சனாதானம் என்னை கேட்காமல் judge jayachandren order கருத்து. அமைச்சர்கள் மீது எப்ஐஆர் போட சொன்னது எல்லாம் தவறுங்க சேகர் பாபு அப்பீல் மனு தாக்கல் மூத்த வக்கீல் ஜோதி வாதாடுகிறார் crl op மேல் அப்பீல் வருமா ஐகோர்ட்டில் legal point MEMORANDUM OF GROUNDS OF WRIT APPEAL UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH CLAUSE 15 OF THE LETTERS PATENT ACT ) IN THE HIGH COURT OF JUDICATURE AT MADRAS ( Appellate Side Jurisdiction ) W.A.No. of 2023 Against W.P.No. 30692 of 2023 (on the file of Hon’ble High Court, Madras) P.K. Sekar Babu,
( MEMORANDUM OF GROUNDS OF WRIT APPEAL
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
READ WITH CLAUSE 15 OF THE LETTERS PATENT ACT )
IN THE HIGH COURT OF JUDICATURE AT MADRAS
( Appellate Side Jurisdiction )
W.A.No. of 2023
Against
W.P.No. 30692 of 2023
(on the file of Hon’ble High Court, Madras)
P.K. Sekar Babu,
Son of P. Krishnasamy,
No.7, Chellappa Street,
Otteri,
Chennai – 600 012 .. Appellant/Petitioner
Versus
1. Magesh Karthikeyan (Male/33 years)
S/o. Shri.Karthikeyan
No.8, PillayarKoil Street,
Puliyambedu,
Thiruverkadu Post,
Chennai – 600 077 .. 1st Respondent/Petitioner
2. The Commissioner of Police
Police Commissionerate,
Avadi,
Chennai ..2nd Respondent/1st Respondent
3. The Inspector of Police,
M-2, Milk Colony Police Station,
Avadi Police District,
Chennai ..3rd Respondent/2nd Respondent MEMORANDUM OF WRIT APPEAL FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA READ WITH CLAUSE 15 OF
THE LETTERSPATENT ACT
I. The address for service on the Appellant is that of hisCounsel
M/s. K. CHANDRU, S. LAVANYA AND P. PUSHPALATHA having their Office at No.166, Paper Mills Road, Perambur, Chennai – 600 082.
II. The address for service on the Respondents is the same as stated above.
III. The Appellant most humbly presents this Writ Appeal as against the observations made in paragraph Nos. 7, 8 and 9 of the Order passed by the Hon’ble Mr.Justice Dr. G. Jayachandran of this Hon’ble Court in W.P. No.30692 of 2023 dated 31.10.2023.
IV. The Appellant is not a party to the said Writ Petition. Hence, he is seeking Leave of this Hon’ble Court to prefer this Writ Appeal for the following among other Grounds:-
GROUNDS
1. The above Appeal is preferred by thisAppellant with Leave of this Hon’ble Court since the Appellant is not a party to the Writ Petition in W.P. No. 30692 of 2023 filed by the
1st Respondent/Writ Petitioner herein.
2. This Writ Appeal is filed after obtaining the website copy of the Order dated 31.10.2023 and this appeal is preferred with Leave Petition so as to prefer this Writ Appeal in view of the observations made in para Nos. 7, 8 and 9 in the Order of the Court.
3. To state the need to file this Writ Appeal, it is submitted that this Appellant is a Cabinet Minister of the Government of Tamil Nadu and he is holding the Portfolio of Hindu Religious and Charitable Endowment Department shortly called HR& CE Department.
4. In view of his dedicated administrative and yeomen service to the cause of H.R.&C.E. Department, certain persons, who havegrabbed Temple lands and properties more specially persons belonging to Hindu Munnani and BJP Party got enraged on this Appellant.
5. This resultedone such person filing a Writ of Quo-Warranto in W.P. No. 29203 of 2023 against the Appellant which had its wide publicity andafter several hearings by yet another learned Judge of this Hon’ble Court orders thereon is reserved on 23.11.2023.
6. The details of the Writ Petition, my Counter filed in it are all enclosed in the typed set filed along with this Appeal.
7. Whereas during the pendency of the above, Writ Petition in W.P. No. 30692 of 2023, the 1st Respondent, who claims himself to be a Member of the Organising Committee of “ TAMIL KUDIGALKOOTAMAIPPU” a unknown self- claimed organisation the ostensible existence of the said organisation apart from questionable nature of it not revealed in the Writ Petitionhad filed the above Writ
Petition.
8. The nature of the said organisation such as whether it is a registered one under The Tamil Nadu Societies Registration Act or under any other Act are not revealed nor any document is filed to substantiate the authenticity of the said self-claimed organisation, who are its Members, List of them whether it has got bye-laws if any, are all not at all revealed. Yet, very surprisingly and strangely the Writ Petition was filed.
9. According to the Petitioner the said Organisation conceived an idea to organise a Conference to express their views on certain subjects which included ‘Dravidian Ideologies’.
[
10. As per the Petitioner the venue was fixed at Rani Thirumana Mandapam, Poonamallee on 27.08.2023. In
furtherance of the same, it is claimedthat the organizer of the conference sought permission from the Inspector of Police (L&O), T-12, Poonamallee Police Station, Avadi Police District to hold such a Meeting vide its representation dated
08.08.2023.
11. Since the 3rd Respondent, namely The Inspector of Police, M-2, Milk Colony Police Station, Avadi Police District evaluated the said request and seems to have refused to grant permission.
12. Hence, the above Writ Petition in W.P. No. 30692 of 2023 was filed by the Writ Petitioner with the following prayer:-
Prayer made in W.P. No. 30692 of 2023
“ In these circumstances, it is most humbly prayed that this Hon’ble Court may kindly be pleased to issue a Writ of Mandamus directing the Respondents herein to give permission to the Petitioner in light of the Orders of this Hon’ble Court in W.P. No. 25907 of 2023 vide Order dated 05.09.2023, to organize a conference to debate on Dravidian ideologies and other social issues on 29.10.2023 between 10 a.m. to 6 p.m. at the close auditorium in Madhavaram Milk Colony by considering the Petitioner’s representation dated 26.09.2023 and thus render justice”.
13. The said Writ Petition was filed by verifying the Affidavit by one Magesh Karthikeyan on 11.09.2023 wherein an Order came to be passed by the Learned Single Judge of this Hon’ble Court on 31.10.2023.
14. While dismissing the Writ Petition in W.P. No. 30692 of 2023 on 31.10.2023, the Learned Single Judge for reason or rhyme quite unnecessarily and without any justification made certain observations which are certainly not required for the disposal of the said Writ Petition filed by the Petitioner.
15. Those Objections are now used in the Writ Petition filed for issuance of Quo-Warranto. Hence this Writ Appeal is filed as against those unnecessary Writ petitions.
16. The same can be seen in Paragraph Nos. 7 to 9 of the Order as extracted hereunder :-
Paragraphs 7, 8 and 9 of the Order dated 31.10.2023
7. No one can expect Courts to aid them to propagate ideas to create ill-will among the public. Some Members of the Ruling Party and Ministers participated in the meeting held for eradicating “Sanatana Dharma” and no action has been taken by the Police against them which is dereliction of duty on the part of the Police. Since police failed to act against those who had uttered inflammatory
speech to eradicate “Sanatana Dharma”. Now, permission to counter it by conducting meeting to eradicate “Dravidian Ideology”. If the request of the Petitioner is acceded, it will cause further disturbance to the peace and tranquillity of the public, who are already fed up by the way some of the fringe groups in support of persons who have taken Oath of Office to preserve the
Spirit of Constitution, act in breach of their Oath. This Court cannot perpetrate by permitting the Petitioner to hold conference to eradicate Dravidian Ideology.
8. As far as the present petition is concerned, this
Court finds that the earlier Order passed in the Writ
Petition filed by Senthil Mallar to express views about Dravidian Ideology. Whereas the present representation dated 26.09.2023, taking umbrage in the earlier Order seek to counter the meeting held under the banner
“Sanatana Ozhippu Maanaadu” (Sanatana Eradication Conclave). The Petitioner herein claims that, it is the fundamental right to conduct such meeting. This Court cannot subscribe to this view. No person in this Country can have a right to propagate divisive ideas and conduct meeting to abolish or eradicate any Ideology. Co-existence of multiple and different ideologies is the identity of this Country.
[
9. This Court is of the view that, person in power should realise the danger of speech unflaring fissiparous
tendency and behave responsibly and restrain themselves from propagating views which will divide people in the name of Ideology, Caste and Religion. Instead they may concentrate on eradicating intoxicating drinks and drugs which are injuries to health, corruption untouchability and other social evil.”
17. The above observations are used during the pendency of the said Writ Petition seeking “Quo-Warranto” as against this Appellant by yet another person in W.P. No. 29203 of 2023. Such observations are not only unavoidable one, but also not warranted or sustainable in law.
18. This Appellant is advised to state that how and in what manner a Court especially at High Court level such observations or opinions could be expressed are guided by several scores of the Judgements of the Hon’ble Supreme Court and as well by our Hon’ble High Court Judgements.
19. This Memorandum of Grounds of the Writ Appeal is confined to the core issueand on the details of those Judgements since they are intended to be presented at the time of the hearing of the above Writ Appeal.
20. Time and again the Hon’ble Supreme Court and our Hon’ble High Court cautioned on the issue that such comments on persons who are not partiesbefore the Court or parties to the proceedings needs to be avoided.
21. The Orders in a case are required to confine only to the facts of the case and not to be inundated with such observations.
They are to be avoided especially when the affected party is not before the Court.
22. In fact, the observations expressed by the Learned Judge is now misused by Political opponents and are placed before the very Judge who is hearing the Writ Petition in W.P. No. 29203 of 2023(Quo-Warranto) wherein the Orders are
reserved.
23. The Fundamental Rights of the Appellant to be heard before expressing any observation or remarks by the Court is based on the principle of “Right to Reputation” and “Right to
Freedom of Speech” apart from “Audi Alteram Partem” namely Natural Justice.
24. The reputation of the Appellant is safeguarded by Article 21 of The Constitution of India.
25. This Appellant submits that theRight to Reputation and
Honour are the Fundamental Right to life of a citizen under Article 21 of the Constitution of India.
26. In case any authority traverses into the realm of personal reputation of anyone adversely affecting him, it must provide a chance to him to have his say in the matter.
27. In such circumstances rights of an individual is safeguarded by the principle of “Natural Justice”.
28. The knowledge about the said Order made in W.P. No. 30692 of 2023 dated 31.10.2023 surfaced and placed against this Appellant while concluding the arguments in the Writ Petition in W.P. No. 29203 of 2023 (quo-warranto) filed as against this Appellant.
29. In fact, the Order dated 31.10.2023 made in W.P. No. 30692 of 2023 has been relied upon in the Reply made by the said
Writ Petition on 23.11.2023 by submitting a copy of the Order in Open Court.
30. The reading of the said Order made this Appellant to file this Writ Appeal since neither the name of this Appellant is mentioned nor this Appellant is a party to the concerned Writ Petition.
31. The same wasrelied on by the other side as against this Appellant. Hence the necessity now arose to this Appellant to file this Writ Appeal so as to expunge the remarks made in the Order.
32. It is further ascertained from the High Court Website and with the downloaded copy of the Order this Writ Appeal is preferred.
33. This Appellant further submits that if necessary third party Copy Applicationcan be made in terms of Order XII Rule 3 of
Appellate Side Rules for the grant of Certified Copies of the Order.
34. Hence, this Writ Appeal is preferred based on the website copy of the Order made in W.P. No. 30692 of 2023 dated 31.10.2023 as revealed on 23-11-2023 while concluding the arguments in Quo-Warranto Writ Petition.
35. The Writ Appeal is maintainable since the very Writ Petition of the 1st Respondent is not based on any penal provision or on any semblance of any criminal side matter. Whereas the Writ Petition was filed by the 1st Respondent as against the executive, administrative order of the 3rd Respondent seeking permission to hold a meeting as stated in his Affidavit.
36. The Appellant is advised to state while exploring the
possibility of filing this Writ Appeal, it is so informed that a Writ Appeal as against the Order passed in a Writ Petition filed on Criminal Side is not an Appealable one.
37. The said view is not applicable to the facts of this present Appeal for the reason that the Writ Petition is filed by the
1st Respondent by not invoking any Provisions of the Code of Criminal Procedure or on any Penal Law. The entire Writ Petition rests only on the basis of the impugned Order concerned in W.P. No. 30692 of 2023.
38. The impugned Order passed by the Inspector of Police, M-2 Milk Colony Police Station, Avadi Police District, Chennai, the 3rd Respondent herein is not based on any penal law.
39. The English translated form of the Order dt.27.08.2023 of the 3rd Respondent is extracted hereunder along with Tamil
Version of the Order.
English Translated version of the above Order dated 27.08.2023 of the 3rd Respondent
“ Date: 27.08.2023
From
Inspector of Police,
Law & Order,
T12, Poonamallee Police Station,
Avadi Police District
To
Thiru K. MageshNaicker,
Spokesperson,
TamizharKudigalKootamaippu,
No.8, PillaiyarKoil Street,
Puliyambedu,
Chennai – 600 077
*************
On 25.08.2023 you have sought permission to organize a meeting to debate on the Eradication of Dravidian Ideology on 27.08.2023 at 10.00 a.m. at Rani Kalyana Mandapam situated in Vaithi Thottam within the jurisdiction of T12 Poonamalee Police Station. At this juncture, one Avadi
Nagarajan, Thanthai Periyar DravidarKazhagam, Thiruvallur District informed that there may be chances for Law and Order problem, if permission is granted to conduct the Conference on the intended debate on Dravidian Ideology. Further, if meeting is so held at the place against the Dravidians would create problems among the Dravidians apprehending Law and Order problems in the meeting venue. In view of the above, it is hereby informed that permission to organize such a meeting is denied.
Sd/- xx xxxx 27/08/2023
Inspector of Police
T12, Poonamallee Police Station ”
Tramil version filed in Writ Petition reads as hereunder :-
“ehs; :
27.08.2023 mDg;Gdh;>
fhty; Ma;thsh;> rl;lk; xOq;F>
T-12, G+tpUe;jty;yp fhty; epiyak;> Mtb fhty; khtl;lk;.
ngWeh;.
jpU. fh.kNf\; ehafh;> nra;jpnjhlh;ghsh;> jkpoh; Fbfs; $l;likg;G> vz;.8>gps;isahh; Nfhapy; njU>
Gspa;ak;NgL> nrd;id-600 077
fle;j 25.08.2023k; Njjp jhq;fs; T12 G+e;jky;ypfhty; epiya vy;iyf;Fl;gl;l itj;jp Njhlj;jpy; cs;s uhzp fy;ahz kz;lgj;jpy; jkpoh; Fbfs; $l;likg;G rhh;gpy; jpuhtpl
xopg;GkhehL 27.08.2023 k; Njjp 10 kzpastpy; cs;muq;fpy; elj;j mDkjpNfhhp ,Ue;jPh;fs;. ,e;epiyapy; Mtb ehfuhrd; je;ij nghpahh; jpuhtplh; fofk; jpUts;@h; khtl;l nrayhsh; vd;gth; jpuhtplj;ij mopf;Fk; Nehf;fj;Jld; nray;gLk; ,f;$l;lj;jpd; %yk; rl;lk; xOq;F rPh;NfL Vw;gl tha;g;G cs;sjhf njhptpj;Js;shh;. NkYk; jpuhtplj;jpw;F vjpuhf cs;suq;fpy; $l;lk; elj;jpdhy; jpuhtpl kf;fspilNa vjph;g;ig Vw;gLj;jp rl;lk; xOq;Fgpur;rpid ,e;j muq;fpy; Vw;gl tha;g;Gs;sjhy; jq;fsJ $l;lj;jpw;F mDkjp kWf;fg;gl;ltptuk; ,jd; %yk; njhptpj;Jf; nfhs;sg;gLfpwJ.
Sd/- xx xx 27/08/2023 fhty; Ma;thsh;
T-12, G+e;jky;ypfhty; epiyak; G+e;jky;yp> nrd;id-600 056 “
40. The reading of the entire Order can illustrate that it is not passed on under or exercising any Criminal or Penal Law or under any provisions of the Code of Criminal Procedure .
41. In fact the said Order is passed by the 3rd Respondent in his Official capacity as The Inspector of Police (Law & Order).
42. Furtherthere is no provision of either the Code of Criminal Procedure or for that matter any provision or any Crime
Law is quoted or referred in the impugned Order. The said
Writ Petition is not rested on the pedestal of exercise of any Criminal Law.
43. In fact this Appellant is wondering how the same was treated as a Writ Petition on Criminal Side. Perhaps the presence of the Respondents 2 and 3 might have made the
Office of this Hon’ble Court deemed it as Criminal Proceedings. The said view if any entertained is incorrect.
44. In fact the said Writ Petition ought to have been posted under the Regular Side of Writ Jurisdiction.
45. None of the provisions of any Penal or any provisions of the Code of Criminal Procedure is pointed out either in the impugned Order based on which the Writ Petition is filed or in the entire Affidavit of the 1st Respondent filed in support of the Writ Petition.
46. Except the nomenclature and the Office listing the same on Criminal Side, there is no issue of any Criminal
Jurisdiction is involved in the entire matter.
[
47. Denial of permission to hold a meeting in a Kalyana Mandapam is not a matter at all to be treated as Criminal Side matter.
48. The nomenclature of a case is immaterial to characterize the nature of the case. Further, the impugned Proceedings of the 3rd Respondent against which the Writ Petition is filed does not arise under any Criminal Law.
49. Hence, this Writ Appeal is maintainable and not hit by any law including Clause 15 of Letters Patent Act.
50. The cause and subject matter is important than the
nomenclature attributed to any petition or proceedings.
51. The Forum as chosen by the Writ Petitioner will not vest jurisdiction of the Hon’ble High Court. The subject matter alone can vest exercise of jurisdiction. The 1st Respondent has no choice to decide the Jurisdiction.
52. The Appellant further submits that the Writ Petition is certainly one of those cases where there is an abuse of the process of the law.
53. Article 226 of the Constitution of India permitting to file Writ Petition of various nature are devised to advance
justice and not to frustrate it.
54. This Hon’ble Division Bench may kindly consider this Writ
Appeal as the one to cure the miscarriage of justice.
55. Thus, it is to be seen that the subject matter alone is important than the adoration or naming or choosing of the jurisdiction that too at the will of the Writ Petitioner.
56. The Legal Maxim of “ACTUS CURIAE NEMINEM GRAVABIT” namely – An act of the Court shall prejudice no man is involved in this subject Appeal.
57. With the advent of the Indian Constitution and the empowerment given to the High Court to render Justice is by virtue of Chapter-V of Constitution of India ascontained in the said Provisions of the said Chapter.
58. The Prerogative Rights of this Hon’ble Court to issue Writ is governed by Article 226 of the Constitution of India with unfettered power.
59. Further, under Articles 225 and 226 of the Constitution of India, theexercise of jurisdiction of this Hon’ble Court is provided apart from empowering the High Court to issue certain Writs traceable to ‘Fundamental Rights’.
60. Any law contrary to the Fundamental Rights is invalid within the meaning of Article 13 of the Constitution of India.
61. Further by virtue of Articles 375 and 376 of the Constitution of India, this Hon’ble High Court derives further power subject to the Provisions of the Constitution and not from the Victoria Era Enactment namely Clause 15 of Letters Patent Act.
62. It is deemed that with the advent of Repeal of Government of India Act, 1935 as enshrined in Article 395 of the Constitution of India and by virtue of various provisions of the Indian Constitution as dealt earlier in this
Memorandum of Grounds of Writ Appeal the effect of
Clause 15 is deemed to be repealed on the Principle of “implied Repeal”. Further, the subject issue is not a matter of Criminal Jurisdiction at all.
63. There can be no fetters to the exercise of jurisdiction on the subject matter of this Writ Appeal. Hence this Writ Appeal is preferred.
64. The Petition for the grant of Leave to file this Writ Appeal is separately filed apart from a Petition to dispense with the production of the certified copy of the Order since the Appellant is not a party.
65. The Appellant may kindly be permitted to raise Additional
Grounds at the time of the hearing of the above Appeal.
66. Under these circumstances, it is most humbly prayed that this Hon’ble Court may kindly be pleased to Expunge the remarks made in Paragraph Nos. 7, 8 and 9 with respect to the Order dated j made in W.P. No. 30692 of
2023 on the file of this Hon’ble Court by allowing this Writ
Appeal and thus render justice.
Dated at Chennai on this the 7th day of December, 2023
Appellant Counsel for Appellant VERIFICATION
I, P.K. SekarBabu, Son of P. Krishnasamy, residing at No.7, Chellappa Street, Otteri, Chennai – 600 012 do hereby verify that the details submitted in the above Memorandum of Grounds of Writ Appeal are true to my knowledge and is so accordingly dictated and framed for the benefit of me and after knowing and understanding the contents of the Memorandum of Grounds of Writ Appeal, I hereby append my signature and I bear the full responsibility of the same.
Verified at Chennai on this the 7th day of December 2023.
Appellant
MEMO OF VALUATION
1. Value of Writ Petition .. Incapable Court Fee paid .. Rs. 750/-
2. Value of the Writ Appeal .. Incapable
Court Fee paid .. Rs.1,500/
Dated at Chennai on this the 7th day of December, 2023
Counsel for Appellant
