Madras High Court Weekly Round-Up: April 25 2022 To May 1, 2022

Citations: 2022 LiveLaw (Mad) 178 To 2022 LiveLaw (Mad) 191

NOMINAL INDEX

K. Gopinath v. The Director of School Education Department and others, 2022 LiveLaw (Mad) 178

State of Tamil Nadu Versus Deputy Commissioner (CT) (FAC), 2022 LiveLaw (Mad) 179

The Secretary, Tamil Nadu Olympics Association v. S. Nithya and Others, 2022 LiveLaw (Mad) 180

M Thamilselvi @ Meera Mithun v. The State, 2022 LiveLaw (Mad) 181

Sri Ram Samaj v. The Commissioner and Others, 2022 LiveLaw (Mad) 182

N. Karunanidhi v. The Union of India and Others, 2022 LiveLaw (Mad) 183

Udayanithi Stalin v. R Premalatha, 2022 LiveLaw (Mad) 184

Suresh Kumar Kankariya v. K Jigibai @Pushpammal, 2022 LiveLaw (Mad) 185

M/s.Color Home Developers Pvt. Ltd. v. M/s.Color Castle Owners Society, 2022 LiveLaw (Mad) 186

Indira Gandhi Centre for Atomic Research v. D Ganeshlan and Another, 2022 Livelaw (Mad) 187

Tvl.Asian Paints Limited Versus The Assistant Commissioner (ST), 2022 LiveLaw (Mad) 188

The Chief Engineer / Metropolitan Transport Project (Railways), Southern Railway and Anr. versus M/s. Progressive-Aliens, 2022 LiveLaw (Mad) 189

S. David Leo v. The Principal Secretary to the Government and Others, 2022 LiveLaw (Mad) 190

A. Periyakaruppan v. The Principle Secretary to Government and Another, 2022 LiveLaw (Mad) 191

1. "Let Supreme Court Decide": Madras High Court On Plea For Restricting Dresses &Accessories Of Religious Significance In Schools

Case Title: K. Gopinath v. The Director of School Education Department and others

Citation: 2022 LiveLaw (Mad) 178

The Madras High Court bench of Justice M Duraiswamy and Justice T.V Thamilselvi dismissed as withdrawn a petition filed for directing the Department of School Education to restrict the students from wearing dresses and accessories with religious significance to the schools and educational institutions.

The bench observed that since the issue is already pending before the Supreme Court, it is not in a position to consider it at this stage. The petition was filed by advocate K Gopinath, leader of Hindu Munnetra Kazhagam.

2. Assessee To Claim Refund of Tax Collected By State Without Authority Within 3 Years From The Date of Payment: Madras High Court

Case Title: State of Tamil Nadu Versus Deputy Commissioner (CT) (FAC)

Citation: 2022 LiveLaw (Mad) 179

The Madras High Court bench of Justice R.Mahadevan and Justice Mohhammed Shaffiq has held that any tax collected without authority would certainly amount to unjust enrichment and the assessees must claim a refund of the tax collected or retained by the state within three years from the date of their payments to the department.

The issue raised was whether the doctrine of "unjust enrichment" would apply in the absence of an express provision and whether "unjust enrichment" would apply to taxes paid on raw materials and captively consumed in the manufacture of finished goods within the state.

The court held that "unjust enrichment" means the retention of a benefit by a person that was unjust or inequitable. It occurs when a person retains money or benefits that, in justice, equity, and good conscience, belong to someone else. As a result, the doctrine of "unjust enrichment" states that no one can be allowed to enrich inequitably at the expense of another.

3. "What Is The Need For Politicians In Sports?": Madras High Court Dismisses Appeal Against Single Judge Order For Appointments In Sports Associations

Case Title: The Secretary, Tamil Nadu Olympics Association v. S. Nithya and Others

Citation: 2022 LiveLaw (Mad) 180

The Madras High Court on Tuesday dismissed a writ appeal filed by the Tamil Nadu Olympic Association challenging a single judge order specifying that only sportsperson should be appointed as President or Vice President of the sports associations and organisations.

Coming down strongly on the appellants, the bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy highlighted the plight of sportspersons in the country. The court highlighted how worst facilities are given to sportspersons who represent the district, state and country and all the good facilities are given to politicians who accompany them and who have no connection to sports.

The court further asked why a person having any affiliation to a political party be appointed as the chairman, president or vice president of these organisations. When it is neither their profession or nor their expertise, what is the need for them to enter into this area, it asked.

4. Madras High Court Denies Anticipatory Bail To Tamil Actress Charged With Making Objectionable Remarks Against CM

Case Title: M Thamilselvi @ Meera Mithun v. The State

Citation: 2022 LiveLaw (Mad) 181

The Madras High Court bench of Justice G Jayachandran dismissed a plea for anticipatory bail filed by tamil actress Tamilselvi alias Meera Mithun, charged for making obscene and objectionable remarks against the Chief Minister MK Stalin in a whatsapp group chat with the makers of her upcoming film "Peiya Kaanom".

The court further directed the police department to arrest the actress and conduct an enquiry into the matter.

The actress, charged under Sections 294(b), 153, 504, 505(i) (b) and 506(i) of the IPC read with Section 67 of the Information Technology Act, had moved the High Court seeking anticipatory bail. The case was registered on a complaint filed by producer Surulivel against whom also she had made derogatory remarks.

5. "Principles Of Natural Justice Affected": Madras High Court Sets Aside HR&CE Order Taking Over Ayodhya Mandapam

Case Title: Sri Ram Samaj v. The Commissioner and Others

Citation: 2022 LiveLaw (Mad) 182

The Madras High Court set aside the order of Hindu Religious and Charitable Endowment (HR&CE) Department for taking over the administration of Ayodhya Mandapam and for appointing a "Fit Person" to look into the administration of the Samaj.

The bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy further set aside the order passed by the Single Judge dismissing the writ petition filed by the Ram Samaj citing alternative remedies.

The court directed the department to handover the administration of the Ayodhya Mandapam to the Samaj along with all the records. The court further gave liberty to the department to conduct a fresh enquiry and proceed in the manner afresh after following the due procedure of law.

6. Continued Employment In Public Service Projects For Several Years Creates Rights On Employees: Madras HC Directs State To Frame Regularization Scheme

Case Title: N. Karunanidhi v. The Union of India and Others

Citation: 2022 LiveLaw (Mad) 183

The Madras High Court bench of Justice V Parthiban has recently held that when a competent authority/government makes an appointment to an unsanctioned post and when the employee has been engaged in such public service project for long years, the Government cannot turn a blind eye to these employees and say that they have no right for regularisation.

The court also directed the State Government to formulate schemes for the regularisation of such employees.

7. Madras High Court Rejects Election Petition Challenging Udhayanidhi Stalin's Victory

Case Title: Udayanithi Stalin v. R Premalatha

Citation: 2022 LiveLaw (Mad) 184

Madras High Court on Thursday allowed a petition filed by Actor and Chepauk-Thiruvallikeni MLA Udayanidhi Stalin to reject an election petition filed by one R. Premalatha challenging his victory in the 2021 elections.

Justice V Bharatidasan while passing the orders observed that Udayanidhi Stalin had given details regarding the 22 criminal cases pending against him and that there was no material in the election petition to substantiate the allegations made against him.

The election peitioner had challenged the MLA's victory stating that he had not disclosed material information as per Form 26 of The Conduct of Election Rules, 1961. She further alleged that the MLA had colluded with the Presiding/section officer who was the MLA'S wife's teacher.

8. Cross-Objections To Adverse Findings Not Necessary When Decree Is Entirely In Favour Of Such Party: Madras High Court

Case Title: Suresh Kumar Kankariya v. K Jigibai @Pushpammal

Citation: 2022 LiveLaw (Mad) 185

The Madras High Court bench of Justice Anand Venkatesh recently observed that when the court makes adverse findings against a party, it need not file a cross-appeal or a cross-objection to the same where the decree is entirely in favour of such party.

Such adverse findings can be challenged in the appeal filed by the other party and the Court is entitled to decide the same, it added.

The right for filing a cross objection against an adverse finding provided under the amended Order XLI Rule 22 CPC is mandatory only when the decree is partly in favour of or partly against the party, the Court further held.

9. Section 34 Proceedings Are Summary In Nature; Does Not Permit Additional Evidence To Be Filed Unless Absolutely Necessary: Madras High Court

Case Title: M/s.Color Home Developers Pvt. Ltd. v. M/s.Color Castle Owners Society

Citation: 2022 LiveLaw (Mad) 186

The High Court of Madras has held that the challenge proceedings under Section 34 of the A&C Act are summary in nature, therefore, the same shall be decided based on the record that was available with the arbitral tribunal and no additional document shall be permitted to be brought in at that stage unless absolutely warranted.

The Single Bench of Justice M. Sundar further held that the court would not allow any additional document under Section 34 petition if there was nothing that prevented the petitioner from furnishing the same document before the arbitrator.

10. Employment Obtained Through Fake Caste Certificate Is 'Void Ab Initio': Madras High Court Orders Compulsory Retirement

Case Title: Indira Gandhi Centre for Atomic Research v. D Ganeshlan and Another

Citation: 2022 Livelaw (Mad) 187

The Madras High Court bench of Justice S. Vaidyanathan and Justice Mohammed Shaffiq ordered compulsory retirement of an employee of Indira Gandhi Centre for Atomic Research who had gained employment by submitting a fake SC community certificate.

The court also directed that the employee shall be eligible for only 40% of the pension benefits and not eligible for any other terminal benefits, such as gratuity, DCRG and the like, excluding the PF contribution, if any made by the employee.

The court also observed that though the employee was appointed only under the Open Category and further promotions were based on the merit, the initial appointment itself was void ab initio when it was based on a fake certificate produced by the employee concealing certain facts.

11. Asian Paints To Furnish A Bank Guarantee For GST Department To Release The Detained Goods: Madras High Court

Case Title: Tvl.Asian Paints Limited Versus The Assistant Commissioner (ST)

Citation: 2022 LiveLaw (Mad) 188

The Madras High Court bench of Justice M. Dandapani has directed the GST department to release the detained goods on furnishing of the bank guarantee by Asian Paints.

The court permitted the petitioner to obtain and annex the bank guarantee within a period of one week along with the application/representation. If such a bank guarantee and application are made, the respondents are directed to release the detained goods to the petitioner within a period of one week.

12. Arbitral Award Not Hit By Adequacy Facet If Reasons Given Are Not Laconic: Madras High Court

Case Title: The Chief Engineer / Metropolitan Transport Project (Railways), Southern Railway and Anr. versus M/s. Progressive-Aliens

Citation: 2022 LiveLaw (Mad) 189

The Madras High Court has ruled that an arbitral award cannot be set aside on the ground of non-adequacy of reasons as long as the reasons given are not laconic.

The Single Bench of Justice M. Sundar ruled that being 'tersely eloquent' is not alien to judgment writing.

The Court noted that Section 31 (3) of the A&C Act mandates that an arbitral award shall state the reasons upon which it is based unless the parties have agreed that no reasons are to be given or when it is a compromise arbitral award pursuant to a settlement under Section 30 of the A&C Act.

13. "ProceduresIn Vigilance Manual Should Be Followed In A Constructive Manner": Madras High Court To DVAC

Case Title: S. David Leo v. The Principal Secretary to the Government and Others

Citation: 2022 LiveLaw (Mad) 190

The Madras High Court has directed the Vigilance and Anti-Corruption Department to necessarily follow the procedures as contemplated in the Vigilance Manual in a constructive manner and for effective prevention of the menace of corruption.

The procedures contemplated in the Vigilance Manual are unambiguous and the constructive way of its implementation is of paramount important. Thus, the seventh respondent (DVAC) has to consider the implementation of the Vigilance Manual in its real spirit," Justice S.M Subramaniam observed.

The remarks were made while taking into account allegations pertaining to corruption in transfer and posting of teachers.

14. Madras High Court Declares Mother Nature As A Living Being Having All Rights Duties and Liabilities Of A Living Person

Case Title: A. Periyakaruppan v. The Principle Secretary to Government and Another

Citation: 2022 LiveLaw (Mad) 191

The Madras High Court recently invoked the "parens patriae jurisdiction" and declared "Mother Nature" as a "Living Being" having a legal entity/ legal person / juristic person / juridical person / moral person / artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them.

The Madurai bench of Justice S. Srimathy also observed that nature shall have fundamental rights/ legal rights and constitutional rights for its survival, safety and sustenance, and resurgence in order to maintain its status and also to promote its health and wellbeing. The court also directed the State Government and the Central Government to take appropriate steps to protect the mother earth in all possible ways.

OTHER DEVELOPMENTS

1. Madras High Court Directs TASMAC To Implement Buy-Back Scheme To Clear Waste Bottles In Nilgiris

Case Title: Solaimalai Sivasolaimalai v. Chairman and others

Case No: W.P(MD) 7606 of 2017

The Madras High Court directed the TASMAC Managing Director to implement the buy-back proposal in the Nilgiris region. The bench of Justice V Bharatidasan and Justice N Sathish Kumar was considering a batch of pleas for protection of the Western Ghats area.

The court further stated that it plans to implement this proposal in all the hills stations of the state including Elagiri, Meghamala, Yercaud, Kodaikanal, Topslip, and the wildlife sanctuaries and national parks of the state of Tamil Nadu. The project will be implemented from June 15. The pilot project will be implemented in the Nilgiri area from May 15.

As per the buyback scheme, for every sale of bottles in the Nilgiri District, an extra amount of Rs. 10/- shall be collected from the consumer over and above the Maximum Retail Price. This extra amount of Rs. 10/- so collected shall be refunded to the consumer on the production of an empty liquor bottle.

2. Elephant Poaching In Western Ghats: MadrasHigh Court Constitutes Special Investigation Team

Case Title: S. Manoj Immanuel v. Union of India and Ors.

Case No: WP (MD) 19771 of 2018

The Madras High Court directed constitution of Special Investigation Team (SIT) comprising of Central Bureau of Investigation (CBI), state police and Forest Department officials to probe into cases relating to elephant poaching and other forest crime reported in the western ghats area.

The court further directed the SIT to commence investigation by May 15 and to submit a status report to the court by June 10. The SIT will probe 19 cases that mostly occurred between 2013 and 2018.

Justice V Bharatidasan and Justice N Sathish Kumar further gave liberty to the SIT to engage further police officers and forest officers, if needed, after obtaining necessary permission from the authorities and to conduct a detailed enquiry into the matter. The SIT was given power to investigate under the Code of Criminal Procedure and the Wildlife Protection Act 1972.

3. "Summons To Advocate Representing His Client Impinges Upon The Stature Of An Advocate": Madras High Court

Case Title: A. Sankar v. V. Kumar and others

Case No: Cont. Petition 818 of 2022

Justice N. Anand Venkatesh of the Madras High Court came down heavily on the police officials for having sent a summons to the Counsel representing a party under Section 91 and 160 of the CrPC.

The court stated that the order was made without application of mind and such issuance of summons impinges upon the stature of an Advocate. The court further observed that the act of the respondent in sending summons to the petitioner was also not proper as it has been time and again held that a Summon can be issued only in the course of investigation after an FIR is registered under Section 154 of Cr.P.C.