Madras High Court Weekly Round-Up: January 3 To January 9

Case Title: Fr P. George Ponniah v. The Inspector of Police Citation: 2022 LiveLaw (Mad) 6

While refusing to quash an FIR registered against the Catholican Diocese Priest P. George Ponnaih for an inflammatory speech against the Hindus, the Madras High Court made a few observations about religious conversions.

Justice GR Swaminathan, who considered the case, observed that it is important to maintain the status quo regarding religious demography. "If there is a serious subversion of the status quo, calamitous consequences may follow", Justice Swaminathan stated. While saying that an individual's choice to change religion is protected by the Constitution and must be respected, Justice Swaminathan said that religious conversions cannot be a "group agenda".

The priest was booked by Arumanai police for his speech at a meeting convened for paying homage to late Fr. Stan Swamy. Referring to the offences under which he was charged, the court observed that the priest cannot insult or outrage another religion and still claim immunity from the application of Section 295A, 153A and 505(2) of IPC. The court has however quashed the offences under Section 143, 269 and 506(1) of IPC and Section 3 of Epidemic Diseases Act, 1897.

2. S.25-O ID Act| Can't Permit Authority To Sit On Closure Application & Operate Deeming Provision: Madras HC Sets Aside Closure Of 2 Textile Mills

Case Title: Swadeshi Panchalai Thozilalar v. The Secretary, Industries and Commerce Citation: 2022 LiveLaw (Mad) 8

The Madras High Court has set aside notices for the closure of two Mills in Puducherry, whose history dates back to the French Colonial period, on the ground that provisions of the Industrial Disputes Act, 1947 were not complied with in its true spirit.

Justice S. Vaidyanathan noted that the Mills were closed without issuing any notice of enquiry under Section 25-O of the 1947 Act for making objection before the Authority concerned and without taking up the matter for hearing.

It allowed the writ petitions filed by two separate registered trade unions and passed a common order for both Swadeshi Cotton Mill and Bharathi Mills considering them as a single entity.

If the Authority is allowed to operate the deeming provision without conducting any enquiry, the very purpose of the provisions of the Act itself will be defeated, as there is not even an attempt to conduct an enquiry, which is mandatory on the part of the concerned Authority under Section 25(O)(2) of the I.D.Act, 1947, observed the court.

3. Rental Dues Of Cold Storage Keeping Seized Contraband On Magistrate's Order: Madras HC Directs Payment From Victim Compensation Fund

Case Title: Trichy Cold Storage (P) Ltd., Rep.by its Manager v. The Superintendent of Police, Trichy & Anr. Citation:2022 LiveLaw (Mad) 7

In a peculiar case, the Madras High Court has ordered payment of Rs 1.25 lakh to a cold storage facility keeping seized dates, after a Magistrate Court ordered the Police to store the perishable contraband until disposal of the case.

The storage bill had mounted to Rs.3,54,000/-. The payment is directed from the Victim Compensation Fund by the jurisdictional magistrate court.

Considering the factual circumstances surrounding the issue, the High Court observed that the jurisdictional magistrate was not justified in directing the police to keep the perishables in safe custody via its October 2018 Order.

"Section 459 of Cr.PC authorizes the magistrate to direct sale of seized properties that are subject to speedy and natural decay. Fruits obviously come under the said category. The prosecution would not in any way be weakened by the disposal of the goods. The fake labels and wrappers are sufficient to establish the case against the accused", the court observed, adding that the order was 'erroneous in extreme'.

4. Appeal Against Admission Of Winding Up: 'Moonshine Defence By SpiceJet, Ploy To Avoid Liability': Swiss Corporation Argues Before Madras High Court

Case Title: SpiceJet Limited v. Credit Suisse AG.

After hearing the caveator Credit Suisse AG at length, Madras High Court has decided to hear the appeal against the admission of SpiceJet's winding up further on January 10, 2022. A Division Bench of Justice Paresh Upadhyay and Sathi Kumar Sukumara Kurup heard the counsel appearing for the Switzerland based Corporation, Advocate Rahul Balaji.

Credit Suisse AG contended that the admission of winding up and appointment of provisional liquidator by the single judge bench does not suffer from any illegality, procedural or otherwise The counsel appearing for the appellant, Senior Advocate Ramakrishnan Viraraghavan had earlier contended that a party who has violated a public safety statute cannot demand enforcement of a claim rendered illegal.

On the merits, the counsel argued that the submission of SpiceJet that they were unaware of the alleged non-approval from DGCA is inherently false. The argument that they came to know about the non-existence of valid license from DGCA only in 2020 via an RTI application is negated by the finding of UK Arbitral Tribunal in favour of SR Technics back in 2017.

Hearing From Day 1- 'Claim Not Legally Enforceable, Admission Of Winding Up Laden With Procedural Infirmities': SpiceJet Files Appeal Before Madras High Court

5. Rajiv Gandhi Assassination: Former DGP Caught In The Line Of FireGranted Permanent Custody Of Cap And Badge Marked As Exhibits In Trial

Case Title: Dr Prateep V. Philip, I.P.S. (Retd.) v. Deputy Superintendent of Police, CBCID, Chennai

IPS officer Prateep V. Philip, who retired as Director General of Police- Training, has been allowed the permanent custody of the bloodstained cap and name badge worn by him on the day of former Prime Minister Rajiv Gandhi's assassination.

An Additional Sessions Judge in Chennai granted permanent custody to the officer who was on duty as Additional Superintendent of Police, Kancheepuram in May, 1991 when the former Prime Minister was assassinated at Sriperumpadur.

On September 30, 2021, the city civil court in Chennai had permitted the temporary custody of the items upon execution of a bond of Rs 1 lakh so that he could wear the same on his retirement day.

While allowing the Criminal Miscellaneous Petition filed under Section 452 Cr.P.C, the judge, T Chandrasekharan, has allowed the officer to keep the cap and the badge subject to two conditions. Firstly, the officer can retain the items on the condition that CBI takes high-resolution photographs of both items which must be produced before the court with the signature of the petitioner in a time-bound manner, i.e, within three weeks. These high-resolution photographs would be admissible under Section 65 B of the Indian Evidence Act. Secondly, the petitioner should also abide by the condition that the cap, as well as the badge, must be produced before the court as and when required under exceptional circumstances.

6. Union Can't Usurp the Powers Of State Governments': Plea Before Madras High Court Challenging The Vires Of Dam Safety Act

Case Title: S. Ramalingam v. Union of India & Ors.

On Senior Advocate P. Wilson's request to list the matter urgently, Madras High Court has posted the plea challenging the vires of the recently enacted Dam Safety Act, 2021 on January 10.

The public interest litigation preferred by DMK MP from Mayiladuthurai, S. Ramalingam, was mentioned before the bench on Tuesday. Thereafter, the first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu has decided to hear the matter after the senior counsel submitted that the Union Government was encroaching into state's domain by enacting the legislation.

The impugned Dam Safety Act was notified in the Gazette on 14th December. The primary contention of the petitioner is that the Parliament lacks the legislative competence for enacting the legislation. Terming the impugned Act as 'non-est in law' and 'void ab initio' for blatant violations of Articles 14, 19 and 21 of the Indian Constitution, the petition also mentions the other grounds under which the challenge will be sustained.

7. 'Few Former Constitutional Authorities & Ex-Legislators Misusing State Emblem': Madras High Court Issues Directions To Prosecute Offenders

Case Title: S.Mukachand Bothra (Deceased) & Anr v. The Central Government & Ors. Citation: 2022 LiveLaw (Mad) 5

Coming down heavily on the misuse of State Emblems, Seals and Symbols, Madras High Court has issued a set of directions to ensure the compliance of the State Emblem of India (Prohibition of Improper Use) Act, 2005 and the Rules framed thereunder.

A single-judge bench of Justice S.M. Subramaniam opined that not even a single case has been registered by Tamil Nadu Police against unauthorised use of such Emblems, Flags, names of departments and other Symbols on vehicles or elsewhere. The court made the above inference after referring to the status report filed by DGP who was suo motu impleaded. According to the status report, apart from registering cases under Motor Vehicles Act and for impersonation of public servants under Sections 170 and 171 of IPC, the Police 'miserably failed to register any case under the Act 50 of 2005', noted the court.

The court issued the directions in a case where a former Member of Parliament, R. Anbarasu, lodged a formal complaint by affixing the Indian National Emblem in his letter pad. After the receipt of the said complaint by the Commissioner of Police, the original (now-deceased) writ petitioner was arrested and kept in custody for 21 days. Though the criminal case was quashed by Madras High Court in 2012, the son of the original petitioner impleaded himself and decided to pursue the issue of illegal use of Emblems on account of the hardships faced by his father. M. Gagan Bothra, the son, also stated that the complaint was lodged by the former MP due to a dispute arising out of a loan given by his father.

8. No 'Public Purpose' For Veda Nilayam Acquisition And Conversion To Memorial: Madras High Court Dismisses AIADMK Plea

Case Title: All India Anna Dravida Munnetra Kazhagam & Another. v. J.Deepak & Ors. & Connected Matters Citation: 2022 LiveLaw (Mad) 4

In third party appeals against the single judge order quashing land acquisition proceedings of 'Veda Nilayam', Madras High Court held that no 'public purpose' is served by converting the erstwhile residence of Late J. Jayalalitaa into a second memorial.

While dismissing the appeals preferred by All India Anna Dravida Munnetra Kazhakam (AIADMK) and former AIADMK Minister C.Ve Shanmugam, Madras High Court has also held that AIADMK wrongfully equated itself with the appropriate government in acquisition proceedings.

A Division Bench of Justice Paresh Upadhyay and Sathi Kumar Sukumara Kurup held that the state's land acquisition proceedings were riddled with procedural irregularities, concurring with the findings of the single judge bench setting aside the acquisition.

The court held that the appellants have failed in raising any substantial challenge against the inferences made by the single judge bench about procedural irregularities. Though the acquisition was of a private residential property, the state didn't even consider the status of writ petitioners as owners of the property. However, since the acquisition and not the ownership is in question before the current bench, the court answered that the procedural irregularities explained by the single judge bench with regards to the 2013 Act and Rules will hold true.

9. 'Right To Relax Can't Be Curbed Fearing Breach Of Morality': Madras HC Disagrees With Another Bench's Direction To Install CCTVs In Spas

Case Title: Payel Biswas v. The Commissioner of Police, Trichy City & Ors. Citation: 2022 LiveLaw (Mad) 3

While considering a writ petition filed for obtaining a 'No Objection Certificate' from the Police for running a cross-massage centre, the Madras High Cour has also analysed a recent single judge bench order for the installation of CCTV cameras inside Spa and Massage Centres.

The court observed in clear terms that mere apprehension about a breach of morality cannot be a valid ground to curb the right to relax, which is a part and parcel of the right to privacy. Referring to the landmark decision in Navtej Singh Johar & Ors. vs. Union of India & Ors, (2018) 10 SCC 1, the single judge bench pointed out that 'constitutional morality shall trump public morality'.

Justice G.R Swaminathan primarily relied on Puttaswamy judgment (K.S Puttaswamy v. Union of India, (2017) 10 SCC 1) that elaborates about the different facets of right to privacy guaranteed under Article 21. These forms of the right to privacy are i) a right to bodily autonomy, ii) a right to informational privacy and iii) a right to a privacy of choice.

"The installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person's bodily autonomy, These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter" the court held.

The court was referring to the order passed by Justice S.M Subramaniam in C P Girija v. Superintendent of Police & Ors. dated 20^th December, 2021. In the said order, the bench directed the installation of functional CCTV cameras in all spas, massage centres, therapy centres etc. in the State of Tamil Nadu. It was also directed by the court that secluded or closed rooms for conducting business activities must be avoided in spas and massage centers.

10. Madras University Losing Its Reputation Rapidly, Erring Officials Must Be Dismissed From Service': High Court

Case Title: The University of Madras, Rep. By its Registrar v. Dr. S. Bhaskaran & Ors. Citation: 2022 LiveLaw (Mad) 2

The Madras High Court recently expressed its dismay over the rapidly declining reputation of the Madras University, and observed that disciplinary proceedings must be instituted against errant officials for not maintaining absolute integrity and devotion to duty.

The remarks were made by a division bench of Justice S. Vaidyanathan and Justice A.A. Nakkiran after it noted irregularity in the process for appointment of Assistant Librarians in the University.

The Court observed that the University has flouted the regulations by regarding the disputed post as promotional. The bench observed that UGC Regulations and the Standing Regulations of the University of Madras does not treat it as a promotional post and it could have been filled only through Direct recruitment as per the then existing service conditions.

It noted that technical wing and library wing are completely different as per the Rules, and Assistant Librarian is the Feeder Category that can be filled only through direct recruitment.

11. Liquor Consumption In Clubs & Associations Require Valid Licenses, Cannot Act Beyond The Scope Of Registered Bye-Laws: Madras High Court

Case Title: M/s.The Kancheepuram Reading Room and Tennis Club, Represented by its Secretary v. The Director-General of Police & Ors Citation: 2022 LiveLaw (Mad) 1

Madras High Court has recently rejected the relief sought by a Club to forbear the insisting upon obtaining FL2 License for allowing its members to consume liquor (bought from government-approved shops) inside the Club premises.

A single-judge bench of Justice S.M Subramaniam held that Clubs registered under Tamil Nadu Societies Registration Act with its bye-laws also registered under the provisions of the Act must strictly follow the objects and purpose already set out in the bye laws. When alcohol consumption is beyond the scope of the bye-laws of the petitioner club, it must be r/w Rules relating to the grant of licenses in Chapter IV of The Tamil Nadu Liquor (License and Permit) Rules, 1981, which makes it abundantly clear that the Club cannot allow its members to consume alcohol in its premises without FL.2 License and an amendment to the existing bye-laws.

F.L.2 license is stipulated for 'license for possession of liquor by a non-proprietary Club for supply to members' in the Rules. Even for consumption of liquor in a Club or Association, a license must be obtained for the possession of liquor and for supply to its members inside the premises, the court added.

12. Madras High Court Tells TN Election Commission To Videograph Every Stage Of Urban Local Body Polls

Case Title: AIADMK v. Tamil Nadu State Election Commission & Anr.

The Madras High Court has asked the Tamil Nadu State Election Commission (TNSEC) to videograph the entire election process during the upcoming urban local body polls, starting from filing of nominations to counting of votes.

The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P D Audikesavalu disposed of the writ petition filed by All India Anna Dravida Munnetra Kazhakam (AIADMK) seeking directions to TNSEC for free and fair conduct of urban local body elections.

TNSEC had submitted that it has already issued guidelines for the purpose- the entire election process will be video graphed as per the Manual on Model Code of Conduct (2019) and Standard Operating Procedure(2016), and Handbook of the Returning Officer (2019) by the Election Commission of India (ECI).

Therefore, the court deemed it fit to dispose of the writ petition noting that no further orders are required. However, it clarified that videography would involve all stages from the filing of nominations by candidates, polling of votes, keeping boxes in safe custody inside storerooms, counting of votes and declaration of results.

13. Surge In Omicron Cases: Madras High Court Reverts To Virtual Hearing Of Cases

Due to the surge in Omicron variant of Covid-19 cases, Madras High Court has issued a notification keeping in abeyance the previous notification for resumption of physical hearings completely. As per the notification dated 2nd January, 2022, Acting Chief Justice Munishwar Nath Bhandari has issued directions to follow virtual hearing, excluding both physical as well as hybrid modes of functioning till further orders. The decision to follow only virtual hearing from 3rd January 2022, will be applicable both to the Principal Seat at Madras and the Madurai Bench.

NGT (Southern Zone)

16. Ennore Thermal Power Plant Project: 'Can't Stop Authorities From Exercising Statutory Powers'; NGT Southern Zone Refuses To Reschedule Public Hearing

Case Title: R.L. Srinivasan & Anr. v. Tamil Nadu State Pollution Control Board & Ors.

The Southern Zone of the National Green Tribunal (NGT) has refused to reschedule the public hearing on Ennore Thermal Power Plant project. The public hearing for TANGEDCO's coal-fired 660 MW power plant is scheduled to be held on 6^th January by Tamil Nadu Pollution Control Board (TNPCB).

A bench of Justice K.Ramakrishnan ( judicial member) and Dr. Satyagopal Korlapati (expert member) observed that the prayer in the application for rescheduling the date of public hearing does not fall within the purview of Section 14 of the National Green Tribunal Act, contrary to the contentions put forward by Applicants.

NGT opined that the concerned authorities have the discretion to take a decision on the conduct of public hearings. Moreover, MoEF&CC's Office Memorandum in 2020 (during the pandemic) did not prohibit public hearings provided that some restrictions were put in place.

Observing that the tribunal cannot give directions to the authorities to not exercise their statutory powers ( TNPCB and District Collector in this application), it was added by the Bench that the latter can choose to postpone the date or not upon satisfaction of the prevailing situation and the Government Orders.