Mhc 2019 year important 45 judgements

Even a deity encroaching public property has to be dealt with, in accordance with law.

Single Bench of the Madras High Court, Justice SM Subramaniam, observed that a large number of temples on the public roads, government poramboke areas, water bodies and water resources are being constructed by land mafias and greedy men for their personal gains and for unlawful enrichment, to grab the land or for personal unlawful enrichment. The court said that such temples on roadsides are constructed without obtaining proper permission from the competent authorities and is causing inconvenience to vehicular traffic and passers-by.
The court also observed that the Hindu Religious and Charitable Endowments Department should not encourage such an attitude of the people in respect of construction of temples by encroaching the public lands and the public roads.
(Case : W.P.No. 27748 of 2005, order dated 04 January 2019)

Cross-Gender massages are not prohibited in spa.
Justice Anand Venkatesh of the Madras High Court observed that the police have no legal right to prevent a health spa being operated by anyone even if the therapy is done by persons of one sex to those belonging to the opposite sex. The court made this observation while quashing cases filed against spa therapists and owners of health spa in the state. Kadek Dwo Ani Rasmini, an Indonesian lady, professionally trained and qualified spa therapist, had approached the high court against the police action of keeping her in custody for nearly 26 days in the Vigilance Home. She alleged that the local police conducted a raid at her spa centre and took her away along with four other spa therapists and were placed under custody in Vigilance Home.
The court remarked, “Every foreign national who comes into this country, should be treated like an ambassador of the concerned country. They carry with them their opinions and impressions about our country. Therefore treating them with utmost respect, will enhance the image of this country around the world.”
(Case : Ms. Kadek Dwi Ani Rasmi v. Mr. K. Natarajan, W.P Nos. 29995 & 31320 of 2018, order dated 02 January 2019)
A non-lawyer can make submissions in the court with permission.
Justice N Anand Venkatesh, while upholding Magistrate’s order rejecting remand of Nakkeeran Gopal who was charged under section 124 of IPC for publishing fake/derogatory news about the Governor of Tamil Nadu in a bi-weekly Tamil magazine, observed that there was nothing wrong in calling upon senior journalist N Ram to get his opinion.
In his report to the high court, the Magistrate stated that he was under the bonafide impression that he is entitled to call for such opinion in view of provisions available under Section 32 of the Advocates Act, 1961 and Rule 69 of the Criminal Rules of practice. Taking into consideration the report, and also referring to Section 32 of the Advocates Act, the court observed that the court has the power to permit any person not enrolled as an advocate to put forth his submissions before a court whenever called for by the court.
(Case : State v. Tr. Nakeeran Gopal, Crl. OP No. 26888 of 2018 and Crl. MP No. 15519 of 2018, order dated 07 January 2019)

4. Madras HC rules in favour of pregnant police aspirant, says participation in running test a sign of courage.
Noting that taking a physical examination test during pregnancy is itself a “sign of courage”, the Madras High Court has ordered the Tamil Nadu Uniformed Recruitment Board (TNURB) to select a woman as a Constable despite her having failed the physical efficiency test. In doing so, Justice S. Vimala emphasized on the need for a change in mindset to eliminate consideration of pregnancy and childbirth as an impediment in the discharge of duty.
The court was hearing a petition filed by one R. Devika, who had failed the physical efficiency test for recruitment as a Grade II Police Constable. She had finished the 100 Mts running test in 18.20 seconds, 30 seconds more than the maximum time of 17.50 seconds provided. She demanded leniency, submitting that she was eight weeks pregnant at the time of the test. The Special Government Pleader, on the other hand, had challenged the petition, submitting that allowing such deviations from the norm would open flood gates for other disqualified candidates and would hamper the recruitment process.
The authorities were then directed to select Devika for employment as Grade II Police Constable / Grade – II Jail Warden, as on October 31, 2018, with all attendant benefits. If further intensive physical training is required, it shall be postponed till her maternity leave is over, it added.
(Case : R. Devika v. The Chairman (TNURB), WP No. 30538 of 2018 & WMP No. 35631 of 2018, order dated 07 January 2019)

5. Madras HC directs Registry uploads orders or judgements soon after judges sign them.
The Madras High Court directed its registry to upload judgements and orders soon after they are signed by the judges. Justice SM Subramaniam issued this direction to address the concern raised by lawyers who brought to his notice that the certified copies of the orders or judgements are supplied by the Registry to the parties.
The court added that the authorities concerned cannot reject or refuse the printed copy of the downloaded orders/judgments communicated by the respective counsels of parties.
The court also directed the Chief Secretary of all the Departments/Subordinate officials to ensure that the attested downloaded order/judgment copies received by them shall be responded properly and the officials concerned shall act based on the attested copies by verifying the same with the official website of the high court.
(Case : P. Gunasekara Senthil v. The Assistant Electricity Engineer, W.P. No. 5 of 2019 and W.M.P. No. 5 of 2019 order dated 08 January 2019)

6. Construct hospitals and schools in honour of great leaders instead of statues and memorials.
The Madras High Court endorsed the idea of construction of hospitals, schools, colleges and provision of basic amenities/facilities to benefit the public/citizens, in honour and memory of great leaders, instead of building memorials and statues using public money.
The bench comprising Justice M Sathyanarayana and Justice P.Rajamanickam observed thus while considering a petition against construction of memorial of former chief minister J.Jayalalitha at a cost of Rs.50.80 Crores on the burial place (Samadhi) at Marina Beach, Chennai by the Government of Tamil Nadu.
The judge said: “It is pertinent to note at this juncture that public money can be spent for construction of hospitals, schools, colleges, implementation of developmental projects and provision of basic facilities/amenities to the citizens, in honour and memory of great leaders and it would be an everlasting memory in the mind of the citizens/people. However, it is for the Government concerned to take a call and this Court cannot issue any positive direction to do so.”

7. Physical presence of the couple compulsory for marriage registration.
The Madras High Court has directed the Inspector General of Registration to issue a circular making the physical presence of the parties to the marriage mandatory for the registration of their marriage. The bench comprising Justice KK Sasidharan and Justice PD Audikesavalu observed that it shall be incumbent upon the parties applying for the registration of marriage to establish that the marriage between them has been performed in accordance with their personal laws or custom or usage or tradition.
The order was passed by the Madurai Bench in a petition filed by lawyer (A. Kannan) complaining that Registrars of marriages are registering marriages without verifying the solemnization of marriage in accordance with the personal laws of the parties. He also sought a direction to amend the Rules making the presence of the parties to the marriages compulsory.
(Case : A. Kannan v. The Principal Secretary to Government of Tamil Nadu, WP (MD) No. 1567 of 2016 and WMP (MD) No. 1328 of 2016 order dated 22 January 2019)

8. Negative marking system cripples student’s intuition, kills art of intelligent guessing.
The Madras High Court has observed that the system of negative marking system in competitive examinations requires reconsideration and has to be done away with.
Justice R. Mahadevan, while disposing of a petition filed by Nelson Prabhakar observed that the very system of awarding negative marks is improper and against the principles of fairness, equality and equity. The judge said that this system does not, in anyway, helps the examiner to analyse the intelligence, aptitude or knowledge of the students in any manner.
The writ petition filed by Nelson sought for a direction to CBSE to revalue his answer sheets of the Physics and Mathematics of JEE (Main) 2013. Even though the court had granted him an interim order permitting him to write the JEE Advance Level examination, he was not allowed to take part in the examination on the ground that no order was communicated.
(Case : S. Nelson Prabhakar v. CBSE represented by the Executive Director, WP No. 14596 of 2013 and MP Nos. 1 and 2 of 2013, order dated 01 February 2019)

9. Attending son’s engagement is a ground to grant parole.
The Madras High Court granted parole to a man to attend his son’s engagement ceremony rejecting the State’s objection attending engagement ceremony was not one of the enlisted grounds to give parole. Justice N Seshasayee ordered so while deciding the petition moved by a man seeking parole for his father who was undergoing one year imprisonment for an offence punishable under Section 7 and 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act.
The government, however, opposed his plea while contending that as per the Prison Manual Rule 6, Parole could be granted only on limited grounds and attending son’s engagement was not one of those grounds.
The court while directing the Superintendent Central Prisons to grant him parole said, “Life of law is not logic to experience and life itself is having full of emotions and sentiments. This Court seeks no reason why the father should attend an engagement ceremony of his son and this is an opportunity for him to visit the family in his life.”Sometime one needs to expand certain expressions in law to give the meaning to life of citizens. Hence, rather than administrating law in terms of letter, this Court is inclined to give Parole to the petitioner’s father,
(Case :R. Vivek v. The State, WP [MD] No. 2777 of 2019, order dated 07 February 2019)

10. Organizers of religious events shall undertake that there will be no denigration of any other religion.
Justice N. Seshasayee, Madurai bench of the Madras High Court while disposing a petition seeking permission and to provide police protection to conduct a religious convention in Kanyakumari directed the authorities to obtain a written undertaking from the organizers of meeting or congregation or convention of any religious group that they would ensure that no speech offending or denigrating any other religion or their faith or their mode of worship or other practices associated with it will be made.
The court disposed of the petition directing the authority to consider the request seeking permission, and if it decides to grant it, it shall obtain a written undertaking from the organisers that they will ensure that no speech offending or denigrating any other religion, its mode of worship, faith and other practices associated with it will be made.
(Case : J. Deva Asir v. The Superintendent of Police, WP (MD) No. 1552 of 2019 and WMP (MD) No. 1324 of 2019, order dated 07 February 2019)

11. Siddha medicines have to be popularized.
The Division Bench of the Madras High Court, Justices Kirubakaran and S S Sundar sought from the Central and Tamil Nadu Governments the details of fund allotment and utilization for the development of Siddha medicine. The Court was dealing with a Public Interest Litigation which brought to the notice of the Court that the Siddha Medical College at Palayamkottai, Tirunelveli District was not functioning properly.
The bench observed that “Siddha Medicines have to be popularized by the Governments in the appropriate manner”.
“Both the central and state governments are expected to allot more funds and provide more facilities to the Siddha doctors, especially to the students for doing research”, the bench further said. The court suo moto impleaded the Union Government and the Department of Ayush and sought details of fund utilization, degree holders in Siddha Medicine and their job opportunities, steps taken to identify herbal plants which are the basis of Siddha medicine, plans proposed for the development of the system etc.
(Case : Dr. M. Balamurugan v. The Director of Medical Education, WP (MD) No. 7977 of 2019, order dated 07 February 2019)

12. Freedom of expression always gets challenged when it touches upon religious beliefs.
Justice Anand Venkatesh observed that the article published by R. Kalyanaraman only reveals his understanding about the history of prophet. He has not straight away made any derogatory remarks against the Prophet Mohammed, and has only expressed the manner in which he had understood the history about the Prophet Mohammed and his family, the court said, after perusing the article.
The court observed, ” The freedom of expression always gets challenged when it touches upon religious beliefs. There were occasions when similar such articles have been written questioning the history of Jesus Christ in the book of the ‘Da Vinci Code’. Even in this state there are articles return touching upon the life of Sita in Ramayana. It is one thing to make reckless and derogatory remarks against religious beliefs and it is entirely another thing to express the opinion after reading the entire literature/history of various characters were revered as god or goddess in the society. Not every expression will qualify itself to bring disharmony between various sects or groups and this have been clearly brought out by this Court in the judgement in S. Tamil Selvan referred Supra. This court has category held that there is always a presumption in favour of free speech and expression unless it falls within the domain of reasonable restrictions under Article 19(2) of the Constitution of India.”
(Case : R. Kalyanaraman v. The State, Crl. OP No. 4407 of 2019, order dated 21 February 2019)

13. Madras HC stopped the practice of treating cases as ‘part heard’
Asserting the role of the Chief Justice as Master of Roster, the Division Bench the Madras High Court, Justice KK Sasidharan and Justice PD Audikesavalu has made it clear that it has barred the practice of “treating the matter as part heard”.
The bench was considering a writ appeal filed by Tamil Nadu Dr.Ambedkar Law University and Vice Chancellor contending that the Single Judge exceeded the brief and expanded the scope of a simple Writ Petition filed by a faculty member into a Public Interest Litigation. They had brought to the notice of the bench about the conversion of a simple Writ Petition filed challenging the proceedings, making a reference to the University Grants Commission to decide his eligibility to hold the post of Professor in Law, into a public interest litigation, without placing it before the roster Bench.
Setting aside the single bench order, the bench said: “If the learned Judge arrives at an opinion that there is an element of public interest involved in the matter, the proper course is to refer the matter to the Hon’ble Chief Justice for posting it before the appropriate Bench. The roster duly approved by the Hon’ble Chief Justice does not contain any indication that the Benches other than the roster Bench are authorized to entertain Writ Petitions involving public interest.”
(Case : TNLU v. The Director, Directorate of Legal Studies, WA No. 488 and 489 of 2019, Judgement dated 20 February 2019)

14. Prior environmental clearance necessary for NH land acquisition.
The notification issued under Section 3A of the National Highway Act 1956 for acquiring land for the ambitious Chennai-Salem 8 lane National Highway was quashed by a division bench of the Madras High Court.
The notifications were quashed on the main legal point that prior environmental clearance under the Environment Protection Act 1986 was necessary before acquiring land for the Rs.10,000 crores project for 270 kilometers highway. The Division Bench of Justices T S Sivagnanam and V Bhavani Subbaroyan rejected the argument advanced the Centre, Tamil Nadu Govt and National Highway Authority of India that environmental clearance was not needed at the time of “securing” the land for highway construction and that it was only needed at the time of actual laying of the road. The Court termed this argument as “putting the cart before the horse”.
The Court also noted that the proposed Green Field Highway with closed toll policy system is difficult to access for a common man.The NHAI stated that the road is an access control road to mean that the road is accessible only at designated spots which appears to be in four to six places between Chennai and Salem.
(Case : P.V. Krishnamoorthy v. The Government of India, WP No. 16630 of 2018, order dated 08 March 2019)

15. Salary received by missionaries/nuns subject to Tax Deduction at Source (TDS).
The Division Bench of the Madras High Court , Justices Dr. Vineet Kothari and C V Karthikeyan heard the appeals filed by the Income Tax Department against the judgment of a single bench, which had allowed the writ petitions filed by catholic religious institutions challenging steps taken for recovering TDS amount on salaries paid to priests/nuns employed in aided educational institutions. The court set aside the judgment of single bench, holding that the salaries were received by them in their individual capacity and that the subsequent surrender of their salaries to the religious institutions can only be treated as an application of income.
The court held that Income Tax Department is not bound by the tenets of Canon Law. The Court added that held that salaries received by missionaries and nuns of Catholic Church for teaching services are liable to be subjected to Tax Deduction at Source(TDS) under Section 192 of the Income Tax Act.
(Case : UoI v. The Society of Mary Immaculate, WA Nos.391/2019 etc., judgement dated 20 March 2019)

16. Get Aadhaar or else leave the job : Madras HC tells teacher who challenged biometric attendance system.
Justice SM Subramanian, Madras High Court, while rejecting a plea of a teacher challenging introduction of Aadhaar Enabled Biometric Attendance System in Government Schools, asked her to either get enrolled herself to Aadhaar or to leave the service.
R. Annal, a teacher in a Government High School, had challenged the implementation of Aadhar Enabled Biometric Attendance System for Teaching and Non-Teaching Staff employed in Government and Government Aided High Schools or Higher Secondary Schools across Tamil Nadu. She submitted that she has not enrolled under the Aadhaar as the same is not mandatory. She contended that the mandatory implementation of Aadhar Enabled Biometric Attendance System directly contravenes the Constitution bench judgment in Aadhaar case.
The court added that though the Right to Privacy is to be protected, but such a right cannot curtail the Government from introducing Aadhar Enabled Biometric Attendance System in Government Schools, which would provide a better administration as far as the Education Department is concerned. The court further said that the Aadhar Enabled Biometric Attendance System is systematically being implemented by the Government of India, High Courts and by other public institutions across the country.
(Case : Mrs. Annal v. The State of Tamil Nadu, WP No. 9314 of 2019 and WMP Nos. 9863 & 9866 of 2019, order dated 15 March 2019)

17. Transwoman a ‘bride’ under Hindu Marriage Act, the court also bans sex re-assignment surgeries on intersex children.
In a notable judgment, the Madurai Bench of the Madras High Court has directed the authorities to register a marriage solemnized between a man and a transwoman.
They approached the High Court after the registration authorities had refused to recognize and register their marriage solemnized in a temple. The authorities stated that a transwoman cannot be treated as ‘bride’ as per Section 5 of the Hindu Marriage Act 1956. Justice Swaminathan observed that “gender identity falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self determination of the second petitioner herein”.
The contention of the authorities that a transwoman will not come within the ambit of ‘bride’ as per definition of Hindu Marriage Act was rejected.
(Case : Arunkumar v. Sreeja, WP(MD) No. 4125 of 2019 and WMP(MD) No. 3220 of 2019, order dated 22 March 2019)

18. For court to take cognizance of offence u/s 188 IPC, Public Servant should lodge complaint in writing.
Madras High Court has held in Thirumoorthy & Ors v. State that for taking cognizance of the offences under Section 188 of the Indian Penal Code, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance. The question for consideration before the single judge bench of Justice G. K. Ilanthiraiyan was whether the registration of case under Sections 143, 188 IPC, registered by the respondent police is permissible under law or not?
The background of the case is that respondent police lodged a complaint that the members of Student Federation of India were unlawfully assembled in the place of AMMA Memorial and raised slogans against the Prime Minister Mr.Narendra Modi and the Chief Minister Mr.Edappadi Palanisamy for not revoking NEET Examination and also sought justice for the death of Anitha. Hence, they were arrested and FIR was registered against them for the offences under Section 143, 188, 353 of the Indian Penal Code.
Court quoting the extract of section language of Section 195 (1) (a) of Cr. P.C said that no Court can take cognizance of an offence under Section 188 of IPC unless the public servant has written order from the authority.
(Case : Thirumoorthy & Ors. v. The State, Crl. OP No. 1193 of 2019 and Crl MP Nos. 6196 and 6198 of 2019, order dated 30 April 2019)

19. Denying employment opportunity on the ground of deviation in visual standard is arbitrary & illegal.
Madurai Bench of the Madras High Court has laid down in M.E.Mohamed Musaf Raseen v. State of Tamil Nadu that denying the employment opportunity on the ground of deviation in the visual standard, citing a new rule, which is not at all referred to in the employment notification, is arbitrary and illegal.
The petitioner had challenged the order dated 14.03.2019 passed by the Additional Director General of Police, State Crime Records Bureau (fifth respondent in the case), whereby the name of the petitioner was deleted from the provisional list selected for the post of Sub-Inspector of Police (Finger Print) 2018, due to lack of eye vision.
Single judge bench of Madras High Court had earlier in similar circumstances with facts on similar lines held that “it is settled law that a physical defect or deformity, which in no way interferes with the normal or efficient functioning, should not be considered as an absolute bar to public employment in regard to the posts not associated with physical activity.”
Justice J. Nisha Banu, in this case, said that decision in that case applies squarely to the present case and decided the present case accordingly while allowing the petition.
(Case : M.E. Mohammed Musaf Raseen v. The State of Tamil Nadu, WP(MD) No. 11915 of 2019 and WMP(MD) Nos. 9011 and 9012 of 2019, order dated 15 May 2019)

20. Teachers are like Gods, they cannot question each and every decision taken by Govt. in public interest.
Madras High Court sides with the reasoning of single judge bench of Justice S. M. Subramaniam, which had dismissed writ petitions filed by Tamil Nadu Elementary School Teachers Federation challenging the order passed by the Director of Elementary Education deploying Secondary Grade Teachers in Elementary Education to the post of Nursery / Montessori Teachers in Anganwadi Centre.
Bench Justice N. Kirubakaran and Justice S .S. Sundar in S.Paul Prince v. State of Tamil Naduwhile deciding writ petitions concerning samefound nothing wrong with the introduction of pilot project of Montessori based education to kindergarten students while deploying Secondary Grade Teachers in Elementary Education to the post of Nursery / Montessori Teachers in Anganwadi Centres.
Quoting from the extracts of Supreme Court observation in Avinash Nagra Vs. Navodaya Vidyalaya Samiti and Others on the role of teachers, court observed that teachers are like Gods and they cannot question each and every decision taken by the Government in public interest, especially in the interest of children belonging to economically weaker sections.
The court dismissed the petition.
(Case : S. Paul Prince v. The Government of Tamil Nadu, WP(MD) No. 1091 of 2019, order dated 22 May 2019)

21. Conversations between a prisoner and spouse should be unmonitored.
In recognition of the conjugal rights of prisoners, the Madras High Court has held that the conversations between a prisoner and spouse should be unmonitored. The Madurai bench of the Madras High Court read down Rule 531(2) of the Tamil Nadu Prison Rules, which stated that every interview with a convicted prisoner should take place in the presence of an experienced prison officer. The Court said that this rule cannot be applied during meetings between spouses.
Unless it is so read down, the right to dignity inhering in the prisoner and his spouse would certainly be infringed”, said Justice G R Swaminathan in the judgment.
“When a prisoner meets his wife, he may like to hold her hands. His emotions are bound to be find a physical expression. While private prison cottages may be a distant prospect,the privacy and dignity of the prisoners should be scrupulously protected. Conversations between prisoner and his spouse should be unmonitored”, the judgment said.
The petition was disposed of permitting Shalin to spend time with his wife at hospital from 10 AM to 5 PM on May 29. The escort police was directed to respect the privacy of the prisoner and his wife.
(Case : Rahmath Nisha v. The Additional Director General of Prison, WP(MD) No. 12488 of 2019, order dated 28 May 2019)

22. State health scheme not charity and Govt. cannot reject reimbursement claims of employees.

The issue raised in the case before the court was the entitlement of the writ petitioners, who are either Government employees or pensioners of the State Government and its undertakings or their family members / legal heirs / next kith and kin, to get medical reimbursement under the New Health Insurance scheme implemented by the State Government from time to time.
Madras High Court ruled that medical reimbursement claimed by the employees and pensioners or their family members is not the bonus or bounty. It noted that since it has been made compulsory that every employee or pensioner of the State Government must join in the Health Insurance Scheme by paying a continuous contribution towards premium every month, the State Government cannot easily abdicate their duty and responsibility by merely rejecting the case of the medical reimbursement claim on technical grounds.
(Case : S. Marimuthu v. The Govt. of Tamil Nadu, WP(MD) No. 13429 of 2019, order dated 28 May 2019)
23. Presidential assent cannot save state laws which have already become repugnant.
The Madras High Court has held that three land acquisition laws enacted by Tamil Nadu legislature – Tamil Nadu Highways Act 2001, Tamil Nadu Acquisition of Land for Industrial Purposes Act 1997, and Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act 1978 – are repugnant to the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act 2013 (RFCTLARR Act) passed by the Parliament.
The bench of Justices S Manikumar and Subramonium Prasad has held that all acquisitions done under these three Acts to be illegal with effect from September 27, 2013,the date on which RFCTLARR received presidential assent, and quashed them in the matter The Caritas India v Union of India and connected cases.
The Court also held Section 105A inserted by the Tamil Nadu legislature in the RFCTLARR Act to be inoperative. This provision was inserted by a TN amendment brought in 2015 to state that the procedure under RFCTLARR Act will not apply to acquisitions made under the above said Tamil Nadu legislations.
(Case : The Caritas India v. Union of India, WP No. 22448 of 2018, order dated 3 June 2019)

24. Cellphone tower erection cannot be prevented on a mere apprehension about radiation.
The apprehension does not have a scientific backing. Till a positive finding is given in this regard, cell phone towers cannot be prevented to be installed on mere apprehensions, said Justice N. Anand Venkatesh while granting police protection to Reliance JioInfocomm to erect the tower in a property leased to it in Coimbatore.
The company had moved the High Court contending that the residents of the area came to the spot and started causing hindrance to the company officials from carrying out the construction work of the tower. Allowing their plea, the bench said that the High Court had consistently held that no one can be prevented from erecting cell phone towers on a mere apprehension about the effect of radiation from the cell phone tower.
In the said case, the high court had referred to the following observations made by the Madras High Court in K.R.Ramaswamy @ Traffic Ramaswamy, Vs. The Secretary,Department of Telecommunication: “There being no materials at least as on date, which can finally suggest any health hazards from these towers and the solution thereof, the Court would not venture into unchartered territory of technical expertise to determine the area where it should be installed. “
(Case : Reliance JioInfocomm Limited v. The Deputy Superintendent of Police, Crl.OP No. 14444 of 2019, order dated 07 June 2019)

25. Madras HC orders rescue of elephant used illegally for begging and marriage parades.
The Madras High Court has directed the Principal Chief Conservator of Forests and Chief Wildlife Warden to take possession of Malachi, a female elephant aged about 34 years, which was being used illegally for begging and marriage parades. A Bench of Justices S Manikumar and Subramonium Prasad observed that the Department of Forests may either keep the elephant in a camp or transport her to a zoo, in accordance with law.
The order was passed in a petition filed under Article 226 of the Constitution of India by an animal lover S. Muralidharan who complained of the ill-treatment of the elephant by one Indira, a Madurai-based lady. Though several representations were made to the authorities highlighting this, they have not cared to act, Muralidharan alleged.
The elephant was originally owned by Mrs. Masan, a resident of Andaman Islands, who had given it to Indira for gifting it to Madurai’s Meenakshi temple. However instead of gifting the elephant to temple, Indira started using her for begging and marriage functions.
“Even taking it for granted, that the elephant is adequately fed and taken care, the manner in which the elephant has been used, cannot be ignored. Disregard to the statutory rules, is apparent on the face of record”, said the Court.
(Case : S. Muralidharan v. Principal Chief Conservator of Forests & Chief Wildlife Warden, WP No. 11500 of 2018, order dated 12 June 2019)

26. Contempt action cannot be taken after the period of limitation under section 20 Contempt of Courts Act.
Justice SM Subramaniam, observed that the period of Limitation under section 20 of the Contempt of Courts Act 1970 should be harmoniously read with Article 215 of the Constitution of India. The limitation under section 20 has to be scrupulously followed in all cases and those provisions are to be read harmoniously with Article 215 of the Constitution of India.
The Court was hearing a contempt application against the Director of the Local Fund Audit in Kuralagam Chennai alleging his failure to comply with an order of the Court dated 02.09.2014, passed in an earlier writ petition. The writ petition was filed by the petitioner based on the order of a Finance Department of Madurai (West) Panchayat Union which stated that a bonus increment had to be sanctioned as an incentive in respect of employees who were in the special grade beyond 10 years. However since the petitioner had retired from service before the completion of such period, she had become ineligible for availing such bonus which had led to her filing such writ petition.
“The writ petitioner was found not eligible for the claim set out in her representation and further, her case was considered by the competent authorities and this apart the Contempt Application is filed, after the period of limitation, this Court has no hesitation in coming into the conclusion that the respondent had not committed any willful disobedience of the order of this Court.” Therefore the contempt application was dismissed.
(Case : P. Rajammal v. J.Kailainathan, Cont.P.(MD) No. 1009 of 2016, order dated 14 June 2019)

27. Asylum seekers not always illegal migrants. Madras HC upholds right of Sri Lankan refugees to seek Indian citizenship.
The Madras High Court, Madurai bench has passed a significant judgment recognizing the right of asylum seekers to apply for Indian citizenship. This was in a plea by 65 Indian-origin Tamil refugees, who had fled to India in 1983 from Sri Lanka after ethnic strife against Tamils intensified in the island nation. Since then they have been staying in a refugee camp in Trichy.
While directing the Centre to consider their applications for grant of Citizenship, regardless of their status as ‘illegal migrants’ as per strict application of Citizenship Act, Justice G R Swaminathan of the Madurai bench observed :
“The Government of India must take note of the fact that the petitioners came to India when faced with a grave threat to their lives and limbs. They had to seek asylum in India. A person who is running for his life cannot obviously be expected to wait for a visa. Therefore, viewing the petitioners’ case through the prism of the technical requirements of law, does not appear to be a humanitarian approach. An illegal migrant cannot claim such a relaxation if he had merged with society surreptitiously. That is not the case here. The writ petitioners have been housed in camps set up by the Government”
(Case : P. Ulaganathan v. The Government of India, WP(MD) No. 5253 of 2009, order dated 17 June 2019)

28. ‘Maintain the status as idols’, Madras HC to Film and Drama Artist Association.
The High Court of Madras has permitted the South Indian Film Artistes’ Association(SIFAA) to hold an election at Ebba’s Girls Higher Secondary School on Radhakrishnan Salai at Mylapore on 23.06.19.
Justice N Anand Venkatesh, who granted the permission said that he expects the members of the association to keep up the reputation and maintain their status as idols rather than involving themselves in violent acts or by creating unruly scenes. He said, if such instances take place then it will reflect very badly upon the association and people will change their opinions if they find that their idols are indulging in violence. He further informed the contestants to redress their grievances as per law and they shall not take law in their own hands.
The court also directed the Deputy Commissioner of Police, Mylapore, to provide adequate protection for the election.
(Case : South Indian Artistes’ Association v. The Commissioner of Police, WP No. 19649 of 2019, order dated 22 June 2019)

29. Persons appointed as daily wage employees on a temporary basis, cannot ask for regularization.
A Madras High Court Bench comprising of Justice S.M. Subramaniam held that persons appointed as daily wage employees on a temporary basis, cannot ask for regularization and permanent absorption.
The writ petition was filed under Article 226 of the Constitution for the issuance of a writ of mandamus directing the Secretary to the Government of Tamil Nadu, Local Administration Department and other respondents to forthwith regularise the services of the petitioners who had completed five or ten years of service and thereby extend all pecuniary and service-related benefits to them.
Referring to a number of cases the Court held that grant of regularization or permanent absorption cannot be granted in violation of the recruitment rules in force and that the writ petitioners cannot seek the benefits of regularisation and permanent absorption.
(Case : Vijayan v. The Secretary of the Government, WP (MD) No. 5121 of 2015 and MP (MD) Nos. 2&3 of 2014, order dated 9 July 2019)

30. Compassionate appointment cannot be claimed as a matter of right.
The Madras High Court has held that compassionate appointment scheme is a non-statutory scheme in the form of a concession and cannot be claimed as a matter of right on mere death of a government employee in harness.
In this case, the petitioner had told the court that his father was working as Gang Mazdoor in Srivilliputhur Municipality and died on 04.03.2004, while in service. At that point in time, petitioner’s mother was working as Sweeper in the Srivilliputhur Municipality and since the family was in indigent circumstances, he made an application for appointment on compassionate ground.
The court also considered the effect of compassionate appointment on rules of reservation in government service and said, “the State cannot be going on extending the scope of compassionate appointment so as to dilute the principles of reservation under the Constitution”.
(Case : G.Murugesan v. The Municipal Commissioner, WP (MD) No. 1491 of 2015, order dated 9 July 2019)

31. Right to education means, right to health & hygiene, drinking water, building and transport safety.
The writ petition arose in the form of a PIL filed by a practicing advocate seeking the issuance of a writ of mandamus directing the provision of CCTV cameras with GPS in all school buses so as to facilitate the option of monitoring the movement of the school bus through an official website by the parents.
The Madras High Court bench comprising of Justices S. Manikumar and Subramonium Prasad, observed that considering the safety of the children and moreso, the affiliation bye laws of CBSE that seeks the compliance of the CBSE schools with the measure stated above, the State Government has to consider issuing necessary guidelines in the matter of providing CCTV and GPS in education institution buses. Explaining the ambit of right to education the Court observed:
“In this context, we also observe that right to education means, right to health & hygiene, drinking water, fire safety, building safety and transport precautions in the school, as well. It also includes adequate facilities for providing recreation, physical education, conduct of various activities and programmes for the cultural and moral development of children.”
(Case : S.Gopi Krishnan vs The Director, WP No. 14287 of 2019 and WMP No. 14371 of 2019, order dated 11 July 2019)

32. A prisoner’s transit warrant can never be converted into a regular warrant in a case where the accused person is already on bail.
While hearing a matter placed before the Madras High Court, Justice Anand Venkatesh held that a Prisoner’s Transit Warrant can never be converted into a regular warrant where the accused is out on bail and that it thereby does not authorise the Court to remand the accused on the strength of a regular warrant.
The case arose in the form of a criminal original petition filed under Section 482 of the Code of Criminal Procedure to call for the records of a particular order of the First Additional Sessions Judge, Salem cancelling the bail of the petitioner and to set aside the same.
(Case : Palanivel v. The State, Crl. OP No. 14320 of 2019, order dated 11 July 2019)

33. Madras HC upholds ban on single use plastic in Tamil Nadu.
The Madras High Court has upheld the Tamil Nadu government order banning the use of throw away plastic which came into force on January 1 2019.
Dismissing a batch of PILs from Chennai Non-Wovens Private Limited and 29 others, a bench of Justices R Subbiah and Krishnan Ramasamy ordered the state government to stop supplying ‘Aavin’ brand milk in plastic packets and use bottles or find any other means.
“We, therefore, direct the government to implement the banning of all multi-layered plastic wrappers and covers, which are meant for one-time use and throwaway, to make the ban effective and meaningful,” it said.
(Case : Chennai Non Woven’s Pvt. Ltd. v. State of Tamil Nadu, WP No. 33453 of 2018, order dated 11 July 2019)

34. Prisoner has a right to seek transfer to a prison closer to his family, subject to security concerns.
The Madras High Court, Madurai bench has allowed a writ petition filed by a prisoner seeking transfer to a prison nearer to his home so that his aged mother could visit him occasionally.
The petitioner V Radhakrishnan was a death row convict, who was allowed clemency by commuting death penalty to imprisonment for the remainder of life. His 92 year old mother wanted the petitioner to be transferred to Madurai Central Prison as Madurai is situated closer to her residence. The petitioner sought transfer on humanitarian grounds enumerated under Rule 568 of the Tamil Nadu Prison Rules, 1983.
(Case : V. Radhakrishnan v. The State of Tamil Nadu, WP (MD) No. 15664 of 2019 and WMP (MD) No. 12339 of 2019, order dated 19 July 2019)

35. Police complaints authority not empowered to issue directions to register an FIR or to conduct further investigation.
The case of the Petitioner was that the Respondent Police did not comply with the Authority’s order to investigate the matter disclosed in the FIR filed by the Petitioner. It was contended that the powers and functions of the Authority under Puducherry G.O.Ms. No. 71 authorized the Authority to enquire into the petitions filed before it and give appropriate directions to the Police. The directions given by the Authority were binding in nature and the Respondent was thus duty bound to comply with them and investigate the matter.
The court held that the power to give a direction to register an FIR or to transfer investigation or to complete the investigation within a particular period or to alter the offence or to direct further investigation or to file a further report, were all powers of a competent Court under CrPC. A supervisory body, such as the Police Complaints Authority, which draws all its powers from the Supreme Court’s verdict and Government Orders, cannot be conferred with such wide powers. “If this goes unchecked, there is a possibility where there can be a clash between a direction given by the Court and a direction given by a Police Complainants Authority …This will lead to unnecessary compound.”
(Case : S. Ramesh v. The Chairman, WP No. 21587 of 2019, order dated 30 July 2019)

36. Madras HC quashes false case against husband by wife alleging sexual assault of daughter by husband.
Justice N. Anand Venkatesh, took a stern view against a Complainant who initiated malafide proceedings under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 against her husband.
The Complainant, C. Shakunthala, had filed a complaint under the aforementioned provision, accusing her husband, N. Chandramohan, of sexually assaulting the victim, their daughter. She also alleged that the ill-acts of the accused rendered the victim pregnant and she had to undergo abortion procedure.
The High Court granted anticipatory bail to the accused, observing that the complaint in question was frivolous.
(Case : Chandramohan v. The State, Crl. OP. No. 21414 of 2019, order dated 20 August 2019)

37. University bound to provide answer sheets under RTI.
The order was passed while disposing of a petition filed by the Tamil Nadu Dr. Ambedkar Law University (Petitioner), assailing the order of the Tamil Nadu State Information Commission, whereby the petitioner was directed to supply the copies of answer-sheets sought by the respondent-students, under the RTI Act. The Petitioner-University contended that it had not rejected the students’ claim but had only insisted them to follow the procedures prescribed under the Rules and Regulations of the University, as per which, certain charges had been prescribed.
Justice S. M. Subramaniam, of Madras High Court held that evaluated answer sheets are `information’ under the Right to Information Act, 2005 and Universities are bound to provide them to the Respondent-students.
(Case : The Tamil Nadu Dr. Ambedkar Law University v. The Tamil Nadu State Information Commission, WP No. 16108 of 2019 and WMP No. 15866 of 2019, order dated 14 October 2019)

38. Caste of a person cannot be changed by virtue of marriage.
The Madras High Court has reiterated that caste of a person is determined on the basis of birth and it cannot be changed by virtue of marriage. It said,
…deprivations, indignities and humiliates faced by the member of the Community is the real test and mere marriage or conversion can never be put against a person, who was actually born in the Scheduled Caste Community.
The order was passed by Justice N. Anand Venkatesh, while adjudicating upon a petition filed by one K. Shanthi, through Advocate R. Karunanidhi, seeking directions to the District Collector to pay her the relief amount as per the Rule 12 (4) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Rules, 2016.
(Case : K.Shanthi v. The District Collector, Crl. OP(MD) No. 9209 of 2017, order dated 27 September 2019)

39. Magistrate cannot mechanically order registration of FIR in matters having direct impact on free speech.
While quashing criminal proceedings instituted against ninety year old Tamil writer, K. Rajanarayanan, for allegedly insulting the Scheduled Castes community, Justice G.R. Swaminathanmcautioned Magistrates against mechanically ordering registration of FIRs in cases having “direct and clear implications on free speech”.
Remarking that taking offence had become a fashion, the court said that the magistrate, at the complaint stage, will have to see if the allegations made in the complaint are so absurd on the basis of which no prudent person can ever reach a just conclusion.
(Case : K.Rajanarayanan v. P.Kathiresan, Crl OP(MD) No. 5519, order dated 16 October 2019)

40. While permitting plaintiff to withdraw suit, court ‘shall’ give liberty to file afresh if conditions under Order 23 Rule 1(3) CPC are met.
The Madras High Court held that while permitting a plaintiff to withdraw the suit under Order XXIII Rule 1 sub-rule 3 of CPC, it shall be mandatorily for the court to give him the liberty to institute a fresh suit in respect of the subject matter of such suit.
once the Court satisfies either under clause (a) or (b) of sub-rule (3) [of Rule 1 of Order XXIII CPC], Court, while permitting the plaintiff to withdraw the suit, shall also give the liberty to institute a fresh suit in respect of the subject matter of such suit,” the court said.
The order was made by Justice R. Suresh Kumar while allowing a Tamil story writer-cum-Assistant Director, K. P. Selvah, to file a fresh suit for copyright infringement before an appropriate court against a feature film called “Thalapathy 6.3”, set to be released under the banner of M/s. AGS Entertainment Pvt., Ltd., directed by Atlee (both Respondents).
(Case : KP Selvah v. Atlee, CRP (NPD) No. 3331 of 2019, order dated 22 October 2019)

41. Drunken driving: ‘Central Government to consider a suitable amendment to adopt Zero Tolerance norm.
While assessing whether the 30ML outer limit of alcohol consumption as fixed under Section 185 of the Motor Vehicles Act, 1988 for a person driving the vehicle, is correct, the Madras High Court proposed that the central government should contemplate a zero tolerance regime for drunk driving.
…since Section 185 is placed in Chapter 13 of the Motor Vehicles Act, the Central Government is to consider a suitable amendment in this regard by allowing various State Governments / Union Territories to adopt a zero tolerance norm in Section 185 itself. The time has now come for just such a measure. Too many lives have already been lost to this lethal cocktail of internal consumption and internal combustion,” Justice R. Mahadevan said.
(Case : K. Shanmugam v. V.Krishnamurthy, Civil Misc. Appeal No. 1842 of 2006, judgement dated 25 October 2019)

42. Madras HC asks man booked for FB post against PM Modi to not use social media for 1 year to get bail.
The Madras High Court imposed a condition of staying away from social media for one year for granting anticipatory bail to a Tamil Nadu resident who was booked for an alleged derogatory Facebook post against Prime Minister Narendra Modi.
The police had registered an FIR against Kanyakumari resident Jabin Charles under Section 505 (ii) of the Indian Penal Code and Section 67B of the Information Technology Act for posts relating to the Prime Minister.
“The petitioner had posted a highly derogatory post pertaining to the Hon’ble Prime Minister of India in the face book”, observed the court. Justice G R Swaminathan of Madurai Bench allowed his anticipatory bail applications on the undertaking by the lawyer that he will not use social media for a year.
(Case : Jabin Charles v. The Inspector of Police, Crl OP(MD) No. 15967 of 2019, order dated 4 November 2019)

43. Plea to declare an acquittal judgment of the trial court as “Honourable Acquittal” not maintainable.
A Division Bench of the High Court of Madras comprising of Chief Justice Mr. A. P. Shahi and Justice Subramonium Prasad held that a revision or a petition under Section 482 of the Code of Criminal Procedure seeking declaration to declare that an acquittal judgment of the trial court as “Honourable Acquittal” is not maintainable.
The Judgment examines numerous cases and states that the aspect of “honourable acquittal” cannot be delved into by the Hon’ble Court under the umbrella of inherent powers rendered by Section 482 of the Code as these connotations were not defined in the Code. Therefore, such a remedy could not be availed to seek a declaration or an enhancement of the quality of the order of acquittal passed by a criminal Court.
(Case : C.Surendhar v. The Director General of Police, WA No.3877 of 2019, judgement dated 13 November 2019)

44. Unmarried couple staying in a hotel room is not a criminal offence.
The High Court of Madras has held that the occupation of hotel room by an unmarried couple is not a criminal offence.
“Apparently, there are no laws or regulations forbearing unmarried persons of opposite sex to occupy hotel rooms, as guests. While live-in-relationship of two adults is not deemed to be an offence, terming the occupation of hotel room by an unmarried couple, will not attract a criminal offence. While that being so, the extreme step of sealing the premises on the ground that an unmarried couple were occupying the premises, is totally illegal in the absence of any law prohibiting the same”, held Justice M S Ramesh while quashing the sealing of a hotel run by the petitioner.
The petitioner in this case was running a service apartment in Coimbatore, Tamil Nadu. On June 25 2019, a search was conducted in the premises of the apartment by a team from the office of the Tahsildar, Peelamedu police station. During the course of the search, certain liquor bottles were found inside one of the rooms occupied by the guests and in one room two adults, male and female, who were not married to each other were staying. The premises was sealed by the team without any written order and this prompted the petitioner to file the petition.
(Case : Mypreferred Transformation and Hospitality Pvt. Ltd. v. The District Collector, WP No. 31230 of 2019, order dated 26 November 2019)

45. Madras HC upholds constitutionality of proviso to section 167(1)(a) Companies Act.
Protecting the interests of the investors, a Division bench of the High Court of Madras, Chief Justice A.P. Sahi and Justice Subramonium Prasad has upheld the validity of the ‘proviso’ to Section 167(1)(a) of the Companies Act 2013 .
In the instant case, the petitioner had contended that the newly inserted proviso to section 167(1)(a) in the Companies Act, 2013 was arbitrary and violated the principles of natural justice as Directors of a defaulting company would have to vacate Directorship in other companies while retaining the same in the defaulting company.
(Case : G.Vasudevan v. Union of India, WP No. 32763 of 2019 and WMP No. 33188 of 2019, order dated 2 December 2019)

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