Kerala High Court Weekly Round-Up: September 18 - September 24, 2023
Navya Benny
24 Sept 2023 5:41 PM IST
Nominal Index [Citations: 2023 LiveLaw (Ker) 488-508]Aparna Sasi Menon v. The Revenue Divisional Officer 2023 LiveLaw (Ker) 488Master A (Minor) V District Legal Service Authority 2023 LiveLaw (Ker) 489Fr. Geevarghese John @Subin John v. State of Kerala 2023 LiveLaw (Ker) 490Suseela & Ors. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 491Sanoj V K V Bharat Petroleum Corporation Ltd....
Nominal Index [Citations: 2023 LiveLaw (Ker) 488-508]
Aparna Sasi Menon v. The Revenue Divisional Officer 2023 LiveLaw (Ker) 488
Master A (Minor) V District Legal Service Authority 2023 LiveLaw (Ker) 489
Fr. Geevarghese John @Subin John v. State of Kerala 2023 LiveLaw (Ker) 490
Suseela & Ors. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 491
Sanoj V K V Bharat Petroleum Corporation Ltd. 2023 LiveLaw (Ker) 492
Kashyap Saigal v. State of Kerala & Anr. 2023 LiveLaw (Ker) 493
Sujith Kumar S V Vinaya V S 2023 LiveLaw (Ker) 494
Diya Agencies v. State Officer & Ors. 2023 LiveLaw (Ker) 495
Ratheesh V v. S Mary 2023 LiveLaw (Ker) 496
S Mangalan V The District Collector 2023 LiveLaw (Ker) 497
Ramanadhan v. Raji 2023 LiveLaw (Ker) 498
XXX v. State of Kerala & Ors. and connected matter 2023 LiveLaw (Ker) 499
Santiago Martin v. Union of India & Ors. 2023 LiveLaw (Ker) 500
Archa Unni V State of Kerala 2023 LiveLaw (Ker) 501
Jisha Mohan v. Vishal V.M. 2023 LiveLaw (Ker) 502
Sreedharan v. Ahsa 2023 LiveLaw (Ker) 503
Neena T V State of Kerala 2023 LiveLaw (Ker) 504
Royal Sundaram Alliance Insurance Co. Ltd. v VS Sujatha & Ors 2023 LiveLaw (Ker) 505
Kerala State Tug of War Association v. Union of India & Ors. 2023 LiveLaw (Ker) 506
The Kerala Administrative Tribunal Ernakulam Advocates Association V State of Kerala 2023 LiveLaw (Ker) 507
Jayarajan B.C. v. Lakshmi Mallya & Ors. 2023 LiveLaw (Ker) 508
Judgments/Orders This Week
Case Title: Aparna Sasi Menon v. The Revenue Divisional Officer
Citation: 2023 LiveLaw (Ker) 488
The Kerala High Court recently laid down that when a Form-5 application under Rule 4(4D) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 is considered by the competent authority for exclusion of certain land from the Data Bank, the predominant factor for consideration ought to be whether the land is one where paddy cultivation is possible and feasible.
"In very small plots of land which are surrounded by commercial or residential buildings, though such land is described as paddy land in the revenue records and though it may be technically possible to cultivate the land with paddy, still such cultivation will not be ordinarily possible and financially feasible. In the case of lands having any extent, the factor whether there are proper irrigation facilities making the land suitable for paddy cultivation would be important. Even if the land is of a comparatively larger extent, if there are no irrigation and other requisite facilities, it cannot be said that the land is suitable for paddy cultivation, merely because it was once cultivated with paddy and it is described as paddy land in revenue records," Justice Nagaresh observed.
Case name: Master A (Minor) V District Legal Service Authority
Citation: 2023 LiveLaw (Ker) 489
The Kerala High Court has ordered the District Legal Services Authority at Thalassery to consider paying higher compensation to two acid attack victims, based on law of reparation and the nature of injuries suffered by them.
Justice Devan Ramachandran, observed thus:
“The law relating to reparation is now well-settled. It has to be adequate and commensurate to the detriment caused to the parties. A specific finding to this effect, based on all necessary and crucial aspects ought to have found place in the orders impugned; but to that extent, I am of the view that it is wanting. I do not propose to speak any further because, am certainly of the view that the entire matter requires to be reconsidered by the DELSA in its true perspective.”
Case Tite: Fr. Geevarghese John @Subin John v. State of Kerala
Citation: 2023 LiveLaw (Ker) 490
The Kerala High Court has observed that there is no proper legislation providing punishment for defamatory posts circulated on social media. Bench of Justice PV Kunhikrishnan thus urged the legislature to seriously look into this aspect.
The order stated,
“Defamatory Facebook posts continue to do the rounds on Facebook and other Social Media platforms. There is no proper punishment for such defamatory statements and posters on Facebook. The legislature must look into this aspect seriously, especially in the backdrop of this new era of technology and Social Media mania in existence in our society.”
Case Title: Suseela & Ors. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 491
The Kerala High Court recently refused to grant Legal Heirship Certificate to the wife and daughters of a man who had gone missing in the year 2002, and could not be found since.
Justice Devan Ramachandran observed that a Legal Heirship Certificate could only be granted if there is a legally sanctioned presumption possible, or if it is factually assessed that the missing person is no more. It thus observed that an enquiry was required to be done by the Police to ascertain the same, which did not happen till date.
"This Court is persuaded to say as afore because, it is certainly possible that Sri.Rajendran is still available somewhere, perhaps being without the capacity to contact the petitioners for some reason; and it is, therefore, in their interest also that he is traced out, if possible," it observed.
Case title: Sanoj V K V Bharat Petroleum Corporation Ltd.
Citation: 2023 LiveLaw (Ker) 492
The Kerala High Court has recently held that writ jurisdiction under Article 226 cannot be invoked to impose penalties against the Information Officers under the Right to Information Act, 2005 (RTI).
Justice Murali Purushothaman ruled that the Central Information Commission or the State Information Commission was the competent authority under section 20 of the Act to order penalties against the Information Officers.
“...the authority competent to impose penalty as contemplated under Section 20 of the Act on the Central Public Information Officer or the State Public Information Officer is the Central Information Commission or State Information Commission, as the case may be and the petitioner cannot approach this Court invoking its jurisdiction under Article 226 of the Constitution of India.”
Case Title: Kashyap Saigal v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 493
The Kerala High Court recently held that no person could seek to remain in possession of a commercial enterprise under the Greater Cochin Development Authority (GCDA) ad infinitum, irrespective of their credentials.
Justice Devan Ramachandran held so while hearing a petition filed by a handicapped person belonging to the Scheduled Caste community seeking to retain his possession of the Kiosk allotted to him by the GCDA for a year, despite the expiration of his license to conduct the same.
"No person can – whatever be his credentials or attributes - seek to remain in possession of a commercial enterprise under the GCDA ad infinitum. The said Authority is expected to conduct its affairs as per law and to abide by tendering processes with respect to the allotment of its stalls and ‘Kiosks’."
Case title: Sujith Kumar S V Vinaya V S
Citation: 2023 LiveLaw (Ker) 494
The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.
Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child.
“It has to be held further that when DNA test cannot be resorted to clear a suspicion regarding the paternity of the child, in the absence of specific denial of paternity of the child. In view of the above legal position, the dismissal of the application put in by the petitioner to conduct DNA test with a view to clear his suspicion/doubt regarding the paternity of the child, can only be justified.”
Case Title: Diya Agencies v. State Officer & Ors.
Citation: 2023 LiveLaw (Ker) 495
The Kerala High Court recently held that Input Tax Credit (ITC) cannot be denied to a purchaser merely on ground of non-reflection of the transaction in the GSTR-2A Form.
Remanding the matter back to the Assessing Officer to give opportunity to the purchaser who is the petitioner herein, Justice Dinesh Kumar Singh observed:
"If on examination of the evidence submitted by the petitioner, the assessing officer is satisfied that the claim is bonafide and genuine, the petitioner should be given input tax credit. Merely on the ground that in Form GSTR-2A the said tax is not reflected should not be a sufficient ground to deny the assessee the claim of the input tax credit".
Case title: Ratheesh V v. S Mary
Citation: 2023 LiveLaw (Ker) 496
The Kerala High Court recently held that a document which was to be compulsorily registered under Section 17 and 49 of the Registration Act, if unregistered, then it cannot be admitted in evidence.
Justice A. Badharudeen also clarified that if the parties have not raised objection to the unregistered document while it was marked as evidence during the trial stage, then they cannot raise objection stating that the document was unregistered during the appellate stage.
"When a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document would be tendered in evidence. Once the court rightly or wrongly decided to admit the document in evidence, so far as the parties are concerned, the matter is closed," the bench reiterated citing Supreme Court's decision in Javer Chand and Others v. Pukhraj Surana (1961).
Case title: S Mangalan V The District Collector
Citation: 2023 LiveLaw (Ker) 497
The Kerala High Court has made it clear that under the Kerala General Sales Tax Act 1963 and Rules, the assessing authority empowered to permit payment of sales tax dues in instalments is the Sales Tax Officer.
Justice Dinesh Kumar Singh observed thus:
“The Kerala General Sales Tax Acts and Rules empowers the assessing authority ie.,the Sales Tax Officer to grant 6 instalments as per the provisions of Rules 30(B) of the KGST Rules.”
Case Title: Ramanadhan v. Raji
Citation: 2023 LiveLaw (Ker) 498
The Kerala High Court reiterated that retaining a marriage that has irretrievably broken down would amount to cruelty to both parties, and no meaningful purpose would be served by the same.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, took note of a recent Apex Court decision which laid down that keeping parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides [2023 LiveLaw (SC) 727].
Bar On Anticipatory Bail U/S 438(4) CrPC In Cases Of Rape Of Minors Not Absolute: Kerala High Court
Case Title: XXX v. State of Kerala & Ors. and connected matter..
Citation: 2023 LiveLaw (Ker) 499
The Kerala High Court reiterated that Section 438(4) of the Code of Criminal Procedure (CrPC) does not create an absolute bar in the grant of anticipatory bail to an accused alleged of raping a minor girl when no prima facie materials exist warranting the arrest of the accused.
Section 438(4) excludes the grant of pre-arrest bail to offences under Sections 376(3), 376-AB, 376-DA or 376-DB of the IPC, which pertain to the offence of rape or gang rape with a minor woman under the age of twelve or sixteen years.
Justice Kauser Edappagath, while noting that the grievous nature of the afore offences certainly warranted and justified the exclusion of pre-arrest bail, however, added that where such cases were patently false or motivated allegations, such exclusion would not come into play.
"If the exclusion of the provision for pre-arrest bail embodied in Section 438(4) of Cr.P.C. is treated as absolute, there will be no protection available to innocent persons against whom false and motivated accusations are made. Protecting the innocent is equally important, like convicting the guilty. The criminal justice system needs to strike a balance between punishing the guilty and protecting the innocent. Thus, the exclusion clause cannot, by any reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. Limiting the exclusion to genuine cases is essential to protect the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India," the Court observed.
Kerala High Court Dismisses Lottery King Santiago Martin's Appeal Against ED Attachments
Case Title: Santiago Martin v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 500
The Kerala High Court dismissed Lottery King Santiago Martin's appeal against the Single Judge's dismissal of his plea challenging ED's attachment orders, freezing his and his company's movable assets under the Prevention of Money Laundering Act, 2002 (PMLA).
The Division Bench comprising Chief Justice A.J. Desai and Justice V.G. Arun passed the order.
Case title: Archa Unni V State of Kerala
Citation: 2023 LiveLaw (Ker) 501
The Kerala High Court has held that writ jurisdiction cannot be invoked under Article 226 of the Constitution to challenge the decisions issued by the Municipality, especially on grant or refusal of a licence or permission to occupy a public place, unless the order was illegal or bad in law.
Justice Bechu Kurian Thomas further held that the Municipal Authorities are empowered to make such decisions considering the interests of both the Municipality and the public.
“This Court cannot sit in appeal over the decisions of the authorities, especially when it relates to the grant or refusal of a licence or a permission to occupy a public place.The Municipal authorities who are vested with the powers of control and administration of public places would necessarily have to take decision on the basis of the best interests of not only the Municipality but also of the people. Therefore, in the absence of any perversity or any malafides being attributed or shown to exist in issuing the impugned order, there is no cause for any interference under Article 226 of the Constitution of India.”
Case Title: Jisha Mohan v. Vishal V.M.
Citation: 2023 LiveLaw (Ker) 502
The Kerala High Court has held that a mother cannot be denied sole guardianship and custody of a minor child merely on the ground that she is relocating to another country for better job opportunities and fortune.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that merely because there is a parental battle for custody of the child, the same did not mean that the parties would have to remain locally without relocating elsewhere, in order to retain the custody of the child.
“If the relocation of the appellant is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection. If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child,” the Court observed.
Withholding Mutual Consent For Divorce In A Failed Marriage Is Cruelty: Kerala High Court
Case title: Sreedharan v. Ahsa
Citation: 2023 LiveLaw (Ker) 503
The Kerala High Court has said that withholding mutual consent to dissolve a failed marriage amounts to cruelty.
A Division Bench comprising Justice A.Muhamed Mustaque and Justice Sophy Thomas relied on the concept of "no fault divorce" to state people are starting to realise that there is a "sensible way" of parting on mutually agreed terms.
Case title: Neena T V State of Kerala
Citation: 2023 LiveLaw (Ker) 504
The Kerala High Court recently held that the benefit of the Kerala Freedom Fighter’s Continuous Pension (KFFCP) cannot be denied to the divorced daughter of a deceased freedom fighter solely on the ground that her brothers were earning and financially settled.
Justice Devan Ramachandran remarked that the reason cited for the rejection of pension, that that the petitioner would be taken care of by her brothers, was based on outdated patriarchal notions:
“I am afraid that the submissions of the learned Government Pleader smack archaic patriarchal notions. Merely because the petitioner has two brothers, an automatic assumption drawn that she would be taken care of by them for her life, can only be seen to be one solely on account of the afore notions and nothing else.”
Case Title: Royal Sundaram Alliance Insurance Co. Ltd. v VS Sujatha & Ors
Citation: 2023 LiveLaw (Ker) 505
The Kerala High Court recently held that in motor vehicle accidents, the legal representatives of the deceased are entitled to compensation even if they are not legal heirs of the deceased.
Justice Murali Purushothaman added that this rule remains true even if there is no loss of dependence and clarified that the compensation would go to the estate of the deceased.
"Even if there is no loss of dependency, if the claimant is a legal representative of the deceased, he would be entitled to compensation. The compensation payable goes to the 'estate' of the deceased...The compensation constitutes part of the estate of the deceased and as a result, the legal representative of deceased would inherit the estate even if he was not dependent on the deceased and even if he is not a legal heir."
Case Title: Kerala State Tug of War Association v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 506
The Kerala High Court granted liberty to the Kerala State Tug of War Association (hereinafter, 'Association') to file their objections within a limited time frame to the order issued by the Tug of War Federation of India (hereinafter, 'Federation'), dissolving the Executive Committee of the Association and deaffiliating the same from their membership.
The Federation had issued a show cause notice to the Association on August 1, 2023, for which the latter sought time to reply. The Federation at this juncture, proceeded to dissolve the Executive Committee of the petitioner Association, and de-affiliate it from their membership, noting that the Association was in a 'sorry state of affairs', and that 'immediate remedial steps' were required to be taken to save the sport of Tug of War in Kerala.
Justice Devan Ramachandran, observed in this regard that apart from generic statements, the only tenable reason that one could find in support of the Federation's decision to dissolve the Executive Committee of the petitioner Association was that the latter had not replied to the former's show cause notice. The Court noted that the Federation had taken the decision to deaffiliate and dissolve the Executive Committee without considering the petitioner's request for a month’s time to offer explanation for the notice, in its proper perspective.
Case title: The Kerala Administrative Tribunal Ernakulam Advocates Association V State of Kerala
Citation: 2023 LiveLaw (Ker) 507
The Kerala High Court, while hearing a plea submitted by an association of lawyers and advocates seeking for introducing Hybrid Mode at Kerala Administrative Tribunal (KAT), Ernakulam, stated that adopting technological means for hearing and disposal of cases was not a choice anymore, but an obligation mandated by the Supreme Court of India.
Justice Devan Ramachandran observed thus:
“There can be no doubt, going by the afore rival positions – which, in fact, are not rival but virtually supplementing each other – that adoption of technology by Courts is not one as a matter of choice, but is now more an obligation, going by the requirements of time and the directions of the Honourable Supreme Court.”
Case Title: Jayarajan B.C. v. Lakshmi Mallya & Ors.
Citation: 2023 LiveLaw (Ker) 508
The Kerala High Court has made it clear that under the Petroleum Rules, 2002, the District Authority is not empowered to reject No Objection Certificate (NOC) for fuel outlet on the ground that the proposed site is different from that mentioned in the notification.
Rule 144 of the Petroleum Rules, 2002 stipulates the grant of NOC.
The application for NOC by the Indian Oil Corporation was rejected by the Additional District Magistrate on noting that the proposed site location for establishment of a petroleum outlet was different from the one mentioned in the notification issued by the Company. The Single Judge Bench, on perusing Rule 144 had held that it was not within the domain of the Additional District Magistrate to interpret the notification and reject the NOC.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, in the appeal before it, perused the scope of Rule 144, and noted that the nature of power under the Petroleum Act and Rules, 2002 lays down that the insistence upon NOC is for the purpose of protecting public interest and public safety.
Other Significant Developments This Week
Case Title: V. Mohanlal v. State of Kerala & Ors.
Case Number: Crl.MC 7350/ 2023
The Kerala High Court stayed the ongoing trial against against Actor Mohanlal in case for alleged illegal possession of ivory.
Justice P.V. Kunhikrishnan granted an interim stay of proceedings before Judicial First Class Magistrate Court, Perumbavoor, for a period of 6 months.
Case Title: Ancy K. Alexander v. Parvathy Maya Shaji & Anr.
Case Number: C. C. No. 74/2023
The District Consumer Disputes Redressal Commission at Ernakulam recently ordered an immigration consulting agency to compensate a student for cheating the latter in the name of obtaining permanent residency (PR) visa to Canada.
The Bench comprising the President D.B. Binu and Members V. Ramachandran and Sreevidhia T.N., held the Managing Director and General Manager of Amster Immigration Overseas Pvt. Ltd. liable to refund the 75,000 deposit made by the complainant as well as compensation of Rs. 10,000/- to the complainant.
Case title: Adv. Manu Nair G V Ford India Pvt. Ltd
Case number: CC/57/2022
The Consumer Disputes Redressal Commission at Kottayam recently ordered Ford India Pvt. Ltd to pay compensation to a lawyer for failure to deliver an EcoSport Titanium car to him, after taking advance booking just 3 weeks prior to cessation of its operations in India.
The booking was taken by Ford's authorized dealer at Kottayam, Kairali Ford, unaware of then forthcoming closure of Ford India.
The Bench comprising the President Manulal V.S. and Members Bindhu R. and K.M. Anto held that if Ford India was ceasing its operations, then the dealers should not have been allowed to take advance booking from the consumers. It observed,
"Had there been any decision to cease the production and sale of the vehicle in India, the first opposite party [Ford India] should not have allowed their dealers to receive the booking from the general public who were not aware of the decision of the first opposite party, which they later-on cancelled."
Case Title: Rajendra Kumar v. State Police Chief & Ors.
Case Number: W.P. (Crl.) 951/ 2023
A plea has been moved in the Kerala High Court seeking investigation of the Kandala Service Co-Operative Bank scam to be entrusted to the Crime Branch or in the alternative seeking constitution of a Special Investigation Team to conduct the probe in the matter.
The issue relates to the siphoning off of an amount of over Rs 180 crores in the Saving Bank Accounts and Fixed Deposits of the depositors by office-bearers of the Co-operative Bank during the period 2018-2023.
Justice P.V. Kunhikrishnan has sought the State's response in the matter.
