on the ground that if he won the elections, it would be a futile exercise since his classes were set to end soon. Turning down such an approach, the bench observed,

"...what the Returning Officer has actually done is not to decide the validity of the nomination, but the eligibility of the petitioner to contest the election – which the said Authority surely obtained no competence or jurisdiction to have done."

S.138 NI Act | Whether Demand Notice Issued To Correct Address Is Matter Of Evidence, Not Reason To Quash Complaint: Kerala High Court

Case Title: K.P. Ramachandran Nair & Anr. v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 592

The Kerala High Court on Tuesday refused to quash a complaint under Section 138 Negotiable Instruments Act, merely because the demand notice issued in local language was returned unserved.

Justice A. Badharudeen, observed that there is a presumption that service of notice has been effected when it is sent to the correct address by registered post. It further added,

"Issuance of notices in the correct address is a matter of evidence and, therefore, the same is not a reason to quash the complaints."

"Real Teaching Experience Needed" : Kerala HC Directs Kannur University To Re-Examine Credentials Of Priya Varghese, Wife Of CM's Private Secretary

Case Title: Dr Joseph Skariah v. Vice-Chancellor (Selection Committee Chairman)

Citation:2022 LiveLaw(Ker) 593

The Kerala High Court on Thursday allowed the plea challenging the selection of Priya Varghese, wife of K.K. Ragesh, private secretary to Chief Minister Pinarayi Vijayan as an Associate Professor at the Department of Malayalam at Kannur University and directed the competent authority of the University to reconsider the credential of the 5th respondent (Priya Varghese) and decide whether she should continue on the Rank List. On such enquiry being completed and the Rank List sufficiently modified, further action to make an appointment can be taken forward.

Lowest Bidder Doesn't Enjoy Indefeasible Right To Be Awarded Contract, Can't Approach Court Against Tender Cancellation For Valid Reasons: Kerala HC

Case Title: Omassery Labour Contract Co-Operative Society & Ors v. Mukkam Municipality & Ors.

Citation: 2022 LiveLaw (Ker) 594

The Kerala High Court on Wednesday held that even if a tender process had been validly initiated, the Municipality is vested with the authority to cancel the said process for valid reasons, and call for fresh tenders. It added that there can be no cause for illegality or impropriety being imputed to the same, if the said decision is taken after considering the various complaints before it.

The Single Bench of Justice T.R. Ravi observed,

"When the law does not recognise any indefeasible right in a lowest bidder to be awarded a contract, the petitioners cannot be heard to contend that they being the lowest bidders in a tender which was cancelled for specific reasons, are entitled to approach the Court under Article 226 of the Constitution for annulling the decision to cancel and request for directions to award the contract in their favour".

Kerala High Court Rejects State's Appeal Against Order Quashing Its Decision To Halt Grant Of Pension To Paravur Ruler's Legal Heirs

Case Title: State of Kerala Rep. by Chief Secretary & Ors. v. Ravi Parameswara Raja

Citation: 2022 LiveLaw (Ker) 595

The Kerala High Court on Wednesday held that the Constitution of India's 26th Amendment would not alter the obligation of the State under Article 295 (2) to pay annuity to the legal heirs of the Malayala Brahmin family that possessed sovereign rights over the territory of Paravur, which now falls under Ernakulam district.

The court was dealing with a matter relating to pension of the Malayala Brahmin family which had relinquished its sovereign rights over Paravur to the rule of Travancore State in 764AD, In consideration of the relinquishment, the ruler of Travancore State would pay annuity to the family. In 1971, the annuity was treated as a family pension.

Aadhaar Card Not Recognized As Document For Proof Of Date of Birth Under Juvenile Justice Act: Kerala High Court

Case Title: Sofikul Islam v. State of Kerala

Citation: 2022 LiveLaw(Ker) 596

The Kerala High Court on Thursday observed that Aadhaar card is not recognized by the Juvenile Justice (Care and Protection of Children) Act, 2015, as a document of proof of the date of birth of an accused under the Act.

Justice Bechu Kurian Thomas observed that when there is a dispute regarding the age of an accused, if a certificate from the school is available, which specifies the date of birth, that alone can be looked into for the purpose of identifying the date of birth of the alleged child under section 94(2)(i) of the JJ Act, 2015.

Application For Default Bail Filed Through E-Filing Valid, Cannot Ignore It For Want Of Physical Copy: Kerala High Court

Case Title: Akshay@Ajeesh@Ananthu v. State of Kerala & Anr and Akhila A.P. @ Lalu & Anr v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 597

The Kerala High Court on Thursday held that an application for default bail, filed timely through e-filing mode, cannot be ignored by the trial courts for want of production of physical copy of the same.

Justice A. Badharudeen, said:

"Now we are in the E-world. In many Courts e-filing is made mandatory and steps to complete mandatory e-filing in all Courts in India are on its final call. Such being the scenario, how can a court ignore an application filed through e-filing mode to hold that there was no petition filed within time for want of production of physical copy of the same within time".

Income Tax Act does not impose any limitation for filing an application for condonation of delay: Kerala High Court

Case Title: K C Antony Versus Principal Commissioner

Citation: WP(C) No. 13511 Of 2021

Citation: 2022 LiveLaw(Ker) 598

The Kerala High Court has held that Section 119(2)(b) of the Income Tax Act does not impose any limitation for the purposes of filing an application for condonation of delay.

The single bench of Justice Gopinath P. has observed that it was completely wrong on the part of the department to treat the date of filing of the application for condonation of delay as the relevant date for the purpose of considering whether it was filed within 6 years or not.

Kerala HC Deprecates Invocation Of Writ Jurisdiction Alleging 'Breach Of Duty' By Police To Register Complaint When The Dispute Is Civil In Nature

Case Title: Santhosh Kumar Nair v. Suresh P. Sreedharan & Ors.

Citation: 2022 LiveLaw (Ker) 599

The Kerala High Court on Tuesday held that a threat of illegal eviction/ trespass can be remedied by approaching a civil court. It added that High Court's writ jurisdiction cannot be invoked in such cases seeking police protection, when even the basic facts are disputed and the rights claimed cannot be established in summary proceeding under Article 226 of the Constitution.

A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran was dealing with a writ appeal preferred by a Landlord, against the Singhe Judge's order in a writ petition preferred by the tenant alleging trespass and seeking police protection against illegal eviction.

Muslim Marriages Not Excluded From POCSO Act, Physical Relationship With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Court

Case Title: Khaledur Rahman v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 600

The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.

Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.

The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436).

"With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.

Interest Not Leviable For Belatedly Deducting TDS If There Is No Liability: Kerala High Court

Case Title: Special Tahsildar V. Union Of India

Citation: 2022 LiveLaw(Ker) 601

The Kerala High Court has held that where there is no liability to deduct TDS, the mere fact that TDS was so deducted and paid to the Income Tax Department belatedly, cannot give rise to a claim for interest under Section 201(1A) of the Income Tax Act.

The single bench of Justice Gopinath P. has observed that the delay in remitting the amounts deducted as TDS arose only on account of the fact that the officer in question was deputed for election duty for the period from January 2014 to May 2014 in connection with the Lok Sabha Election of 2014.

Kerala HC Directs Chief Secretary To Consider BJP State President's Representation Against Govt Employees' Participation In CPI (M)'s Raj Bhavan March

Case Title: K. Surendran v. State of Kerala

Citation: 2022 LiveLaw(Ker) 602

The Kerala High Court on Tuesday directed the Chief Secretary to consider the representation filed by the BJP State Unit President K. Surendran against participation of government employees in CPI(M)'s demonstration outside Governor Arif Mohammad Khan's official residence.

The Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly, while disposing of the petition seeking to prevent the government from participating in the protest, refused to pass any direction. However, it directed the Chief Secretary to consider the letter submitted by the BJP State Unit President K. Surendran.

Other Significant Developments This Week

BJP State President K Surendran Moves Kerala High Court To Prevent Govt Employees, MGNREGA Workers From Participating In CPI (M)'s Raj Bhavan March

Case Title: K. Surendran v. State of Kerala

BJP State Unit President K. Surendran has approached the Kerala High Court to prevent the government employees and beneficiaries under Mahatma Gandhi National Rural Employment Guarantee Act from participating in the protest march and demonstration in front of Governor Arif Mohammad Khan's official residence on November 15.

In the petition moved through Advocate Vishnu Pradeep, Surendran has alleged that "the ruling party and its allied parties" are engaged in a mass campaign to ensure maximum participation in the protest, and strict directions have been given to their affiliated service organisations to ensure that all its members mandatorily participate in the protest march and dharna.

Kerala High Court Appoints Amicus Curiae In Petitions Challenging Age Limit Under Assisted Reproductive Technology Act

Case Title: P. Sheeba Paul v. Union of India & Ors. and Connected Cases

The Kerala High Court on Monday appointed an amicus curiae to assist the court in a batch of petitions challenging the upper age limit under the Assisted Reproductive Technology (Regulation) Act 2021. By virtue of Section 21(g) of the ART Act, the maximum age for men has been prescribed as 55 years, and the age limit prescribed for women is 50 years.

Justice VG Arun appointed Advocate Ramola Nayampally as amicus curiae in the matter.

Kerala High Court Stays Proceedings In Cheating Case Against Bollywood Actor Sunny Leone, Husband Daniel Weber

Case Title: Karenjit Kaur Vohra @ Sunny Leone & Ors v. State of Kerala & Ors.

The Kerala High Court on Wednesday stayed the criminal proceedings in a 2019 FIR against Bollywood actor Sunny Leone, her husband Daniel Weber and an employee of theirs.

Justice Ziyad Rahman A.A. passed the order staying the criminal proceedings until the next date of hearing, today in a plea moved by the actor.

They have approached the Kerala High Court with a petition seeking quashing of the proceedings pending against them before an Ernakulam Court in connection with an FIR accusing them of cheating and criminal breach of trust.

Kerala HC Seeks Explanation From Sessions Court For Keeping Bail Application Pending Despite Its Directions

Case Title: Muhammed Jashid P. A. v. State of Kerala

The Kerala High Court recently sought a report from a Sessions Court on the circumstances under which the bail application of an accused was kept pending for a period of two days despite its directions to dispose of the matter on the date of surrender itself.

Justice Ziyad Rahman A A has directed the Registry to call for a report from the Assistant Sessions Court, Kasargod and has posted the matter for further consideration on 25th November 2022.

Kerala High Court Calls For Strict Action Against Unauthorised Use Of National And State Emblems On Vehicles

Case Title: Suo Motu v. State of Kerala

The Kerala High Court on Tuesday directed the police and the Enforcement Wing of Motor Vehicles Department to take strict action against the unauthorised use of national and state emblems as well as government boards on vehicles.

The division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar said many vehicles ply in the state carrying the name board 'Government of India', 'Government of Kerala', 'Kerala State', 'Government Vehicle', etc. to mislead the Police, the Enforcement Officers of the Motor Vehicles Department, by giving an impression that the vehicles are owned by a government department.

Kerala High Court Takes Suo Motu Case Over Child Falling Into Drainage, Directs Cochin Corporation To Slab Uncovered Drains In 2 Weeks

The Kerala High Court on Friday took suo motu cognizance of the incident wherein a three-year old child had fallen into an uncovered drain in Panampilly Nagar on Thursday evening. The child had been walking with his mother when he fell into the drain, and had a narrow escape due to the timely intervention of his mother and other local persons.

Justice Devan Ramachandran was informed about the incident today by the Amici Curiae S. Krishna and Vinod Bhat. The matter was listed today on an emergent basis, and the appearance of the Secretary of Cochin Corporation was called, since the upkeep of such spaces were exclusively vested with them.

Air India Tells Kerala High Court It Is Not 'State' Under Article 12 Following Disinvestment; Not Amenable To Writ Jurisdiction

Case Title: Augusthykutty v. Cochin International Airport Ltd. & Ors.

Following the policy decision taken by the Central Government to disinvest 100% of its holdings in Air India and transfer of its share to Tata Group (M/S Talace Pvt. Ltd.) in January this year, the Kerala High Court has been informed that the airline company is no more a 'State' within the purview of of Article 12 of the Constitution.

In an affidavit filed through its Assistant Manager (Personnel), the company said since it has ceased to be a government company, a writ petition is not maintainable against it.