Madras High Court Monthly Digest - February 2023 [Citations 38 To 67]

NOMINAL INDEX

P Markandan v. The Commissioner HR&CE Department, 2023 LiveLaw (Mad) 38

KC v. UK and others, 2023 LiveLaw (Mad) 39

KC v. UK, 2023 LiveLaw (Mad) 40

M/s. Amirta International Institute of Hotel Management v. The Principal Commissioner of CGST & Central Excise, 2023 LiveLaw (Mad) 41

S v. V, 2023 LiveLaw (Mad) 42

Abbotsbury Owners' Association v. The Member Secretary, 2023 LiveLaw (Mad) 43

Dr Sri Hari Vignesh R v. State of Tamil Nadu and others, 2023 LiveLaw (Mad) 44

Dr. Jayakrishnan MP v. State of Tamil Nadu, 2023 LiveLaw (Mad) 45

R Rajesh v. Union of India and others, 2023 LiveLaw (Mad) 46

P Rathinam v. State of Tamil Nadu and others, 2023 LiveLaw (Mad) 47

G Subramanian v. K Phanindra Reddy IAS (batch cases), 2023 LiveLaw (Mad) 48

Sivankalai v. The State and others, 2023 LiveLaw (Mad) 49

Flora Madiazagane v GG Hospital and others, 2023 LiveLaw (Mad) 50

Tvl Metal Trade Incorporation Versus The Special Secretary, 2023 LiveLaw (Mad) 51

The Federal Bank Ltd. V The Sub Registrar and others, 2023 LiveLaw (Mad) 52

G Devarajan v. The Chief Secretary and others, 2023 LiveLaw (Mad) 53

V Kamala v. The State of Tamil Nadu and others, 2023 LiveLaw (Mad) 54

Venkatesan @ Venkatesh v. State and others, 2023 LiveLaw (Mad) 55

Hina Suneet Sharma & Anr. versus M/s Nissan Renault Financial Services India Pvt Ltd, 2023 LiveLaw (Mad) 56

Jay Shah v. The Commissioner of Police and others, 2023 LiveLaw (Mad) 57

M/s Galatea Limited v. The Registrar General and others, 2023 LiveLaw (Mad) 58

Lakshmanan v. The Secretary SHRC, 2023 LiveLaw (Mad) 59

Shankar @ Savukku Shankar v. State and others, 2023 LiveLaw (Mad) 60

C.Ve. Shanmugam v. Election Commission of India and another, 2023 LiveLaw (Mad) 61

State v. VD Mohanakrishnan, 2023 LiveLaw (Mad) 62

M/s. Transtonnelstroy – Afcons (JV) v. M/s.Chennai Metro Rail Ltd, 2023 LiveLaw (Mad) 63

C Kasthuriraj v. The State, 2023 LiveLaw (Mad) 64

The Child rep. by her mother v. State of Tamil Nadu and others, 2023 LiveLaw (Mad) 65

M Narasimhan v. State, 2023 LiveLaw (Mad) 66

Saminathan v Union of India and others, 2023 LiveLaw (Mad) 67

REPORTS

Madras High Court Orders Shutdown Of Fake Websites Misleading Devotees, Earning Profit In Name Of Temples

Case Title: P Markandan v. The Commissioner HR&CE Department

Citation: 2023 LiveLaw (Mad) 38

The Madras High Court has ordered closure of all illegal/unauthorised websites that have been created in the name of temples and which have been collecting funds from the devotees by misleading them.

Noting that temples are places of worship which people visit to get eternal peace and harmony, the bench of Justice R Mahadevan and Justice Sathya Narayana Prasad held that temples should not turn into places for gaining profits. Thus, the court held that apart from the official website of the temple, the third parties should not be allowed to maintain websites in the name of temples and collect funds.

'Their Best Interest Can Be Ensured Only If They Return To Native Country': Madras High Court Directs Mother To Return Twins To Father In US

Case Title: KC v. UK and others

Citation: 2023 LiveLaw (Mad) 39

While holding that the courts should always look into the best interest of the child in matters relating to custody, the Madras High Court has directed a mother to return her twin boys to their father in the US.

The division bench of Justice PN Prakash (since retired) and Justice Anand Venkatesh said the children are now living in an environment which is alien to them since for nearly 13 years, they were in the US.

The court followed the decision of the Supreme Court in Rohit ThammanaGowda v. State of Karnataka and Others wherein the Apex Court observed that the question of 'what is the wish/desire' of the child is different and distinct from the question 'what would be the best interest of the child'. The court had to thus look into the welfare of the child.

Also Read: Division Bench’s Directions Contrary To Principles Laid Down By Supreme Court: Madras High Court Single Judge On Custody Battle For US-Born Twins

Overseas Citizens, Persons Temporarily Residing In India Entitled To Seek Relief Under Domestic Violence Act: Madras High Court

Case Title: KC v. UK

Citation: 2023 LiveLaw (Mad) 40

The Madras High court recently held that the law in India does not prohibit a person holding an Overseas Citizenship of India (OCI) card or person temporarily residing here from seeking relief under the Domestic Violence Act in the Indian courts.

Justice SM Subramaniam said upon Section 27 of the Protection of Women from Domestic Violence (DV) Act "unambiguously stipulates that aggrieved person temporarily residing or carrying out business or employed is also falling within the ambit of the Domestic Violence Act, 2005. Therefore, a person, who is temporarily residing in India or Overseas Citizen of India, if abused economically by the spouse, who is residing in other country, is entitled to seek relief under the Act. The cause of action arouses in India, since the aggrieved person is residing in India."

Madras High Court Dismisses Plea By AR Rahman, GV Prakash and Santhosh Narayan Challenging GST Department’s Order Claiming Service Tax

Case Title: M/s. Amirta International Institute of Hotel Management v. The Principal Commissioner of CGST & Central Excise

Citation: 2023 LiveLaw (Mad) 41

The Madras High Court has recently dismissed the pleas filed by music composers AR Rahman, GV Prakash and Santhosh Narayan challenging the proceedings initiated by the Commissioner of the GST Department levying service tax on transfer of copyright in musical work for the period between 2013 and 2017.

Justice Anita Sumanth noted that to adjudicate the issue, it was necessary to look into the factual nature of the agreements between the petitioners and the third parties, and the authority was better equipped to look into the matter. The court added that the writ court could not go into interpretation of contractual clauses.

Second Petition For Divorce On Grounds Like Cruelty, Desertion, Adultery Not Hit By Res-Judicata When Founded On New Facts: Madras High Court

Case Title: S v. V

Citation: 2023 LiveLaw (Mad) 42

The Madras High Court recently said that as far as grounds for dissolution of marriage are concerned, they are of continuing nature.

Justice GK Ilanthiraiyan held that when the cause of action is of continuing and recurring nature, the subsequent petition for divorce will not be hit by res judicata.

The court noted that as long as the cause of action remains different and the relief is founded on new facts, there is no bar on raising the same grounds again.

Land Shown As Common Area Belongs To Flat Owners, Builder Cannot Sell It: Madras High Court

Case Title: Abbotsbury Owners' Association v. The Member Secretary

Citation: 2023 LiveLaw (Mad) 43

The Madras High Court has recently observed that when a land is shown as a common area and is developed as a common facility, it belongs to the flat owners of the building.

Justice R Subramanian and Justice K Kumaresh Babu thus disposed of a petition by the flat owners' association by directing the Chennai Metropolitan Development Authority to handover the vacant non-FSI building to the flat owners.

The court added that the builder was not a novice and thus it was highly improbable to accept the contention of the builder that there had been a mistake in calculation of the undivided share of the land. Thus, the builders had tried to mislead the buyers by adopting a wrong formula.

'People In Villages Also Must Get Services Of Specialists': Madras High Court Refuses To Interfere With Rural Posting Of PG Doctors

Case Title: Dr Sri Hari Vignesh R v. State of Tamil Nadu and others

Citation: 2023 LiveLaw (Mad) 44

In a plea challenging the posting of non-service PG doctors in Urban Primary Health Centre (UPHC) and Additional Primary Health Centre (APHC), the Madras High Court refused to interfere with the decision of the Directorate of Public Health and Preventive Medicine and directed the doctors to report to duty in the Centres allotted to them.

The main contention of the doctors was that the posting is not commensurate with the qualification and specialisation attained by them in the PG course. It was also argued that the health centres do not have the facilities to enable them perform their area of specialisation.

Justice Anand Venkatesh noted that the 19 doctors, who were before the court, had opted for UPHC and APHC at the time of counselling and cannot be allowed to wriggle out by stating that they do not have the necessary facilities in those PHCs.

Covid-19 Duty By Medical Students Pursuing Super Speciality Courses Can Be Set Off Against Compulsory Bond Service Period: Madras High Court

Case Title: Dr. Jayakrishnan MP v. State of Tamil Nadu

Citation: 2023 LiveLaw (Mad) 45

In a relief to five doctors, the Madras High Court has held that the period of service rendered by them during Covid-19 can be adjusted towards the two years of compulsory bond service.

Justice CV Karthikeyan held that the Government should extend an arm to the doctors as there was no refusal to undergo the compulsory bond period but only a request to adjust the period already served during Covid-19.

Tribunals Have No Authority To Issue Instructions On Dress Code Of Advocates Appearing Before Them: Madras High Court

Case Title: R Rajesh v. Union of India and others

Citation: 2023 LiveLaw (Mad) 46

The Madras High Court has quashed a notification issued by the Registrar of NCLT which made it mandatory for advocates appearing before any bench of NCLT to wear gowns.

The division bench of Justice R Mahadevan and Justice Mohammed Shaffiq in the judgment noted that as per Section 34 of the Advocates Act and the Bar Council of India Rules, only the High Court can frame rules for the dress code for the appearance of advocates.

The court added that the powers prescribed under Rule 51 of the NCLT Rules are merely for discharging functions as per the Act, in accordance with the principles of natural justice and equity. The same could not mean conferring power to prescribe the dress code, more so when it is contrary to the Bar Council of India rules, it said.

1997 Melavalavu Massacre: Madras High Court Refuses To Interfere With Premature Release Of 13 Convicts

Case Title: P Rathinam v. State of Tamil Nadu and others

Citation: 2023 LiveLaw (Mad) 47

The Madras High Court has recently dismissed a batch of pleas challenging the premature release of 13 convicts who were convicted in the infamous Melavalavu Massacre.

While refusing to interfere with the order of the Government, the division bench of Justice G Jayachandran and Justice Sunder Mohan of the Madurai Bench noted that the order of premature release was made after due consideration exercising the State's power conferred under Article 161 of the Constitution. It included objections from the victim’s family and the conduct of the accused.

State Must Uphold Citizen's Freedom Of Speech: Madras High Court Sets Aside Single Judge Order Imposing Conditions On RSS' Route March

Case Title: G Subramanian v. K Phanindra Reddy IAS (batch cases)

Citation: 2023 LiveLaw (Mad) 48

The Madras High Court has allowed a batch of pleas challenging a single judge order imposing certain conditions on the route march sought to be carried out by the Rashtriya Swayamsevak Sangh (RSS).

The bench of Justice R Mahadevan and Justice Mohammed Shaffiq noted that the State must uphold the citizens' right to freedom of speech and expression. The court thus directed the RSS to file fresh applications for carrying out the route march on three different dates and directed the Tamil Nadu police to permit the RSS to take out route marches on any of such dates in various districts across the State on public roads.

'Misbehaviour Caused In A Drunken Mood': Madras High Court Grants Bail To Accused In SC/ST Case

Case Title: Sivankalai v. The State and others

Citation: 2023 LiveLaw (Mad) 49

The Madras High Court recently granted bail to a man arrested for misbehaving with a woman belonging to the SC/ST Community.

While Justice G Ilangovan agreed that the man was not having good conduct, the court noted that considering the period of incarceration and the fact that the alleged act was done in a drunken state, the man was entitled to bail.

Botched Up Surgery: Madras High Court Directs Infertility Treatment Hospital To Pay ₹40 Lakh Compensation To Srilankan Woman

Case Title: Flora Madiazagane v GG Hospital and others

Citation: 2023 LiveLaw (Mad) 50

The Madras High Court recently directed a private infertility treatment hospital to compensate a Srilankan woman after a botched up surgery left her permanently disabled.

Justice G Chandrasekharan noted that the doctors and the hospital knew about the medical history of the woman and yet continued with the surgery with no proper precaution to avoid damage. The woman was left with a perforated colon and permanent disabilities following her surgery.

State GST Authority Can’t Prosecute If The Central Authority Has Already Initiated Action: Madras High Court

Case Title: Tvl Metal Trade Incorporation Versus The Special Secretary

Citation: 2023 LiveLaw (Mad) 51

The Madras High Court has held that the State Authority cannot prosecute the petitioner once again as the Central Authority has already initiated action against the petitioner in respect of the very same subject matter.

The bench of Justice Abdul Quddhose has observed that the petitioner will have to participate in the personal hearing and state all his objections with regard to the action launched by the State Authority under the TNGST Act, 2017. Unless and until the petitioner participates in the impugned proceedings, viz., the summons dated October 18, 2022, the truth cannot be unearthed with regard to the petitioner's contentions.

Rule Empowering Registrar To Refuse Registration Of Property Under Mortgage, Attachment Beyond Scope Of Parent Act: Madras High Court

Case Title: The Federal Bank Ltd. V The Sub Registrar and others

Citation: 2023 LiveLaw (Mad) 52

The Madras High Court has held that the proviso to Rule 55A of the Tamil Nadu Registration Rules is invalid and unconstitutional as it goes against the scope of its parent act – the Registration Act and the Transfer of Property Act.

Justice N Sathish Kumar observed that the authorities under the Registration Act did not have such powers to make rules which directly went against the objectives of the parent acts such as the Transfer of Property Act and the Registration Act.

Madras High Court Asks State To Continue Monitoring Movie Ticket Prices

Case Title: G Devarajan v. The Chief Secretary and others

Citation: 2023 LiveLaw (Mad) 53

The Madras High Court has directed the State government to continue its measures to monitor the amount of fees charged by way of movie tickets in cinema theatres .

Justice Anita Sumanth was dealing with three writ petitions which had been filed seeking action against theatre owners for charging more than the actual ticket rate fixed by the government for three movies- Kabali, Singam III and Bairavaa. The court also directed the State to take a decision on dealing with the excess charges already collected by the theatres.

'Adjourned More Than 50 Times, Witnesses Are Senior Citizens': Madras High Court Expedites Trial In 2013 Murder Of BJP Leader Ramesh

Case Title: V Kamala v. The State of Tamil Nadu and others

Citation: 2023 LiveLaw (Mad) 54

The Madras High Court has directed the Sessions Court for the exclusive trial of bomb blast/NIA cases, Poonamalle to complete the trial in the 2013 auditor Ramesh murder case within two months.

Justice RN Manjula noted that even though charges were framed in 2014, the case was pending for all these years. The court also expressed anguish over the fact that the case had been adjourned more than fifty times for counseling. The court added that even if the counseling was to be given to the victims, the same should not have affected the trial.

[Sample Analysis] Unless Mandatory Time Limits Prescribed In Concerned Statutes Are Complied, Test Results Will Be Unreliable: Madras High Court

Case Title: Venkatesan @ Venkatesh v. State and others

Citation: 2023 LiveLaw (Mad) 55

While quashing proceedings initiated against a man under Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 2005 and Essential Commodities Act, 1955 the Madras High Court stressed that time limits prescribed under the Acts for sample analysis have to be adhered to.

Justice RN Manjula noted that the purpose of prescribing time limits for sending samples for analysis is to ensure that there is no further contamination in the chemical products. When these time limits are not complied with, the test results become unreliable.

Challenge Under S. 13 of Arbitration Act Not Raised, Party Can Challenge Unilateral Appointment Of Arbitrator Under S. 34: Madras High Court

Case Title: Hina Suneet Sharma & Anr. versus M/s Nissan Renault Financial Services India Pvt Ltd

Citation: 2023 LiveLaw (Mad) 56

The Madras High Court has ruled that even if a party has failed to challenge the unilateral appointment of the Arbitrator under Section 13 of the Arbitration and Conciliation Act, 1996 (A&C Act) before the Arbitral Tribunal, it would not take away its right to challenge the award under Section 34 of the A&C Act on the ground that the Arbitrator was unilaterally appointed.

The bench of Justice Krishnan Ramasamy reiterated that if any award is passed in violation of the provisions of the A&C Act, the same would be against the public policy of India.

No Bar On Hookah Services In Restaurants If Designated Smoking Area Is Provided As Per Law: Madras High Court

Case Title: Jay Shah v. The Commissioner of Police and others

Citation: 2023 LiveLaw (Mad) 57

While granting relief to a hotel owner, the Madras High Court has recently held that there is no prohibition under law for providing Hookah services in restaurants if same is run conforming to the provisions of “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, supply and Distribution) Act, 2003” and also “The Prohibition of Smoking in Public Places Rules, 2008”.

The court noted that as per law, a separate smoking area, i.e. a separately ventilated smoking area with the board “Smoking Area” in English or one Indian language is a must. The restaurants should further display the Health advisory message against smoking at the entrance of the restaurant and that the entry of persons below 18 years should be prohibited.

“Delay By State Leaving Aggrieved Persons In Lurch”: Madras High Court Directs TN Govt To Notify Inauguration Of Its Intellectual Property Division

Case Title: M/s Galatea Limited v. The Registrar General and others

Citation: 2023 LiveLaw (Mad) 58

The Madras High Court has directed the State government to notify the inauguration of its Intellectual Property Division.

Acting Chief Justice T Raja and Justice D Bharatha Chakravarthy observed that the High Court registry has taken all possible steps to start the Intellectual Property Division and that the delay was on the part of the State.

The court also noted that the draft Rules were placed before the Full Court and approved. The Committee had also directed the Registry to approach the government to notify the rules. Following this, the registry addressed the State government for issuing the direction and has been constantly following up. However, the State was yet to notify the rules.

Every Instance Of Casual Police Enquiry Cannot Be Termed As Human Rights Violation: Madras High Court

Case Title: Lakshmanan v. The Secretary SHRC

Citation: 2023 LiveLaw (Mad) 59

The Madras High Court has recently observed that though there are instances of human rights violation in police stations, every instance of casual police enquiry cannot be termed as a Human Rights Violation.

The bench of Justice VM Velumani and Justice R Hemalatha noted that accusing police officers of human rights violation at the drop of a hat may be demoralising for the entire police force.

Madras High Court Dismisses Youtuber Savukku Shankar's Plea To Donate Books To Prisoners

Case Title: Shankar @ Savukku Shankar v. State and others

Citation: 2023 LiveLaw (Mad) 60

The Madras High Court has dismissed a petition filed by YouTuber Shankar @ Savukku Shankar challenging the Director General of Prisons' refusal to accept book donations made by him.

After noting that the petitioner himself has not read the books, Justice CV Karthikeyan dismissed the plea on the ground that the petitioner failed to explain how the books would be useful for the prisoners

[Erode East Bypoll] Election Commission Lists Steps To Ensure Free & Fair Election; Madras High Court Disposes AIADMK Organising Secretary's Plea

Case Title: C.Ve. Shanmugam v. Election Commission of India and another

Citation: 2023 LiveLaw (Mad) 61

The Madras High Court has disposed of a petition filed by AIADMK Organising Secretary C. Ve Shanmugam seeking a direction to the Election Commission to ensure free and fair conduct of the Erode (East) Bye Election. Shanmugam had sought for deployment of Central paramilitary forces and permitting identification of voters only through their identity cards and not the booth slips.

Acting Chief Justice T Raja and Justice D Bharatha Chakravarthy took note of the submissions made by the Election Commission listing out the steps taken to ensure smooth conduct of the election.

Madras High Court Holds Court Officer Guilty Of Taking Bribe For Job, Sentences Him To 3 Years Rigorous Imprisonment

Case Title: State v. VD Mohanakrishnan

Citation: 2023 LiveLaw (Mad) 62

The Madras High Court recently found a court officer guilty of misusing his official position and cheating an illiterate man with a promise of securing a job for him and obtaining 40000 rupees for the same.

Justice P Velmurugan reversed the order of the Special Court for cases under Prevention of Corruption Act and convicted the court officer under Section 420 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.

The court further disagreed with the defendant that a private complaint under Section 138 of the Negotiable instruments Act would clarify that the money given was in fact a loan amount. The court also found it improbable that the respondent, a public servant would seek financial assistance from the complainant who was poor and jobless.

Arbitrator May Use Own Knowledge And Expertise To Arrive At Conclusion But Must Allow Parties To Present Their Case: Madras High Court

Case Title: M/s. Transtonnelstroy – Afcons (JV) v. M/s.Chennai Metro Rail Ltd

Citation: 2023 LiveLaw (Mad) 63

While granting relief to the Chennai Metro Rail Limited (CMRL), the Madras High Court has noted that while an arbitral tribunal, which consists of experts in the field, is at liberty to apply its own knowledge and understanding to arrive at a conclusion, it should always allow the parties involved to present their case.

The bench of Acting Chief Justice T Raja and Justice Bharatha Chakravarthy was adjudicating appeals filed by Transtonnelstroy-Afcons who had entered into an agreement with CMRL for carrying out the construction of Chennai metro.

Magistrate's Order For FIR Can't Be Set Aside For Absence Of 'Reasons Of Prima Facie Satisfaction' If Complaint Contains Material Particulars: Madras High Court

Case Title: C Kasthuriraj v. The State

Citation: 2023 LiveLaw (Mad) 64

The Madras High Court has recently held that an order of Magistrate directing to register FIR cannot be quashed merely in the absence of recoding reasons on how the Magistrate was satisfied about the prima facie case.

Justice RN Manjula held that only when a mechanical order is passed on a bald complaint, the same can be set aside for not listing out the reasons.

The court added that though it would have been better if the Metropolitan Magistrate had recorded reasons, it could not be the reason to set aside the order when the complaint contained material particulars. Thus, it could be said that the order was passed without application of mind.

Madras High Court Criticises School For Denying Admission To Child With Special Needs

Case Title: The Child rep. by her mother v. State of Tamil Nadu and others

Citation: 2023 LiveLaw (Mad) 65

Coming down heavily on an educational institution for denying admission to a child with special needs, the Madras High Court observed that the institution had not only failed in performing its duty but had also brought bad repute to the Christian Missionary in whose name the institution was running.

Justice CV Karthikeyan noted that even though towards the end of the proceedings, the respondent school had remonstrated that it would appoint special educators and would also admit the child into their school, the same appeared to be a hollow submission.

[S.68 Forest Act 1927] When Offence Is Compounded, Seized Property Should Be Returned To Accused On Payment Of Compoundable Amount: Madras High Court

Case Title: M Narasimhan v. State

Citation: 2023 LiveLaw (Mad) 66

While directing the Forest Range Officer to return a gun to a man accused under the Wildlife Protection Act, Justice V Sivagnanam of the Madras High Court noted that under Section 68 of the Forest Act 1927, when an offence is compounded, the person accused should be discharged and the property seized should be released.

The court thus, set aside the impugned order and directed the Forest Range Officer to return the gun and the bullets to the petitioner.

NEET UG : Madras HC Criticises Student For Claiming Dual Nativity, Calls Upon Centre And College To Decide About His Admission

Case Title: Saminathan v Union of India and others

Citation: 2023 LiveLaw (Mad) 67

The Madras High Court recently came down heavily upon a student for claiming admission both as a native of Puducherry and Kerala. The court added that the student had filed a false declaration while securing admission to JIPMER Puducherry by submitting that he had not claimed the benefit of residence in any other State.

Justice CV Karthikeyan held that by doing so, he had denied an opportunity to another student who would have applied only under one state. According to the court, such an act had to be taken note of seriously.