Madras High Court Weekly Roundup: July 4 - July 10, 2022

Citations: 2022 LiveLaw (Mad) 281 To 2022 LiveLaw (Mad) 293

NOMINAL INDEX

Sankar v. State, 2022 LiveLaw (Mad) 281

Dr G. Selvarajan v. Dr M.S Santhosh and Ors, 2022 LiveLaw (Mad) 282

M/s.Anantham Retail Private Limited Versus State Tax Officer, 2022 LiveLaw (Mad) 283

G.Francis Raja v. State and another, 2022 LiveLaw (Mad) 284

M/s.KTV Health Foods Pvt Ltd v. Tamil Nadu Civil Supplies Corporation, 2022 LiveLaw (Mad) 285

The Assistant Commissioner of Customs - Imports, Custom House Versus M/s. Mahadev Enterprises, 2022 LiveLaw (Mad) 286

Sridhar Versus The Superintendent of GST, 2022 LiveLaw (Mad) 287

S Krishnamurthy v. Dr Manivasan, 2022 LiveLaw (Mad) 288

V.Krishnamurthy v. The State of TN and others, 2022 LiveLaw (Mad) 289

The State of Tamil Nadu and others v. R Chitradevi and others, 2022 LiveLaw (Mad) 290

C.Soman v. The Secretary, HR&CE and others, 2022 LiveLaw (Mad) 291

Charu K. Bagadia Versus Assistant Commissioner of Income Tax-23(2), Mumbai, 2022 LiveLaw (Mad) 292

B.Ramprakash v. The Government of Tamil Nadu, 2022 LiveLaw (Mad) 293

REPORTS

1. Rigor Of S.33(5) Of POCSO Act Gets Diluted Once Victim Attains Majority: Madras High Court Reiterates

Case Title: Sankar v. State

Citation: 2022 LiveLaw (Mad) 281

Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination.

Justice V.Sivagnanam explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the present case, the victim was no longer a child and had attained majority. Hence, the victim could be called for cross examination to give a last chance to the accused to give his defence.

2. Madras High Court Confirms Order Of CB-CID Enquiry Into Medical Admission Scams

Case Title: Dr G. Selvarajan v. Dr M.S Santhosh and Ors

Citation: 2022 LiveLaw (Mad) 282

The Madras High Court on Monday confirmed the order of the single judge directing a CB-CID enquiry in a matter relating to series of scams relating to admissions to the medical courses in state.

The court passed the order on an appeal filed by Dr G. Selvarajan, former secretary of the Selection Committee, Directorate of Medical Education, seeking a stay of a single bench order whereby the court had found Selvarajan along with others guilty of not conducting the mop-up counselling for the management seats.

The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala observed that the proceedings against the appellant could continue and that the court could only interfere with respect to the stoppage of pensionary benefits to the appellant subject to the outcome of the enquiry proceedings. The disciplinary proceedings were to be completed within a period of six months and no extention of time would be granted. The court also agreed with the direction of the single judge to pay Rs. 4 lakh each to the writ petitioners as the students were dragged to the litigation only for the reason that the writ appellant did not conduct mop-counselling.

3. No Demand Of GST, Interest And Penalty Can Be Made In Form DRC-01A Without Issuance of Section 74(1) Notice: Madras High Court

Case Title: M/s.Anantham Retail Private Limited Versus State Tax Officer

Citation: 2022 LiveLaw (Mad) 283

While quashing the assessment order, the Madras High Court held that a demand for GST, interest, and penalty on Form DRC-01A cannot be made without the issuance of a notice under Section 74(1) of the CGST Act.

The single bench of Justice M.Nirmal Kumar has observed that the department/respondent has not followed the procedure. After the issuance of notice on Form DRC-01A, the department issued Form GST DRC-01A. If the petitioner has any objections and has not paid the tax as determined, a show cause notice must be issued under Section 74(1) of the TNGST Act. After receiving objections and giving an opportunity of personal hearing, the assessment order ought to have been finalised.

4. "DSP's Conduct Unknown To Law, Further Investigation Is Tainted": Madras High Court Quashes Forgery & Cheating Case

Case Title: G.Francis Raja v. State and another

Citation: 2022 LiveLaw (Mad) 284

The Madras High Court recently allowed an appeal for quashing criminal proceedings against one Francis Raja accused of forgery and cheating. The court made the order after raising suspicion about the manner in which the further investigation was conducted, especially by the Deputy Superintendent of Police.

Justice Nirmal Kumar observed a lot of defects in the manner in which further investigation was carried out. The court observed that the Trial Court ought to have noted the manner in which the Deputy Superintendent of Police had carried out the investigation when the case had already been closed as a mistake of fact. Finding that the act of the Deputy Superintendent of Police was not in a manner known to the law, the court remarked that the entire further investigation was a tainted and coloured one. The court thus ordered for quashing of the proceedings before the Judicial Magistrate.

5. Tender Inviting Authority Can't Bind Bidders When Market Is Substantially Altered Amid Delay In Opening Bids: Madras High Court

Case Title: M/s.KTV Health Foods Pvt Ltd v. Tamil Nadu Civil Supplies Corporation

Citation: 2022 LiveLaw (Mad) 285

The Madras High Court has allowed a petition for quashing the tender process after the bidders approached the court citing Indonesia's ban on the export of RBD Palmolein and other palm products as a Force Majeure Event which made it impossible for them to complete the tender process.

Justice GR Swaminathan noted that Indonesia is a major supplier of Palmolein and therefore the ban order imposed by the said exporter itself has momentous consequences on the market.

The major factor that weighed with the court in granting relief was that the Tender Authority failed to open the bid on time and in the intervening period, the ban was imposed. Hence, it was of the view that though bidders offers constitute "Standing Offers" so as to bind them the moment the tenders were opened and accepted by the Respondent Corporation, however, this position will follow only where the tender had taken place as per the tender notification.

6. Madras High Court Allows Re-Exportation Of Betelnut Products Subject To Execution Of A Bond To Cover Value Of Goods

Case Title: The Assistant Commissioner of Customs - Imports, Custom House Versus M/s. Mahadev Enterprises

Citation: 2022 LiveLaw (Mad) 286

The Madras High Court bench of Justice S.S. Sundar and Justice S.Srimathy has allowed the re-exportation of betelnut products subject to the execution of a bond to cover the value of the goods.

The respondent/assessee imported betelnut products with a particular description. The department stated that the assessee had imported goods by mistake. The appellants sought to levy duty by classifying the goods under Chapter VIII. However, the assessee, stating that he cannot afford to pay tax under the classification proposed, submitted a representation to the appellants that the respondent may be permitted to re-export the goods to avoid tax being assessed under Chapter VIII.

The court noted that the respondent had no objection to submitting himself for enquiry. As a matter of fact, the investigation was going on and the respondent had already appeared before the investigative agency once. The court directed the appellants to permit the respondent to exercise the option as per the order of a single judge upon the respondent's executing a bond to the full value of the goods that are sought to be re-exported.

7. Madras High Court Dismisses Plea Alleging Harassment By GST Department

Case Title: Sridhar Versus The Superintendent of GST

Citation: 2022 LiveLaw (Mad) 287

The Madras High Court has dismissed the petition alleging harassment by the GST department.

The single bench of Justice N. Sathish Kumar has observed that the term "harassment" is so subjective that it cannot be encapsulated in an objective criterion. The petitioner, having given a complaint, is bound to cooperate with the police for an inquiry.

The court noted that the enquiry was pending and, without cooperating with the police, the petitioner could not seek such a blanket direction.

The court directed the police to issue a notice within two weeks to cause the appearance of the petitioner for enquiry. After enquiring the petitioner, the police may either register a complaint, if any cognisable offence is made out or close the complaint.

8. Madras High Court Issues Directions For Registration And Inspection Of All Old Age Homes In The State, Directs Setting Up Of Grievance Cell

Case Title: S Krishnamurthy v. Dr Manivasan

Citation: 2022 LiveLaw (Mad) 288

Elaborating on the thought that the measure of a society is the way in which it treats its most vulnerable, the Madras High Court recently issued a slew of directions to the State Government for proper maintenance of the Old Age Homes in the state.

These directions involved frequent inspections, compliance to the executive orders, registration of old age homes, maintenance of record, cancellation of registration in case of non-compliance, and establishment of a grievance cell.

The bench of Justice R Mahadevan and Justice Sathya Narayana Prasad was adjudicating upon a contempt petition alleging that an earlier order of the Government directing the State to ensure proper compliance of the Government Order dealing with proper administration of Old Age Homes. While issuing direction the court also remarked that the society could not be positively transformed through judicial directions alone and the society had major role to play in ensuring the well being of the senior citizens of the country.

9. Madras High Court Imposes 1 Lakh Cost On Litigant Filing & Withdrawing Claims Based On State's "Political Climate"

Case Title: V.Krishnamurthy v. The State of TN and others

Citation: 2022 LiveLaw (Mad) 289

Coming down heavily on a litigant for approaching the court on his whims and fancies depending upon the change in the political climate of the State, the Madras High Court recently dismissed a plea and imposed heavy costs.

Justice Anand Venkatesh noted that from the conduct of the Petitioner, it was clear that he would use this Court by filing Writ Petitions whenever the political climate was not in his favour and withdraw the same once it turns in his favour.

10. Pension Scheme Can Be Claimed From Date Of Entering Into Service, Not Date Of Approval Of Regular Appointment: Madras High Court

Case Title: The State of Tamil Nadu and others v. R Chitradevi and others

Citation: 2022 LiveLaw (Mad) 290

The Madras High Court recently observed that the relevant date while considering the pensionary benefits of Teachers would be the date on which the teacher entered into service and not the date on which the appointment was actually confirmed.

Justice S. Vaidyanathan and Justice N Mala relied on the decision in V.Vasanthi v. State of Tamil Nadu wherein, on similar facts, the court had held that the service period of teachers commences from the date of appointment and not from the date of approval, even though the monetary benefits start to accrue only from the date of completion of the training. Thus, the service rendered before the completion of training was also to be considered for pension.

11. Person Belonging To Another Religion Can't Be Prevented From Entering Temple If He Has Faith In That Hindu Deity: Madras High Court

Case Title: C.Soman v. The Secretary, HR&CE and others

Citation: 2022 LiveLaw (Mad) 291

Coming down heavily on a Petitioner seeking direction that the non-Hindus should not be permitted to participate in the Kumbabishegam festival of Arulmighu Adikesava Perumal Thirukovil at Thiruvattar, the Madras High Court held that a person belonging to any religion should neither be prevented nor prohibited entry into a temple.

Justice PN Prakash and Justice R Hemalatha approached the issue with a broader prospective. The court even went on to give examples of temples playing songs rendered by Dr. KJ Yesudas, a Christian by birth and how Hindu Worshippers visited Vailankanni Church and Nagore Dargah regularly.

Additionally, the court also pointed out that when such a public function like the Kumbhabhishegam of a temple is performed, it would be impossible for the authorities to check the religious identity of every person to permit entry into the temple.

12. Reopening of IT Assessment By Officer Having No Jurisdiction: Madras High Court Invalidates Proceedings

Case Title: Charu K. Bagadia Versus Assistant Commissioner of Income Tax-23(2), Mumbai

Citation: 2022 LiveLaw (Mad) 292

The Madras High Court invalidated the reassessment procedures on the basis that the reopening of the income tax assessment was conducted by an officer without jurisdiction.

The division bench of Justice R. Mahadevan and Justice J.Sathya Narayana Prasad has observed that the ACIT Mumbai, who recorded the reasons for reopening the assessment, has no jurisdiction over the appellant, to issue a notice dated 28.03.2018. Though the files pertaining to the reassessment proceedings of the appellant were transferred, the ACIT Chennai has no authority to continue the reassessment proceedings. Hence, the notice issued by him was also held to be invalid.

The court held that the notice issued by the ACIT Mumbai under section 148 as well as the consequential notice issued by the ACIT Chennai cannot be allowed to be sustained.

13. Efflux Of Time Valid Ground To Reject Claim For Compassionate Appointment: Madras High Court

Case Title: B.Ramprakash v. The Government of Tamil Nadu

Citation: 2022 LiveLaw (Mad) 293

The Madras High Court has observed that a compassionate appointment cannot not be claimed as a matter of right, and only if a person is entitled under the terms and conditions so specified, can the scheme be extended. The court observed that a compassionate appointment is not a regular appointment as no selection is conducted, no suitability or eligibility is tested but the appointment is under exceptional circumstances i.e, the death of an employee.

Justice S.M Subramaniam observed that Providing compassionate appointment after a lapse of many years would not only defeat the purpose and object of the scheme, but also the penurious circumstances arose on account of the sudden death became vanished.

In the present case, the mother of the petitioner who was working as a Junior Assistant in the Office of the Commissioner of Police died on 14.04.1995. The court also noted that the application was filed on 17.03.2004, i.e. after a period of three years from the date of death of the deceased. "Now after a lapse of about 27 years, the benefit of the Scheme could not be extended in favour of the petitioner", the court noted.

OTHER DEVELOPMENTS

1. To Help Lawyers Who Are Young Mothers, Madras HC Judge Adopts Policy To Grant Them Specific Time Slots For Arguments

In a welcoming gesture, Justice GR Swaminathan of Madurai bench of the Madras High Court issued a letter on Monday to the members of the bar informing them that lawyers who are young mothers could ask for a specific time slot to argue their case after informing the Court Officers.

This was however subject to the condition that such advocates should pass on the dates and events, case laws which they are going to rely on and the proposition which they want to advance to the court a day earlier. The advocates should also be well prepared so that they consume minimum time of the court.

2. Grant Reservation To OBCs In Local Body Elections, Bring Census Under Concurrent List: DMK MP Wilson Writes To Prime Minister

Senior Advocate P Wilson, also a Member of Parliament from DMK party, has addressed a letter to Prime Minister Narendra Modi urging for due representation of the Other Backward Classes (OBC) in local bodies, like Municipalities and Panchayats.

He further suggested moving census, which is presently in the Union List as per Entry 69, List I, Schedule VII of the Constitution, to the Concurrent List so that the States can conduct their own census and the same would aid the State in maintaining an accurate list of backward classes contemplated under Article 342-A(3).

3. TN Chief Secretary Writes To All Departments For Timely Implementation Of Court Orders To Avoid Contempt Proceedings

The Chief Secretary to the State of Tamil Nadu, Mr. V Irai Anbu recently circulated a letter to his subordinates including Additional Chief Secretaries, Principal Secretaries, Secretaries to Government, all heads of departments and all district collectors calling upon them to implement court orders within time for avoiding contempt proceedings.

The letter was in response to an observation made by the Chief Justice expressing displeasure over delay in implementation of Court Orders by the Departments. The Chief Secretary also observed that of late, there was a delay in filing the writ appeals also which caused the petitioners in concerned cases to file contempt against Government Department for non-implementation of court orders.