Madras High Court Weekly Roundup: April 4 to April 10, 2022
Upasana Sajeev
10 April 2022 1:54 PM GMT
A weekly round-up of important cases from Madras High Court and its subordinate courts. Citations: 2022 LiveLaw (Mad) 135 To 2022 LiveLaw (Mad) 146 NOMINAL INDEX M. Ramasamy v. State represented by its chief secretary and anr, 2022 LiveLaw (Mad) 135 G.Thirumurugan @ Theeran Thirumurugan v. Union of India and ors, 2022 LiveLaw (Mad) 136 V. Vasanthakumar v. The Union of...
A weekly round-up of important cases from Madras High Court and its subordinate courts.
Citations: 2022 LiveLaw (Mad) 135 To 2022 LiveLaw (Mad) 146
NOMINAL INDEX
M. Ramasamy v. State represented by its chief secretary and anr, 2022 LiveLaw (Mad) 135
G.Thirumurugan @ Theeran Thirumurugan v. Union of India and ors, 2022 LiveLaw (Mad) 136
V. Vasanthakumar v. The Union of India, 2022 LiveLaw (Mad) 137
Kamala v. Murugesan and Anr, 2022 LiveLaw (Mad) 138
Major Frank Ralston Samuel Raj v Kezia Padmini Swarna Pandian, 2022 LiveLaw (Mad) 139
S.P Chockalingam v. Principal Chief Conservator of Forests and Chief Wildlife Warden and Ors, 2022 LiveLaw (Mad) 140
K. Vasudevan v. The Principal Secretary to Government and Ors, 2022 LiveLaw (Mad) 141
Ms Preethika C (Minor) v. State of Tamil Nadu and Ors, 2022 LiveLaw (Mad) 142
S. Sampoornam v. C.K Shanmugam, 2022 Livelaw (Mad) 143
R. Selvaraj(died) and ors v Amutha and ors, 2022 LiveLaw (Mad) 144
Popular Front of India v. Haj Committee of India and Ors, 2022 LiveLaw (Mad) 145
B Amudha v K Rajendran(Died) and Ors, 2022 LiveLaw (Mad) 146
Case Title: M. Ramasamy v. State represented by its chief secretary and anr
Citation: 2022 LiveLaw (Mad) 135
The Madras High Court has issued a series of directions for proper treatment of law officers, who play a pivotal role in defending both the case of the Government as well as the interest of the general public. The directions issued involve treating of law officers with due respect, disbursal of fees and special fee claimed by the Advocate General and Additional Advocate General for appearing in cases, revision of fee regularly, promptness in getting legal opinions on time, etc.
Justice M. Govindaraj observed that Law Officers of the State are cast with the onerous responsibilities to strike a balance between individual and the interest of other fellow citizens and also the interest of the State, its policies, welfare schemes etc.
The development comes in a writ petition filed by former AAG S. Ramasamy against denial of special fees claimed by him.
Case Title: G.Thirumurugan @ Theeran Thirumurugan v. Union of India and ors
Citation: 2022 LiveLaw (Mad) 136
Madras High Court directed the Government of India to continue their efforts and to invoke any existing agreements for ensuring the the release of 68 fisherman laid up in the Srilankan jail.
The bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy were hearing petitions filed for the release of Tamil Nadu fishermen, who were taken into custody with their boats by the Sri Lankan Navy and Coast Guard.
The court stated that it did not have any territorial jurisdiction over the matters of the foreign government and could only ask the government to continue their efforts. Thus it was directed to send copies of the order to the government so that necessary action may be taken.
Case Title: V. Vasanthakumar v. The Union of India
Citation: 2022 LiveLaw (Mad) 137
The Madras High Court has declared Section 32(2) of the Prohibition of Benami Property Transactions Act, 1988 as unconstitutional.
The writ petition was filed by Mr V Vasanthakumar, appearing in person challenging the validity of Section 9 and Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transaction (Prohibition) Amendment Act, 2016.
Section 32 of the Act deals with Qualifications for appointment of Chairperson and Members of appellate tribunal and subclause (2) states that in case of a Judicial Member, the person should have been a Member of the Indian Legal Service and has held the post of Additional Secretary or equivalent post in that Service
The court highlighted the importance of the concept of Separation of Powers and stated that the concept of independence of judiciary is a vital issue and for that emphasis is made that there should be separation of power. Prior to the constitution of the Tribunal, the adjudication was done by courts. Therefore, with the constitution of tribunal, they would be discharging the work earlier discharged by the courts.
Case Name: Kamala v. Murugesan and Anr
Citation: 2022 LiveLaw (Mad) 138
The Madras High Court has held that publication to serve notice in the second appeal cannot be ordinarily issued by the appellate Court.
This is because parties to the suit participated in the trial proceedings and they have contested the appeal suit before the First Appellate court, while so, notice must be served to all the parties for the purpose of deciding the second appeal.
Justice S.M Subramaniam made the above orders in a petition filed to permit the petitioner to bring on record the proposed appellants as the legal heirs of the deceased second appellant. Seeing that the notice was not served yet and submission of the petitioner seeking paper publication, the court discussed in detail the state of affairs due to non production of proper addresses in the plaint.
The court directed the registry to ensure that all the necessary details are clearly mentioned in the plaint and interlocutory applications filed by the plaintiff(s) and the defendant(s) and to ensure that mobile numbers/phone numbers/ email addresses are mentioned and a copy of the self attested Aadhar card is enclosed.
Case Title: Major Frank Ralston Samuel Raj v Kezia Padmini Swarna Pandian
Citation: 2022 Live Law (Mad) 139
The Madras High reiterated that marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground that the other party as after the solemnization of the marriage has not cooperated to consummate the marriage.
Justice K Kalyanasundaram and Justice V Sivagnanam were hearing an appeal filed by an army officer, Major Frank Ralston Samuel Raj. Observing that the marriage was beyond broken, the court stated that Continuance of the relationship for namesake is prolonging the agony and affliction would be a cruelty to both the parties.
The court drew attention to Section 10 of Indian Divorce Act 1869, marriage can be dissolved by decree of divorce on a petition presented either by the husband or the wife on the ground that the other party as after the solemnization of the marriage not co-operated to consummate the marriage and the marriage has not therefore been consummate is entitled for divorce.
The court also relied on judgements were it was held that a spouse willfully avoiding another spouse to have sexual intercourse without sufficient reason, amounts to mental cruelty to such spouse.
6. Night Travel Ban In Sathyamangalam Tiger Reserve; Madras High Court Issues Directions For Movement
Case Title: S.P Chockalingam v. Principal Chief Conservator of Forests and Chief Wildlife Warden and Ors
Citation: 2022 LiveLaw (Mad) 140
While considering a series of petitions concerning movement of vehicles through the Sathyamangalam Tiger Reserve and the Government Notification prohibiting movement of all vehicles between 6 pm to 6 am, the bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy highlighted the fundamental duty for protection of animals. The court also considered in detail the particular nature of the area and the need for protection of the Reserve.
The court ordered a complete ban on the movement of vehicles having more than 12 wheels and weighing more that 16.8 tonnes at any time through these roads. Vehicles having below 10 wheels and weighing less that 16.8 tonnes have been permitted between 6 am to 6 pm. The transport buses, both public and private are free to ply between 6 am and 9 pm.
The court, while highlighting the freedom of movement under Article 19, also stated that in the present case the restrictions are imposed taking into account that the highway is passing through the core protected zone of the Tiger Reserve, as a thoroughfare through the eco-sensitive zone, Sanctuary and Reserve Forest.
The court also highlighted the Fundamental Duty of compassion towards animals recognition of freedom of animals as held in the judgement of Apex Court in Animal Welfare Board of India v. A Nagaraja, where the court had extended the Right to Life guaranteed under Article 21 of the Constitution to animals also.
7. Teachers Who Have Not Qualified TET Cannot Continue Service In Schools: Madras High Court
Case Title: K. Vasudevan v. The Principal Secretary to Government and Ors.
Citation: 2022 LiveLaw (Mad) 141
The court ruled that it is mandatory for the teachers, who did not possess the minimum qualification of pass in TET prior to RTE Act, 2009 to acquire the same within the period of nine years i.e., within 31.03.2019. Teachers who do not possess this minimum qualification are not entitled to continue their service or seek increment.
The bench of Justice D Krishnakumar were hearing petitions filed by a teacher to sanction annual increment to them in the B.T. Assistant posts as well as incentive increment for having acquired Post Graduation, without reference to passing of Teachers Eligibility Test (TET) with all consequential and other attendant benefits.
The court held that the purpose of TET is to assess the teachers on whether they have the adequate teaching competency and a positive attitude towards teaching. It is made compulsory to bring national standards and benchmark for quality in the recruitment process and to lay special emphasis on teachers' quality.
Case Title: Ms Preethika C (Minor) v. State of Tamil Nadu and Ors
Citation: 2022 LiveLaw (Mad) 142
The Madras High Court has upheld the validity of The Tamil Nadu Admission to Undergraduate Courses in Medicine, Dentistry, Indian Medicine and Homeopathy on preferential basis to students of Government Schools Act, 2020, which provided for 7.5% preference/reservation to the students of government schools in admission to undergraduate medical/dental courses.
The bench of Chief Justice Munishwar Nath Bhandari and Justice Bharatha Chakaravarthy opined that the horizontal reservation was not against Article 14 and that the act does satisfy the doctrine of proportionality, the court examined that findings of the committee and observed the stark difference in the social background of students coming from government schools and those coming from CBSE and ICSE schools.
The court also held that the students of the State Government Schools are a 'socially and educationally backward class', therefore, the reservation in their favour is will be within the power of the State as contained in Article 15(4) of the Constitution of India.
The court also directed the State Government to review the reservation in a period of five years and to take steps to improve the standard of education imparted in the Government Schools so that the reservation may not be further extended beyond a period of five years.
Case Title: S. Sampoornam v. C.K Shanmugam
Citation: 2022 Livelaw (Mad) 143
Justice N Anand Venkatesh of the Madras High Court has recently held that the Coparcenary rights are not taken away by the Hindu Succession Act 1956. In fact, it has been reiterated even after coming into force of the 2015 amendment.
The court was considering a second appeal filed by for claiming share in the ancestral property for the appellant himself and his three sisters, defendants 2 to 4 from his father, first defendant.
The court held that when the Hindu Succession Act, 1956 was not in force, the old Hindu Mitakshara law was governing the field. Under the Mitakshara law whenever a male ancestor inherits any property from any of his parental ancestors up to three degrees above him, then his legal heirs upto three degrees below him, will get an equal right as co- parceners in that property.
In the present case, since the great great grandfather died even before the Hindu Succession Act Came into force, the ancestral property was governed under the Mitakshara Law. Therefore, the respondent could not claim that he enjoyed the property in individual capacity.
10. Degree Of Certainty Must Be Arrived At Before A Fact Is Said To Be Proved: Madras High Court
Case Title: R. Selvaraj(died) and ors v Amutha and ors
Citation: 2022 LiveLaw (Mad) 144
While considering a second appeal against the order of Sub Judge for enjoyment of suit schedule property, the Madras High Court bench of Justice N. Anand Venkatesh, while passing the order focused on the importance of bringing certainty to a fact especially in civil matters.
The main question was regarding the admissibility of a document showing a family arrangement for enjoyment of property in a particular manner between the family of original owners of the property. The court highlighted that this document in question was never mentioned before even in the sale deeds also and was introduced for the first time during the pendency of the suit.
The court held that a degree of certainty must be arrived at for a fact to be proved. Proof does not mean proof to rigid mathematical demonstration, because that is impossible, and it must only mean that such evidence as would induce a reasonable man to come to the conclusion.
In the present case, any reasonable person would have doubts about the genuineness of the document and the only reasonable conclusion is that the document was not a real one and was created to defeated the claims of parties to the registered document.
Case Title: Popular Front of India v. Haj Committee of India and Ors
Citation: 2022 LiveLaw (Mad) 145
The Madras High Court was recently considering the writ petitions filed by Popular Front of India challenging the guidelines framed by the Haj Committee for the year 2022 regarding embarkation points and to include Chennai Airport as one of the embarkation points for the Haj pilgrims.
The bench comprising Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy stated that if found appropriate, the Haj Committee may take a decision to make necessary amendments in the guidelines to include other embarkation points, keeping in mind the recommendations of the State Government and the number of persons who travel for the Haj from any of the embarkation points.
The court was not inclined to pass a definite order against the guidelines as they were issues in view of the Covid-19 pandemic and it was not for the courts to decide upon the policy guidelines of the Committee.
12. Counsel Has Professional Duty To Exercise The Right Of Re-Examination: Madras High Court
Case Title: B Amudha v K Rajendran(Died) and Ors
Citation: 2022 LiveLaw (Mad) 146
The Madras High Court recently observed that a counsel has a professional duty to exercise their right of re-examination for upholding the cause of their clients. Justice G.R Swaminathan noted that the sense and meaning of the answers given by the appellant in trial must have been brought out by re-examination by the counsel.
The appellant had sought for protection under the exception set out in Section 19(b) of the Act which states that Specific Performance cannot be sought against a transferee for value who has paid his money in good faith and without notice of the original contract.
The court while highlighting the ambulatory nature of the onus of proof observed the following-
"There is a game involving passing the ball and when the music stops the person holding the ball is declared out. The ambulatory nature of onus of proof plays out likewise. The burden keeps shifting back and forth. In this case, the onus shifted from the appellant to the plaintiff who passed it back to her. If only re-examination had been done and the appellant had clarified that she became aware of the facts relating to the agreement only during trial and had reiterated her lack of knowledge about the prior contract before she paid her money to the first defendant, the burden would have once again shifted to the plaintiff."
Other Developments
13. Madras High Court Stays Single Judge's Order For Closure Of TASMAC Bars
Case Title: The Managing Director and Anr v. S. Jaggannathan
Case No: W.A 883 of 2022 and C.MP No. 5926 of 2022
The Madras High Court bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy has recently ordered an interim stay on the order passed by Single Judge for closure of 'bars' attached to the TASMAC (Tamil Nadu State Marketing Corporation) Shops.
The appellants submitted that the Single Judge had issued directions to discontinue the bar attached to the TASMAC shops without hearing those who have been granted licence/permission to collect empty bottles and sell eatables in the Bar attached to TASMAC shop and they were not made parties to the litigation.
It was also contented that closing of these bars would bring great loss to the state. He further highlighted that the main purpose of introducing such bars was to ensure that people did not consume illegal alcohol and closing them would result in people consuming alcohol in the public causing more nuisance to others.
14. Madras High Court Issues Notice On Composer Ilaiyaraaja's Plea Over Copyright Infringement
Case Title: Illaiyaraja v. M/s Indian Record Manufacturing Co Ltd and Ors
Case No: OSA 75 of 2022 and CMP 5719 of 2022
The Madras High Court bench of Justices M. Duraiswamy and T.V Tamilselvi ordered notice to the respondents on a petition filed by Ilaiyaraaja challenging a single judge order, granting injunction in favour of India Records Manufacturing Company against him and others over select music from 30 South Indian films.
Ilaiyaraaja contented that the order passed by the single judge was without appreciation of proper facts, without material evidence and without impleading necessary parties i.e., the producers of films.
Ilaiyaraaja further contented that the single judge has failed to appreciate true purport and intent of Proviso (b) of Sec. 17 of the Copyright Act, 1957, which recognize that if a cinematograph film is made for a valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein, this proviso is not limited to a producer of a cinematograph film and is wider in its scope and any person who makes a cinematograph film for a valuable consideration.
In case of musical work, as per clause 14 (a) (i), copyright is the exclusive right "to reproduce the work in any material form including the storing of it in any medium by storing in in electronic means." This gives a clear meaning that only the author who originally produced the musical work can grant right to reproduce it.
15. Madras High Court Directs Sensitization Of School Teachers On LGBTQIA+ Students Issues
Case Title: S Sushma and Anr v. Director General of Police and Ors
Case No: WP 7284 of 2021
The Madras High Court bench of Justice Anand Venkatesh directed the State Government to organize a program spanning from 6-8 weeks inviting one teacher from every school for sensitization on dealing with issues relating to children belonging to the LQBTQIA+ community.
The court stated that these teachers can be addressed by NGOs working for the welfare of the community, members of the community, and even medical professionals who have proper understanding of the issue.
These sensitised teachers can then be assigned the task of the counsellor to whom the concerned student can talk freely. They can thus be a centre point to speak to the child, parents and other students who are studying with the child.
The court highlighted the untold trauma and physical abuse faced by students belonging to the LGBTQIA+ community in that they do not have any mechanism to discuss their issues and make complaints. The court also stated that there are many unreported cases where persons belonging to the community commit suicide since they lose all hope in the society and they don't find any light at the end of the tunnel.
