Madras High Court Monthly Digest: February 2022 [2022 LiveLaw (Mad) 38 - 2022 LiveLaw (Mad) 79]

Case Title: Muruganantham v. The Director-General of Police & Ors.

Citation: 2022 LiveLaw (Mad) 38

2. 'Policy Decision': Madras High Court Dismisses Plea For Distributing Pongal Gift Hampers To Sri Lankan Refugees Outside Camps

Case Title: Dr Ramu Manivannan v. The Chief Secretary & Others (PIL)

Citation: 2022 LiveLaw (Mad) 39

The Madras High Court has dismissed a plea filed by Retd. Professor Ramu Manivannan seeking directions to the government of Tamil Nadu to extend the Pongal gift hampers to the Sri Lankan Tamil refugees residing outside the rehabilitation camps.

The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu noted that those staying outside the camps without ration cards won't be entitled to the benefits sought and there is no illegality in the policy decision of the government.

3. Extramarital Affair May Amount To 'Mental Cruelty' U/s 498(A) IPC Depending On Facts & Circumstances Of Case: Madras High Court

Case Title: Nakkeeran @ JeroanPandy v. State & Anr.

Citation: 2022 LiveLaw (Mad) 40

In a pertinent judgment, Madras High Court has observed that extramarital affairs can cause grave mental trauma and mental health issues leading to serious consequences in the matrimony, and that in turn, would amount to mental cruelty under Section 498(A) IPC.

Justice D. Bharatha Chakravarty however added that when deciding whether a conduct amounted to cruelty, the Court has to look at the facts and circumstances of the case.

The observation was made while confirming the conviction of a husband accused of engaging in an extramarital relationship with another woman while the marriage with the respondent-wife was still valid.

In its order, the Bench noted that the evidence on record proves the existence of an extramarital relationship that has gone to the roots of the marriage and severely affected the mental health of the wife. This ultimately resulted in the wife leaving the matrimonial home.

4. 'PIL Filed For Publicity Without Proper Research': Madras High Court Bars Litigant From Filing PILs For 2 Yrs, Imposes Cost

Case Title: K.K Ramesh v. Union Of India & Ors.

Citation: 2022 LiveLaw (Mad) 41

In an appeal filed by Actor Vijay to remove the scathing remarks made by the single judge bench while dismissing his petition for tax exemption on a Rolls Royce Ghost Motor Car, Madras High Court has expunged the observations made by single judge bench in paras 3,4,7,8, 11 and 12 of the original order.

A Division Bench of Justices Pushpa Sathyanarayana and Mohammed Shaffiq allowed the writ appeal filed by Actor Vijay and disposed off the connected miscellaneous petition with no costs.

The actor was challenging the order passed by a single bench of Justice SM Subramaniam on July 13, dismissing a writ petition filed by Vijay in 2012. In the judgment, the single bench had made observations to the effect that one becomes a 'real hero' by promptly paying tax. The single bench had also taken a dig at the actor by saying that while his reel life characters were preaching tax compliance, in real life he was seeking exemption.

5. 'No Right Of Permanent Usage': Madras High Court Rejects Koyambedu Tomato Traders' Plea For Allocation Of Specific Parking Ground

Case Title: Thanthai Periyar Tomato Traders Association v. Member Secretary & Ors.

Citation: 2022 LiveLaw (Mad) 42

The Madras High Court has dismissed a plea filed by Thanthai Periyar Tomato Traders Association seeking exclusive allocation of a specific area for loading/ unloading tomatoes from trucks in Koyambedu Market.

Noting that the Market Management Committee (MMC) has been accorded the power under the Tamil Nadu Specified Commodities Markets (Regulation of Location) Act, 1996 to allot spaces for loading/ unloading perishables, the court observed that the Association cannot seek the right of usage merely on the ground that they have availed the land for the said purpose for some time.

Justice S.M Subramaniam was adjudicating the Association's plea for allocating the parking space inside the Market for their exclusive use.

It is pertinent to note that Justice R. Suresh Kumar had made an interim arrangement directing the Koyambedu Market Management Authority to allocate another area of one acre near Gate 14 for loading/ unloading, taking into account the soaring tomato prices last November.

6. Purpose Of Rectification Deed Is To Remove Inadvertent Errors, Clarify Imperfections In Earlier Deed: Madras High Court

Case Title: Vodafone Idea Limited & Anr. v. The Inspector General of Registration & Ors.

Citation: 2022 LiveLaw (Mad) 43

In a recent judgment, the Madras High Court has given some clarifications about the scope of rectification deed and whether the entering of the rectification deed for clarifying a fact would mean the existence of the same in the original sale deed.

The bench of Justice T. Raja and Justice D. Bharatha Chakravarty was considering the appeal of Vodafone Idea Limited under Section 47-A(10) of the Indian Stamps Act,1898 against the order of Inspector General of Registration.

Relying on the Supreme Court judgment in Assistant Commercial Taxes Officer v. Makkad Plastic Agencies, 2011 4 SCC 750 which observed that the meaning of 'rectification' under the Sales Tax Act would include 'removal of defects or imperfections', the High Court held that,

"...Whenever the rectification deed includes any additional property on which the duty is not charged, the rectification deed will be charged as if it were a sale deed as per Section 47-B of the Act. Thus, the scope of rectification deed may differ in every case. Rectification deed can be for rectification of mistake or on an inadvertent error or even clarifying the original document. Apart from correcting an error or removal of defect, Rectification deed can also remove 'imperfection' in the earlier document."

The Madras High Court has held that it can appoint a legal guardian for persons with intellectual disability under Clause 17 of the Letters Patent Act, 1865.

While appointing the petitioner, C. Raghuraman, as the legal guardian and manager of the properties of a relative with 60% mental disability, the bench of Justice Abdul Quddhose also cleared the air about the maintainability of petitions filed seeking the appointment of a legal guardian.

The confusion has been long persisting since the registry of Madras High Court was not entertaining such petitions ever since the single judge bench decision in G. Nithyanandam v. Tmt. D. Saritha & Ors (2013).

In the said case, Madras High Court had directed the petitioner to approach the District Collector under Section 14 of the National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 for appointment of a legal guardian. However, the above case was filed under the Guardians and Wards Act, 1890 and not Clause 17 of Letters Patent.

Reiterating that the date of remand will be computed while considering an application for statutory bail, Madras High Court observed that the right to default bail is part of the procedure established by law under Article 21 of the Constitution, hence an indefeasible fundamental right.

The single-judge bench of Justice M. Nirmal Kumar was considering the plea by a POCSO accused, seeking directions to the Special Court For Exclusive Trial under POCSO Act to grant default bail on an application filed under Section 167(2) CrPC.

The Madras High Court has refused to grant leave to film Director Susi Ganesan to appeal against the decision of a single bench which quashed the Regional Passport Office's order for impounding the passport of renowned filmmaker, poet and artist Leena Manimekalai.

The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy observed that there is no substance in Ganesan's plea, especially after the Supreme Court has refused to interfere with the single bench order.

In the ten-year-old gruesome murder case of K.N. Ramajayam in the heart of Trichy City, Madras High Court has ordered the constitution of a Special Investigation Team in the hopes that a logical conclusion will be reached about the culprit and the motive behind the murder. The deceased was the brother of DMK Minister KN Nehru.

A single-judge bench of Justice V. Bharathidasan pronounced the orders on a plea filed by N. Ravichandran, one of the brothers of the deceased, seeking transfer of investigation from Central Bureau of Investigation to Tamil Nadu State Police.

The Court however noted that the state police investigated the case for nearly five years, and therefore, retransferring the case to TN Police wouldn't be fruitful.

"...It is a very unfortunate situation. The fundamental rights guaranteed under Articles 20 and 21 of the Constitution of India, not restricted only to fair and speedy trial, it also guarantees fair and speedy investigation. The fair and speedy investigation would only lead to advancement of justice and instill confidence in the mind of the victim as well as public. A fair and speedy investigation only would take the case to its logical conclusion."

18. Order VI Rule 17 For Amendment Of Pleadings Do Not Apply To Section 34 Petitions Under Arbitration Act: Madras High Court

Case Title: Bharat Heavy Electricals Ltd. v. Sudhir Cranes Pvt. Ltd.

Citation: 2022 LiveLaw (Mad) 55

Justice S.S. Sundar analyzed the pleadings and noted that no new ground is added which is either outside the scope of the original Arbitral proceedings or without the factual background. The Court was unable to find any new ground for which no foundation is laid in the application for setting aside the award under Section 34.

In regard to the application of principles of Order VI Rule 17 CPC to an amendment application under Section 34 of Arbitration Act, the court ruled that it cannot be applied. But the court was of the view that some amount of discretion in the matter of amendment is still available with the Court and the Court cannot refuse unless the Court has reasons to believe that the amendment proposed are not legitimate or that the amendment is likely to take away the right accrued to the other side

19. Unveiling Adi Shankaracharya's Statue In Kedarnath | 'Live Telecast Of PM's Speech In TN Temples Not For Political Purpose': Madras High Court

Case Title: Rangarajan Narasimhan v. Additional Chief Secretary To Government & Ors. & Other Matters

Citation: 2022 LiveLaw (Mad) 56

Today, Madras High Court has heard a batch of writ petitions filed in public interest seeking various directions to the HR & CE Department for correcting the alleged lapses in the administration of temples.

One of the major issues was an allegation pertaining to the live telecast of Prime Minister Narendra Modi's speech from Kedarnath in 16 TN Temples on the occasion of dedicating the rebuilt samadhi of Adi Shankaracharya.

Narasimhan primarily contended that the respondents must be prevented from hosting gatherings that are of a political nature since the recognised religious practises and Agama Sastras prohibit such meetings.

The Madurai bench of Madras High Court has quashed a defamation case pending against YouTuber M. Maridhas for targeting Dravida Munnetra Kazhagam (DMK) over the announcement urging its cadre to draw 'Kolams' as a form of Anti-CAA Protest.

Justice G.R Swaminathan quashed the case pending in the file of the Thootukudi Judicial Magistrate after observing that the complainant, S.R.S Umari Shankar, is not an aggrieved party and the continuation of the case would be an abuse of the legal process.

The origin of the case can be traced back to Advocate Gayathri Kanthadai who resorted to a novel form of Anti-CAA protest in Besant Nagar by drawing 'kolams' containing slogans. The Advocate was detained by the police that drew ire from the then opposition party, DMK. Later, the Tamil Nadu Police alleged that the detained advocate was associated with Pakistan based NGO "Bytes for all". Before that, DMK had urged the party members to imitate the Advocate's form of protest across Tamil Nadu. Afterwards, a video was uploaded by Maridhas in January, 2020, allegedly defaming DMK Party and Advocate Gayathri Kanthadai.

The complainant had previously submitted before the court that he was a party man and an office bearer of DMK.

"The petitioner (Maridhas) had only made imputations against Ms.Gayathri Kanthadai and DMK. No imputation has been made against DMK partymen as such. The complainant has not suffered any legal injury. His reputation has not in any way been lowered. The Party has not authorised the filing of the complaint. If the partymen or the members of DMK had been defamed, then as a member of a definite class of people, the respondent could have maintained the complaint. Such is not the case here. The complainant on his own has filed the complaint", the court clarified in the quashing order.

21. 90% Police Officers Corrupt, Incapable; Rest Can't Do All The Investigation, Time To Sensitize The Force: Madras High Court

Case Title: S. Vasanthi v. M. Baggyalakshmi, Inspector of Police

Citation: 2022 LiveLaw (Mad) 58

In a contempt petition filed against a Police Inspector alleging willful disobedience of the court order, Madras High Court observed that the police department is running with 90 per cent corruptive officers as on date.

Justice P. Velmurugan remarked that the Department is also plagued by police officials not having the required expertise to go forth with an investigation. According to the judge, only 10 per cent of the officers are 'honest and abled' but they alone cannot do all the investigation.

"...Though this Court finds that the capacity of the investigating officer is not up to the mark, and within her capacity she has investigated the case, the incapacity of the investigation officer cannot be treated as wilfully disobeying of the order of this Court. Unfortunately, as on date, the police department is running with 90% of the corruptive officers as well the officers not having adequate capacity to do the investigation and only 10% of the officers are honest and abled officers. The 10% of officials alone cannot do all the investigation."

22. 'Would Lead To Travesty Of Justice': Madras HC Directs TN Govt To Furnish Anna University Inquiry Report To Ex-VC MK Surappa

Case Title: Prof. M.K Surappa v. The Joint Secretary, Department of Higher Education & Ors.

Citation: 2022 LiveLaw (Mad) 59

The Madras High Court has ordered the TN Higher Education Department to furnish a copy of the Justice P.Kalaiyarasan Inquiry Report to Professor M.K Surappa on the allegations levelled against him.

Directing the respondent department to make available a copy of the report to the former Anna University Vice Chancellor within fifteen days, Justice V. Parthiban noted that failure to furnish inquiry report to the petitioner at this stage would lead to 'travesty of justice, opposed to fair play and good conscience' and Article 311(2) of the Constitution.

Upon receipt of the report copy, the former VC can opt to submit his objections within four weeks.

"....From the conjoined reading of the case laws, the Courts have consistently ruled that there cannot be any slightest departure from complying with the principles of natural justice, namely furnishing of copy of the inquiry Report before the disciplinary authority forms an opinion on the inquiry Report. Such mandate in the opinion of this Court is the sublimest hallmark of fair play and good conscience in action consistent with the constitutional imperatives", the single bench observed.

23. 'Acts Of Notaries In Foreign Countries Can Be Given Legal Recognition By Indian Courts, 'Reciprocity' U/S.14 Of Notaries Act Not Mandatory': Madras HC

Case Title: Dr. Elizabeth Rajan, Daughter of late Mr.Thanarajan v. The Inspector General Of Registration & Ors

Citation: 2022 LiveLaw (Mad) 60

Answering the question of whether a sale deed registered with a power of attorney that was executed in Malaysia is valid or not, Madras High Court has held that the notarial acts of notaries in the foreign countries can be given legal recognition by Indian Courts even in the absence of 'reciprocity' under Section 14 of the Notaries Act.

The Division Bench of Justice Pushpa Sathyanarayana and Justice Krishnan Ramasamy observed that once the original document of power of attorney executed and attested as given in Section 85 of the Evidence Act is produced, it is open to the court to presume that all the necessary requirements for the proper execution of Power of Attorney have been duly fulfilled.

"...Therefore, the purpose of Section 85 is to cut down recording of evidence for such matters like the due execution of Power of Attorney etc., in the present day international commerce. The words 'Notary Public' in Section 85 not only applies to Notaries appointed in India but also include the Notary Public of foreign countries. For raising the statutory presumption, Sections 57 and 85 do not require any recognition of notarial acts of the country or place, as the case may be where such Power of Attorney is executed or authenticated. In fact, there is nothing in the language of Section 14 which requires that only those notarial Acts which are declared as recognized by the Central Government by notification in the official gazette, are to be recognized in India", the court noted.

24. Second Appeal U/S 24 TN Recognised Private Schools (Regulation) Act Available For Even Minor Alterations Of Service Conditions: Madras HC

Case Title: A. Thilakam v. The Joint Director/ Appellate Authority & Anr.

Citation: 2022 LiveLaw (Mad) 61

Madras High Court has recently observed that the second appeal under Section 24 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 is not restricted to the dismissal, removal or reduction in rank or termination of appointment alone.

The single-judge bench of Justice S.M Subramaniam has categorically stated that the appeal remedy before the tribunal under Section 24 extends to any alteration of service conditions in Section 23 after exhausting the right to seek relief before the competent authority, i.e, the first appeal.

Under the Act, the competent authority includes the Joint Director of Elementary Education (Aided Schools) and the tribunal empowered is the respective jurisdictional Principal Sub Court.

"The language employed in Section 24 is that a teacher or other person or the educational agency are entitled to prefer the second appeal. Therefore, even in respect of minor punishment falling under Section 23(b), the educational agency or the teacher or other person may file a second appeal... The second appeal is not restricted with reference to the dismissal, removal or reduction in rank or termination of appointment alone...", the court observed.

25. Taxation Relaxation Act Doesn't Sanction Applying Repealed Provisions: Madras HC Sets Aside Reassessment Notices U/S 148 Of Old Income Tax Act

Case Title: Vellore Institute of Technology, Represented by its Chairman and Managing Trustees v. The Central Board Of Direct Taxes & Anr. and Others.

Citation: 2022 LiveLaw (Mad) 62

The Madras High Court has recently set aside a number of reassessment notices issued under the 1961 Income Tax Act by iterating that the Taxation Relaxation Act, 2020 only extends the period of limitation and not the application of repealed provisions in light of the amended provisions effective from 1st April, 2021.

The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu followed the previous judgments by Allahabad and Delhi High Courts and held that the procedure contemplated under the amended provisions from Sections 147-151 of the Act ought to have been followed for the issue of reassessment notices. The court underscored that Section 3(1) of the enabling act of Taxation and Other Laws (Relaxation and Amendment Of Certain Provisions) Act, 2020 (TOLA, 2020) does not control the validity of amended reassessment provisions and there is not a saving clause in the amended Act to save the pre-existing provisions or defer the operation of substituted provisions.

26. TP Act Enables Oral Lease; Requirement Of Registered Agreement Under 2017 TN Act Not Of Universal Application: Madras High Court

Madras High Court has termed the recent amendment to TN Subordinate Police Officers' Conduct Rules,1964 by the inclusion of Rule 24-C, prohibiting police officers from harassing LGBTQIA+ persons, as a 'milestone' in the approach towards the persons belonging to the community.

The High Court has also accepted the standardised guidelines/ prospective glossary submitted by the state government for referring to LGBTQIA+ persons and instructed the press/ media to follow the glossary in letter and spirit.

Madras High Court has held that police cannot decide the working hours of eateries and restaurants under the guise of law and order problems. The court also observed that it is the bounden duty of police authorities to provide appropriate protection to the eatery shops/hotels/restaurants.

Justice Krishnan Ramasamy pointed out that the police does not have the authority to shut down eatery shops/ restaurants by citing law and order problems when they are not accorded such powers after the amendment to Section 35 vide Chennai City Police (Amendment) Act, 2007.

The court also stated that the Preamble of the Indian Constitution guarantees a democratic republic and not a police state. The court made the above statement in the backdrop of police refusing eateries the permission to function even when they don't have the authority to regulate their timings, thereby depriving the fundamental rights of hotel owners and consumers of food. Such unlawful actions of the police fearing anti-social elements entering the eateries at night can only be equated to 'burning down your own house to get rid of a rat', the court added.

Madras High Court has held that material aspects that were not considered by the Disciplinary Authority can be construed as 'new evidence' by the Reviewing Authority to exercise its power of review.

The court observed that the power of reviewing authority is not intended for mechanical exercise and aims at a clear application of mind. This would include whether the nature of charges have been already proved or not and whether the punishment imposed is in commensuration with the gravity of charges so proved or not proved. The Reviewing Authority shall also examine if all the material aspects ought to be considered by the Disciplinary Authority have been taken into account or not.

Justice SM Subramaniam observed that the course of action taken by the Authority is within the purview of Clause 18 of the Canara Bank Officer Employees (Discipline & Appeal) Regulations 1976, contrary to the arguments raised by the petitioner employee. According to the said provision, the authority can review the order when any new material or evidence which could not be produced or was not available at the time of passing the order under review comes into light.

Madras High Court has dismissed a public interest litigation filed by Indic Collective Trust and its President TR Ramesh challenging the appointment of executive officers to Hindu temples by the HR & CE Commissioner.

The Bench of Chief Justice Munishwar Nath Bhandari and Justice D.Bharatha Chakravarthy observed that the executive officers were not appointed pursuant to malpractice, maladministration, mismanagement or for any other reason given in Rule 3 of Conditions for Appointment of Executive Officers Rules, 2015. According to the court, the above rule has no application in the peculiar circumstances of the case and observed that Executive officers were appointed in the absence of nomination of trustees for 10-12 years.

The court also added that the mandate in Rule 3 about HR& CE Commissioner appointing Executive Officers for a period not exceeding five years won't be applicable either. The court also went on to note that the writ petition is also affected by the doctrine of laches.

40. Should Temples Be Under Govt Control? Aren't Activists Justified In Arguing Govt Should Exercise Same Control Over Mosques & Churches? Madras HC Asks

The Madras High Court has refused to entertain a Public Interest Litigation for strict implementation of medical fees determined by the Government against 50 per cent seats in Private Medical Colleges and Deemed Universities.

The petition filed by Advocate B. Balamurugan alleged that Private Medical Colleges were charging fees to the extent of Rs 7.5- 8 Lakhs when the National Medical Commission has already fixed the fees for Government Quota at Rs. 13,500/-.