Kerala High Court Weekly Round-Up: October 24 To October 30, 2022
Athira Prasad
31 Oct 2022 8:32 AM IST
Nominal Index [Citation 2022 LiveLaw(Ker) 537-554]Self Financing Arts & Science College Managements Welfare Association (KSMA) v. State of Kerala & Ors and Sharaf Arts and Science College Committee v. State of Kerala & Ors. 2022 LiveLaw (Ker) 537 Dr. R. Prakash v. State of Kerala & Ors. 2022 LiveLaw (Ker) 538 Dhanlaxmi Bank Ltd v. K.N. Madhusoodanan & Ors. and Dhanlaxmi...
Nominal Index [Citation 2022 LiveLaw(Ker) 537-554]
Self Financing Arts & Science College Managements Welfare Association (KSMA) v. State of Kerala & Ors and Sharaf Arts and Science College Committee v. State of Kerala & Ors. 2022 LiveLaw (Ker) 537
Dr. R. Prakash v. State of Kerala & Ors. 2022 LiveLaw (Ker) 538
Dhanlaxmi Bank Ltd v. K.N. Madhusoodanan & Ors. and Dhanlaxmi Bank Ltd. v. P.K. Vijayakumar @ Puthalathkuttan Nair Vijayakumar & Ors 2022 LiveLaw (Ker) 539
Case Title: B. Madhukumar Vs Commercial Tax Officer 2022 LiveLaw(Ker) 540
Jancy Joseph v. State of Kerala & Ors. 2022 LiveLaw(Ker) 541
State Information Commission v. C. V. Rajendran and Ors. 2022 LiveLaw (Ker) 542
P.V. Mathai v. State of Kerala & Anr 2022 LiveLaw (Ker) 543
Jollyamma V. Thomas v. State of Kerala & Ors. 2022 LiveLaw(Ker) 544
Sabu Thomas v. The Chancellor, Mahatma Gandhi University & Ors. and Other Connected Cases 2022 LiveLaw (Ker) 545
Renoj R.S. v. State of Kerala & Anr 2022 LiveLaw (Ker) 546
Dr. Nicky K. Xavier v. State of Kerala & Ors. and Dr. Nicky K. Xavier v. Dr. P. Balakrishnan & Ors 2022 LiveLaw (Ker) 547
M.M. Madhavan Namboodiri & Ors v. The Tahsildar Thamarasseri & Ors. 2022 LiveLaw (Ker) 548
Abeyson P John v. Station House Officer & Ors. 2022 LiveLaw(Ker) 549
Cardinal Mar George Alencherry v. State of Kerala 2022 LiveLaw (Ker) 550
Mathew Joseph v. The Registrar of Co-operative Societies & Ors. 2022 LiveLaw(Ker) 551
George Jose P.J. v. State of Kerala 2022 LiveLaw (Ker) 552
Shilpa Nair v. State of Kerala (Deleted) 2022 LiveLaw (Ker) 553
Sandra Stephen v. State of Kerala & Ors. 2022 LiveLaw (Ker) 554
Orders/Judgments This Week
Case Title: Self Financing Arts & Science College Managements Welfare Association (KSMA) v. State of Kerala & Ors and Sharaf Arts and Science College Committee v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 537
The Kerala High Court recently set aside the Administrative Sanction issued by the Government to Kannur University in favour of TKC Education and Charitable Society (TKC) for starting a new Arts and Science College for the academic year 2022-23. The court said the Vice Chancellor of the University had acted beyond the scope of his powers while considering TKC's application, which admittedly was incomplete.
Justice Devan Ramachandran said the VC has been statutorily vested with great powers when it requires immediate action, enabling him to exercise any power vested with the Syndicate or Academic Council of the University.
Case Title: Dr. R. Prakash v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 538
The Kerala High Court recently directed the state government to reconsider its decision in a case where an application for reimbursement was rejected because Apollo Hospital, where the patient had gone for treatment in 2011, was a non-recognized hospital under the Medical Reimbursement Scheme and no prior permission had been obtained for availing the treatment there.
Justice Devan Ramachandran said the incident happened in 2011 "when surely our systems were far behind from what we see today". No decision could have been taken by the government without making a proper investigation as to whether treatment availed of by the petitioner was absolutely necessary or whether he had any alternative in Kerala, said the court.
Case Title: Dhanlaxmi Bank Ltd v. K.N. Madhusoodanan & Ors. and Dhanlaxmi Bank Ltd. v. P.K. Vijayakumar @ Puthalathkuttan Nair Vijayakumar & Ors
Citation: 2022 LiveLaw (Ker) 539
The Kerala High Court on Tuesday held that writ petitions cannot be instituted against the matter of rejection of nomination for election to the post of Director in the Board of a private banking company.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly while in appellate jurisdiction found that the writ petitions before the Single Judge were not maintainable. it observed, it may be true that the Dhanalakshmi Bank, though a private Bank, may be discharging certain duties with respect to receipt of deposits and issue of loans and other financial activities. But the said duty cast upon a private Bank like the appellant, even assuming it as a public duty, has nothing to do with the election to the Director Board of the banking company, whose activity is confined to the realm and control of the shareholders of the appellant company.
VAT Defaulter Not Liable To Pay Collection Charges If Opts Amnesty Scheme: Kerala High Court
Case Title: B. Madhukumar Vs Commercial Tax Officer
Citation: WP(C) No. 14030 Of 2020
Citation: 2022 LiveLaw(Ker) 540
The Kerala High Court has held that collection charges are not payable if a VAT defaulter opts for the Kerala Amnesty Scheme, 2017.
The single bench of Gopinath P. has noted that the petitioner had settled the liabilities in terms of the provisions contained in the Amnesty Scheme of 2017, which was introduced by the provisions contained in the Kerala Finance Act 2017.
Case Title: Jancy Joseph v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 541
Quashing a preventive detention order under Kerala Anti-Social Activities (Prevention) Act (KAAPA), the High Court recently said the authorities should have considered the option of bail cancellation in respect of the first case against the detenu before resorting to the extreme measure of preventive detention.
The court clarified that it was not saying that such an option should "necessarily be mechanically pursued" in all cases, but asserted that consideration of such an option was highly crucial and relevant to the case before it.
The Division Bench consisting of Justice Alexander Thomas and Sophy Thomas said, "We have to bear in mind that, at the end of the day, what is involved is the curtailment of the personal liberties and freedoms of the detenu, which are guaranteed in terms of the safeguards contained in Articles 21 and 22 of the Constitution of India."
Case Title: State Information Commission v. C. V. Rajendran and Ors.
Citation: 2022 LiveLaw (Ker) 542
The Kerala High Court has held that when a complaint is filed before the State Information Commission under Section 18 of the Right to Information Act for illegal denial of information, it may impose a penalty on the errant Public Information Officer. However, the provision does not empower the State Commission to direct the PIO furnish such information to the requester.
A Division Bench consisting of Justice Anil K. Narendran and Justice P. G. Ajithkumar observed that in case of withholding of information, the aggrieved cannot resort to Section 18 of the Act to get access to the information since the Statute provides a complete statutory mechanism to a person who is aggrieved by a refusal to provide information under Section 19.
Case Title: P.V. Mathai v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 543
Quashing the criminal proceedings against a 58-year-old man from Ernakulam, the Kerala High Court has said that Section 353 of the Indian Penal Code would not be attracted when there is no allegation of use of assault or criminal force, or in absence of an accusation that such act was done to deter the public servant from discharging her officials duty.
The accused had been booked under Section 353 IPC ( Assault or criminal force to deter public servant from discharge of his duty) for entering Karimannoor Agriculture Office in April 2019, abusing the office staff in loud voice and "deterring" the agriculture officer from discharging her official duty.
Case Title: Jollyamma V. Thomas v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 544
The Kerala High Court on Wednesday suggested the General Education Department of the State to constitute an expert committee to address issues plaguing its internal functioning such as recruitment, database management, etc.
It noted apparent absence of accurate data on students, instructors, and non-teaching personnel in the State's Government and Aided Schools, eventually leading to increased disputes and consequential litigation.
It suggested the Department to form a committee comprising former DGEs with experience, experts from State Government initiatives such as KITE (Kerala Infrastructure and Technology for Education), Digital University Kerala, Indian Institution of Information Technology and Management-Kerala and legal professionals with practical knowledge.
Justice Raja Vijayaraghavan V. was of the view that a substantial amount of litigation can be avoided if the department implements some improvements by leveraging the power of information and communication technology.
Case Title: Jollyamma V. Thomas v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 544
The Kerala High Court on Wednesday observed that there is no ban on the continuation of disciplinary proceedings by Educational Authorities against teachers who are subject to criminal prosecution for offence of child harassment or offences under the Protection of Children from Sexual Offenses Act.
The Court noted that as soon as a teacher is arrested for a crime, they are suspended from their service. However, in the majority of instances, educational authorities do not complete the disciplinary processes under a mistaken impression that they cannot proceed against the teacher until the Criminal Court has rendered a decision in the pending case.
Case Title: Sabu Thomas v. The Chancellor, Mahatma Gandhi University & Ors. and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 545
In a special sitting held on Monday, the Kerala High Court granted relief to eight Vice Chancellors of Universities in Kerala, who were asked by the Chancellor of the Universities(the Governor of Kerala Arif Mohammed Khan) to resign today.
The Court held that all of them could continue in their positions till a final order is passed by the Chancellor/Governor against them on the basis of the show-cause notice issued by the Chancellor to them today. The Court thus, set aside the the communications issued by the Chancellor asking the VCs of the Universities to resign vide its judgment dated 24.10.2022.
Case Title: Sabu Thomas v. The Chancellor, Mahatma Gandhi University & Ors. and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 545
The Kerala High Court on Monday observed that the Governor Arif Mohammed Khan, in his capacity as the Chancellors of nine universities, could not have asked the Vice Chancellors to resign. The Court made this observation in the order passed in the writ petitions filed by eight Vice Chancellors challenging the instruction issued to them by the Governor on October 23 to resign by today 11.30 AM.
The Court has accordingly, set aside the communications issued by the Chancellor asking the VCs of the Universities to resign.
Case Title: Renoj R.S. v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 546
The Kerala High Court has held that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prevails over the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). Thus, when offences under both the Acts have been alleged, the accused would be entitled to avail the procedure contemplated under the former for bail.
The Court found that by virtue of Section 31 of the POCSO Act which makes the provisions of the Code of Criminal Procedure (Cr.P.C.) applicable, the accused person could approach the High Court under Section 439 Cr.P.C.
Justice Bechu Kurian Thomas, while holding so, observed that,"...it is pertinent to notice that despite the SC/ST Act being amended in 2015 and 2018, the overriding effect of POCSO Act, in the event of inconsistency, has not been nullified or interfered with by the Parliament. Thus, it is evident that the legislature intended to give supremacy to the POCSO Act, even over the SC/ST Act, in the event of any inconsistency".
Case Title: Dr. Nicky K. Xavier v. State of Kerala & Ors. and Dr. Nicky K. Xavier v. Dr. P. Balakrishnan & Ors
Citation: 2022 LiveLaw (Ker) 547
The Kerala High Court recently held that a candidate who had initially applied for the post of Scientist E-1 in the Kerala Forest Research Institute (KFRI) in 2012, but did not apply again after a third notification was issued for the same posts in 2015, cannot be granted benefit of exemption from applying afresh as the same was only for those candidates who had submitted applications in response to a second notification in 2013.
Upholding a single bench order, the division bench of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. observed that the second notification did not contain a clause which exempted persons who had applied in response to the first notification from applying afresh.
"This would mean that the appellant who had responded to Ext.P23 notification (first notification), lost his opportunity for consideration to the post in question with the cancellation of the said notification and the re-notification through Ext.P24 notification (second notification)".
Case Title: M.M. Madhavan Namboodiri & Ors v. The Tahsildar Thamarasseri & Ors.
Citation: 2022 LiveLaw (Ker) 548
The Kerala High Court recently held that the time limit fixed under Order VIII Rule 1 of the Code of Civil Procedure (C.P.C.) for filing a written statement is only directory in character, and not mandatory.
A Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, perused various Apex Court precedents in arriving at its finding, and found favour in the submissions made by Advocates B.G. Bhasker and Biju Abraham appearing for the appellants. It observed, "when the Apex Court has expressed its opinion on the interpretation of a statutory provision, whether it forms part of the ratio or not, all the Courts will have to follow the opinion of the Apex Court in regard to the interpretation".
Case Title: Abeyson P John v. Station House Officer & Ors.
Citation: 2022 LiveLaw(Ker) 549
The Kerala High Court on Tuesday reiterated that if the Panchayat/ Municipality or any contesting party takes a stand that a land was voluntary surrendered, the burden would be on the said Panchayat/Municipality or contesting party to establish such voluntary surrender.
Justice Anu Sivaraman observed that if there is any case of voluntary surrender of any property by the petitioner or his predecessors-in-interest, it would be for the contesting party respondents to prove the same before the appropriate authorities.
Case Title: Cardinal Mar George Alencherry v. State of Kerala
Citation: 2022 LiveLaw (Ker) 550
The Kerala High Court on Thursday addressed the issue of massive encroachment upon Government properties, particularly by religious/ charitable institutions and expressed dismay at the inaction on part of the Government, political leaders and the society at large.
"A congenial environment is still in existence in the entire State of Kerala promoting encroachment over the Government land with the apparent acquisition of properties by such institutions. This has given immense wealth and authority to religious institution to dominate the will of Government machineries and it is injurious to our democratic system and the principle of equality and liberty guaranteed under the Constitution".
Justice P. Somarajan thus directed that both the State and Central Government would be duty bound to follow the Constitutional mandate and preserve properties of bona vacantia and property that belong to the public at large. The Court directed that the properties obtained by such religious or charitable bodies and institutions have to be enquired into and investigated by taking proper action against the culprits.
Case Title: Cardinal Mar George Alencherry v. State of Kerala
Citation: 2022 LiveLaw (Ker) 550
The Kerala High Court on Thursday requested the Central Government to explore the possibility of a uniform Central legislation to regulate the functioning of charitable organizations and religious institutions.
Justice P. Somarajan made the above request while addressing the issue of massive encroachment upon Government properties, particularly by religious/ charitable institutions, and the inaction on part of the Government, political leaders and the society at large in this regard.
Case Title: Mathew Joseph v. The Registrar of Co-operative Societies & Ors.
Citation: 2022 LiveLaw(Ker) 551
The Kerala High Court on Tuesday observed that once the charge memo issued to a delinquent employee is set aside by a competent forum, the suspension order that is dependent on it also ceases to have force of law.
Division Bench consisting of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nias C. P. observed that when the memo of charges is set aside, then there exists no enquiry in the eye of the law and thus, the employee must be deemed to be in service without any proceedings till the issuance of fresh proceedings, if any. Therefore, the employee is also entitled to the salary and other benefits for the said period.
Case Title: George Jose P.J. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 552
The Kerala High Court on Thursday granted bail to person accused of attempting to kill another for losing a carom game.
Justice Viju Abraham in the order said:
Considering the facts and circumstances of the case and taking into consideration the fact that petitioner is in custody from 05.10.2022 onwards and also the fact that the petitioner has no other criminal antecedents, I am inclined to grant bail to the petitioner. In the result, the bail application is allowed.
Case Title: Shilpa Nair v. State of Kerala (Deleted)
Citation: 2022 LiveLaw (Ker) 553
The Kerala High Court recently held that enhancement of annuities paid to the Sree Padmanabhaswamy Temple and prescription of interest for the delayed payment is a matter to be decided by the legislature, since it can be effectuated only by appropriate amendment to Section 6 of the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971.
The development comes in a plea seeking enhancement of annuities by 25% every four years. The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed, '...any such increase shall be taking into account the prevailing state of affairs, including the rate of inflation and change that has been brought about in the nature and complexity in the administration of Sree Padmanabhaswamy Temple over a period of time. All the same, it is a matter for legislation. This Court is not expected to direct the State to carry out a legislation in a particular manner".
Case Title: Sandra Stephen v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 554
The Kerala High Court has prima facie held that the extent of family house plot of a married woman living separately cannot be a reason for denying her EWS Certificate. It thus directed the Village Officer to issue a provisional Economically Weaker Section (EWS) Certificate to the Petitioner, subject to the final outcome of the Writ Petition.
Justice V G Arun while admitting the Writ Petition, observed that:
I find prima facie merit in the contention urged by the learned Counsel for the petitioner that, being a married woman living separately, the extent of her family's house plot cannot be a reason for denying the EWS certificate to the petitioner.
Other Significant Developments This Week
Case Title: Suo Motu v. Baiju Kottarakkara
The Kerala High Court Tuesday said the counter affidavit filed by Malayalam Film Director Baiju Kottarakkara in the suo motu contempt proceedings initiated against him for making "abusive remarks" against a trial court judge neither specifically affirmed that he made those comments, nor refuted the same.
Granting a further period of three weeks to him to make his stance clear, the court sought a fresh affidavit on the charges against him. Kottarakkara had made the comments against a judge, who is presiding over the trial of 2017 actor abduction and assault case.
Case Title: Dr Joseph Skariah v. Vice-Chancellor (Selection Committee Chairman)
The Kerala High Court on Tuesday extended its stay on the appointment of Priya Varghese, wife of K.K. Ragesh - who is private secretary to the Chief Minister Pinarayi Vijayan, as an Associate Professor at the Department of Malayalam, in Kannur University.
Justice Devan Ramachandran extended the court's interim order, while adjourning the case challenging Varghese's appointment.
Family Property No Reason To Deny EWS Certificate To Married Woman Living Separately: Kerala High Court Opines Prima Facie
Case Title: Suo Motu v. State of Kerala & Ors
The Kerala High Court on Wednesday impleaded the Secretary of Ministry of Health and Family Welfare as a respondent in the suo motu public interest writ petition seeking inclusion of 'Congenital Adrenal Hyperplasia' as a rare disease under the National Policy for Rare Diseases.
The division bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly, passed the interim order, after noting though the Central Technical Committee for Rare Diseases (CTCRD) had examined the case and opined that Congenital Adrenal Hyperplasia (CAH) disease could be categorized as a Rare Disease under Group 2 in the policy, a notification has to be issued by the Central Government so that support can be availed by the patients.
Case Title: Anil J.S. v. State of Kerala
The Kerala High Court on Thursday directed the State Police Chief to file a further report on the manner in which its directions insisting the Police to behave well with the citizens were being complied with.
Justice Devan Ramachandran, on being informed by the Government Pleader Joshy Thannickamattom, that a circular had been issued by the State Police Chief in this regard, observed that, it is not merely sufficient that, the State Police Chief issues circulars, but it should be ensured that every Police Officer adheres and abides by the same. The compliance report is woefully wanting in this regard, since it merely says that a circular has been issued. This Court certainly requires further information from the State Police Chief, as to the manner in which the above mentioned Circular has been implemented across the State and among all the officers in the hierarchy of ranks.
In A First, Family Counselling Centre Inaugurated By Chief Justice S. Manikumar At Kerala High Court
A Family Counselling Centre, a facility under the aegis of Kerala High Court Legal Services Committee, was formally inaugurated by the Chief Justice, High Court of Kerala S. Manikumar, on October 26.
This service facility was initiated by the Chairman of Kerala High Court Legal Services Committee, Justice A Muhamed Mustaque, to help the litigants in matrimonial and allied matters to address their emotional needs and to help and guide them to reach a logical conclusion to their protracted litigations.
Case Title: Kiran Kumar S v. State of Kerala & Anr.
The Kerala High Court on Wednesday, while considering the convict's appeal in the Vismaya dowry death case, said the legal system must remain immune from the public and media pressure while dealing with sensational cases.
The appeal has been moved by Kiran Kumar against his conviction and the sentence imposed on him by the trial court in the case related to his wife's death.
The division bench of Justice Alexander Thomas and Justice Sophy Thomas said the legal system must be sensitive towards public interest but should not be swayed by too much public pressure while dealing with sensationalised cases.
Kerala High Court Says Only 'New Driving Culture' Can Prevent Road Accidents
Case Title: Pauly Vadakkan v. Corporation of Cochin
The Kerala High Court on Friday observed that only a "new driving culture" can prevent road accidents in the state.
Justice Devan Ramachandran noted that despite every effort of the court to ensure that accidents are minimised, it was distressing to know that road mishaps have continued.
"As this Court has been emphasising earlier, only if there is a new culture of driving, can such incidents be controlled, particularly in view of the fact that the number of vehicles are increasing day by day".
Case Title: State Of Kerala v. Eldose Kunnapilly
A Petition has been moved before the Kerala High Court by the state government challenging Thiruvananthapuram Court's order granting anticipatory bail to the Congress MLA Eldhose Kunnappilly in a case accusing him of rape and attempt to murder.
In the Petition, moved through Additional Public Prosecutor, it has been argued that the lower court erred in granting pre-arrest bail at the initial stage of investigation. The State has said that custodial interrogation is highly necessary in the case.
Case Title: Dilakshan & Anr v. State of Kerala & Ors.
The Kerala High Court on Friday granted interim bail to Sri Lankan nationals, who are accused of attempting to illegally travel to Canada via sea, and directed the trial court to complete the trial within three months after receipt of final report in the matter.
During the bail period, the accused persons, who had been apprehended near Vaddy Harbour, Kaikulangara Cheny Kollam West Village Kollam, will remain confined to a home run by Gandhi Bhavan International Trust, Pathanapuram and Open Prison and Correctional Home, Nettukaltheri, Thiruvananthapuram, until further orders. The petitioners were earlier living in various refugee camps in Tamil Nadu.
