Case BriefsHigh Courts

Madras High Court: Teekaa Raman, J., observed that there is no mandatory provision under the Negotiable Instruments Act that both the signature and thumb impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding the burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable instruments Act.

Plaintiff filed a suit against the respondent for recovery of money of Rs 1,00,000 each, borrowed by him and executed promissory notes in favour of the plaintiff for consideration.

Resisting the suit, the defendant filed a written statement admitting the execution of the suit promissory notes. However, the defendant raised the plea that the promissory notes had been executed towards security for the loan borrowed and that the loan due was settled by way of execution of a sale deed in the name of the plaintiff’s wife.

Further, it was alleged that the suit promissory notes were not supported by consideration and the blank promissory notes were filled up for the purpose of filing the suit.

Trial Court considered the statutory presumption under Section 118 of the Negotiable Instruments Act and the authority of the holder in due course to fill up the promissory notes under Section 20 of the Act, decreed the suit by the judgment and decree.

First Appellate Authority had erroneously allowed the appeal and observed that the thumb impression of the defendant was not obtained and that the signature in each promissory note was different from each other on comparison by a naked eye. Accordingly, the trial Court’s decision was reversed.

On being aggrieved with the above, the plaintiff approached this, Court.

Analysis, Law and Decision


Questions for Consideration:

  1. Whether the first Appellate Court erred in law in not considering the scope of Section 118 of the NI Act and the legal presumptions arising under it before dismissing the suit by reversing the well-considered reasonings of the trial Court?
  2. Whether the first Appellate Court erred in law in rejecting the plaintiff’s right to fill up the suit promissory notes under Section 20 of the Negotiable Instruments Act whereupon the holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount?
  3. Whether the first Appellate Court is correct in dismissing the suit on the basis of a comparison by naked eye particularly when the defendant has categorically admitted the “execution” and “issuance” in his written statement and in evidence before the Court?

High Court observed that the trial Court had rightly invoked the presumption under the Negotiable Instruments Act and called upon the defendant to rebut the presumption. However, in Court’s opinion, the Appellate Court had not even considered the presumption under the NI Act and not followed even the burden of proof or onus of proof as stated in the Indian Evidence Act.

The Bench stated that once the signature found in the suit documents has been admitted, there is no need or necessity for the plaintiff to give an explanation for not obtaining the thumb impression in the suit promissory note.

Additionally, the High Court noted that it is trite law that in the case of mandatory presumption, the burden of proof on the defendant in such a case would not be as light.

When there is a statutory presumption in favour of the plaintiff, it has to be rebutted by proof and not by a bare explanation. Unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.

Once statutory presumption is raised, onus of proving absence of consideration is on the executant.

The Bench added that the lower Appellate Court could not understand the facts of the case and had applied wrong preposition of the burden of the proof forgetting the presumption under NI Act and it was the onus of the proof by the defendant to discharge the burden.

Therefore, lower Appellate Court erred in law on rejecting the plaintiff’s right to fill up the suit promissory notes under Section 20 of the NI Act, whereupon the holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount and the “execution” of cheque and “issuance” of cheque in his written statement and in his evidence before the Court, the lower Appellate Court is not right in raising suspicion with regard to the execution merely on the ground that the thumb impression was not obtained.

In view of the above discussion, the second appeal was allowed. [R. Barathbran v. R. Nallathambi, SA Nos. 142 of 2012, decided on 2-3-2022]


Advocates before the Court:

For Appellants: Mr. N. Manokaran

 For Respondent: Mr. C. Prakasam

Hot Off The PressNews

Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of the Madras High Court as Permanent Judges of that High Court:

1. Shri Justice Govindarajulu Chandrasekharan,

2. Shri Justice Veerasamy Sivagnanam,

3. Shri Justice Ganesan Ilangovan,

4. Ms. Justice Ananthi Subramanian,

5. Ms. Justice Kannammal Shanmuga Sundaram,

6. Shri Justice Sathi Kumar Sukumara Kurup,

7. Shri Justice Murali Shankar Kuppuraju,

8. Ms. Justice Manjula Ramaraju Nalliah, and

9. Ms. Justice Thamilselvi T. Valayapalayam

The Supreme Court Collegium has resolved to recommend that Shri Justice A.A. Nakkiran be appointed as Additional Judge of the Madras High Court for a fresh term of one year w.e.f. 3 rd December, 2022.


Supreme Court of India

[Collegium Statement dt. 10-5-2022]

Hot Off The PressNews

As per the Notification dated 5th May, 2022, Chief Justice of Madras High Court dispensed with wearing of black gown by the Advocates while appearing before the Madras High Court, during Summer Vacations 2022. However, all Advocates shall compulsorily wear a collar band and black coat.


Madras High Court

[Notification No. 111 of 2022]

Legal RoundUpWeekly Rewind


TOP STORY OF THE WEEK


Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’ 

In a relief to the Anganwadi workers and helpers working tirelessly at the grassroot level, the Supreme Court has held that the Anganwadi Workers and Helpers are employed by the State Government for wages in the establishments to which the Gratuity Act applies, hence, they are entitled to payment of Gratuity.  

The Court also observed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits. 

Therefore, it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society. 

Read more… 


SUPREME COURT


Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases 

In a case where an employee had produced a fake certificate for seeking employment, the Supreme Court has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases. 

In the case at hand, while the disciplinary authority had imposed a punishment of dismissal from service on the delinquent, the Bombay High Court had directed reinstatement of the respondent without any back wages and other benefits.  

The Supreme Court, however, agreed with the disciplinary authority’s decision and observed:  

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.” 

Read more… 


‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees’ battle  

In a long drawn battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, a 3-judge bench of Supreme Court has appointed a two-member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out. 

Finding the report of the previous committee faulty, the Supreme Court observed, 

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.” 

Read all about the newly formed committee and its tasks and timelines on the SCC Online Blog.  

Read more… 


High Courts


Madras High Court| Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of Madras High Court directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals. 

Court observed that, 

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.” 

Read more… 


Bombay High Court| Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

In a matter wherein an Advocate alleged that the Court was giving priority to certain matters and to certain advocates, the Court observed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice. 

Bench also expressed that, “It has to be borne in mind that casting scurrilous aspersions not only has the inevitable effect of undermining the confidence of the public in the judiciary but also has the tendency to interfere with the administration of justice.” 

Read more… 


Bombay High Court| Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Bombay HC expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic one. 

High Court stated that the declaration of the petitioners that they would recite religious verses either in the personal residence of another person or even at a public place is firstly,  encroachment upon another person’s personal liberty and secondly, if a declaration is made with particular religious verses would be recited on the public street, the State government is justified in carrying an apprehension that such act would result in disturbance of law and Order. 

Read more… 


Delhi High Court| Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin? 

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Delhi High Court held that, 

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.” 

With regard to contempt, the Court observed that, 

“The underlying purpose of the law of contempt is meant to serve public interest and build confidence in the judicial process. This flows from how the functioning of a democratic society is sustained by the rule of law and wilful violation of the same would enable anarchy.” 

Read more… 


Legislation Updates 


IFSCA issues framework for FinTech entity in IFSCs 

The International Financial Services Centres Authority (IFSCA) has issued a detailed “Framework for FinTech Entity in the IFSCs” in order to develop and regulate financial products, financial services and financial institutions in the International Financial Services Centres (IFSC) and to encourage promotion of financial technologies (‘FinTech’) across the spectrum of banking, insurance, securities, and fund management in IFS. 

Read more… 


SEBI (Custodian) (Amendment) Regulations, 2022 

The Securities and Exchange Board of India has issued the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022 to amend Securities and Exchange Board of India (Custodian) Regulations, 1996. 

The amendment modifies Regulation 8 dealing with Procedure and grant of certificate and inserts clause (7) to provide that a custodian holding a certificate of registration as on the date of commencement of the Securities and Exchange Board of India (Custodian) (Amendment) Regulations, 2022, may provide custodial services in respect of silver or silver related instruments held by a mutual fund only after taking prior approval of the Board. 

Read more…  


Income-tax (Ninth Amendment) Rules, 2022 

On April 21, 2022, the Central Board of Direct Taxes (CBDT) has issued the Income-tax (Ninth Amendment) Rules, 2022 to amend Income-tax Rules, 1962 and introduces Conditions for furnishing return of income by persons referred in section 139 (1) of the Act.  

Read more … 


 

 

Case BriefsHigh Courts

Madras High Court: Dr Anita Sumanth, J., expressed that with the inception of Section 74(5)of GST Act, it is the case of the revenue that the collection of amounts in advance has attained statutory sanction, provided the same are voluntary in Form GST-DR03.

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

In the present matter, mandamus was sought to restrain the first respondent from harassing the petitioner baselessly without addressing its grievance petition and refund claim pending before the respondents.

The petitioner was registered as a Small-Scale Industry under the MSME Act and was an assesseee under the provisions of all the Goods and Service Tax Act, 2017. An investigation was conducted on the premises of the petitioner and various documents and registers were seized. Further, during the investigation, a statement was recorded from one S.A Kumar, who also deposed to the affidavit filed in support of the present petition, to the effect that the petitioner had not discharged its GST liability correctly.

The Managing Director had signed the undertaking and in line with the same, the petitioner remitted a sum of Rs 1 crore.

Petitioner stated that it had no liability to tax, that the MD and Officials were forced to accept liability to tax and the admission was by no means, voluntary.

Further, the petitioner had made serious allegations about the high handedness of the authorities during the conduct of search and the scant regard expressed for the sentiments of the family of the MD and employees of the petitioner.

Whether the collection of any amount during the process of investigation is statutorily permitted?

Whether the products sold are branded or unbranded?

If unbranded then there is no liability to GST.

Whether the petitioner is entitled to the refund of the amounts paid during investigation and the revenue relies upon the provisions of Section 74(5) of the Act?

Section 74 provides for a determination of tax not paid or short paid or erroneously refunded or the wrongful availment or utilization of Input Tax Credit by reason or fraud, willful misstatement or suppression of facts.

The remittance under Section 74(5) is in terms of Rule 142 of the Central Goods and Services Tax Rules, 2017 and has to be made in Form GST DRC-03.

It was noted that the payment was ‘voluntary’ and the same procedure had been followed in regard to the second instalment as well.

“Prior to the inception of the GST Act, instances were rife when officials of DRI and Customs Department were infamous for collecting advance payments of tax from assesses, many a time under coercion, and in the course of investigation itself.”

Thus, according to the revenue, the remittances made by the petitioner during the investigation in terms of Section 74(5) amount to ‘self-ascertainment’. Having remitted two instalments of tax as per is own ascertainment, it cannot pray for a mandamus seeking a refund of the amount.

“No collection can be insisted upon prior to a final determination of liability being made.”

Further, the Bench added that, what Section 74(5) provides is the first opportunity for an assessee to pay tax, interest and penalty liability even prior to the issuance of a show-cause notice and such acceptance will have to be in the form of either self-ascertainment or an ascertainment by the proper officer.

In the present matter, the enquiry and investigation were on-going, personal hearings had been afforded and both the parties were fully geared towards issuing/receiving a show-cause notice and taking matters forward.

Hence, the understanding and application of Section 74(5) was wholly misconceived.

Therefore, the mandamus as sought for by the petitioner was issued and the amount collected of Rs Two Crores shall be refunded to the petitioner within a period of four weeks.[Shri NandhiDhall Mills India (P) Ltd. v. Senior Intelligence Office, WP No. 5192 of 2020, decided on 7-4-2022]


Advocates before the Court:

For Petitioner: Mr.Hari Radhakrishnan

For Respondents: Mr.V.Sundareshwaran (for R1 to R3 & R5)

Senior Panel Counsel R4 – Given up

Case BriefsHigh Courts

Madras High Court: Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

In the present matter, the accused was convicted for life sentence for the offences under Section 5(I) read with Section 6(1) of the Protection of Children from Sexual Offences Act, 2012 with a fine of Rs 1,00,000 for an offence under Section 363 IPC along with a fine of Rs 20,000.

Accused was running a taloring shop and had befriended the victim girl aged about 16 years when she went for tailoring training for about two months. Further, the accused had enticed the girl and had sexually abused her.

Upon medical examination it was found that the accused had penetrative sexual intercourse with the victim girl.

The accused denied having committed the crime.

Sessions Judge held that the prosecution had proved the guilt of the accused and on taking of the fact that the accused had repeated sexual intercourse with the victim girl, the accused was guilty of the offence under Section 5(I) of the POCSO Act.

Analysis, Law and Decision

As per Section 363 of Penal Code, 1860, a person who takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, from the lawful guardianship of a guardian, is said to have kidnapped the minor.

In the present matter, the victim girl had walked out of her house on her own in the pretext of having some old clothes stitched. She had travelled with the accused and was caught after nearly 24 hours and never made an attempt to escape from his custody.

Therefore, the essential ingredients of the offence under Section 363 IPC were not made out.

Bench concluded that the trial Court was right in its finding that the accused was guilty of the offences under Section 5(I) and Section 6(1) of the POCSO Act.

Further, the Court added that no doubt, the accused was a married person he could be said to be guilty of deceiving the victim girl on a promise of marriage, but the evidence of the victim girl would show that there was a love affair between the two and the accused had stated that he could not live without seeing her.

Hence, in Court’s opinion, a minimum sentence of imprisonment for a period of 20 years would suffice.

While concluding the matter, the Court stated that,

“…it is necessary for us to put an end to the practice of the two-finger test. We find that the two-finger test is being used in cases involving sexual offences particularly, on minor victims.”

High Court directed the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals.

In view of the above, criminal appeal was partly allowed.

Direction

The conviction and sentence for the offence under Section 363 IPC is set aside in toto. The conviction for the offences under Section 5(l) and 6(1) of the POCSO Act is confirmed and the life sentence is, however, reduced to 20 years of rigorous imprisonment. The fine of Rs 1,00,000/- and the default sentence of simple imprisonment for 3 months, is confirmed. [Rajivgandhi v. State, 2022 SCC OnLine Mad 1770, decided on 21-4-2022]


Advocates before the Court:

For Appellant: Mr. S. Sivasubramanian

For Respondent: Mr. A. Thiruvadi Kumar, Additional Public Prosecutor

Case BriefsHigh Courts

Madras High Court: Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the Constitution, M. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

High Court addressed a case of a highly placed Law Officer of the State Government, in order to defend the honour and glory of the noble profession, against the unilateral and arbitrary decision taken by a fickle minded officer, contrary to the specific instructions given by the Chief Secretary, State Government.

The Government need to provide budgetary allocation to Departments, which are very vital for a welfare state to maintain peace and harmony. Thus, the honorarium made to the services of the Law Officers of the State to defend its actions is also a very important, essential and unavoidable expenditure.

In the instant matter, oblivious of the facts and pivotal role played by the respectable and highly placed Law Officer on request, the impugned order of restricting the fee, came to be passed under the pretext of saving expenditure to the Government.

Bench remarked that,

“Once you accept to defend the Government or its agencies, you cannot complain of the poor and nominal fee paid by them, for, the Government is for the people and it is not destined to make profit, but to serve the people.”

“…not only the Government, but also the Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice, more particularly the top law officers.”

With regard to the legal profession being a noble profession, the Court expressed that, when a lawyer for an individual client fight for the life and liberty of his client, the Law Officers of the State are cast with onerous responsibilities to strike a balance of individual and fellow citizens rights along with State, its policies, welfare schemes, etc.

Additional Advocate General, J. Ravindran, sitting in an unenviable position in a matter directly touching upon his own office, contested against the petitioner, which shows the Law Officers render their services above self against his own clan, raised serious concerns of impleading Chief Secretary as a party respondent in may petitions unmindful od the fact as to whether the issue pertains to the Chief Secretary or not?

The Court stated that, impleading of Chief Secretary in all the writ petitions, in which, he is not at all answering respondent is causing great hardship. Therefore, the Court directed the Registry in respect of arrayal of unnecessary parties, particularly the Chief Secretary to the Government.

In Court’s opinion, the professional fee paid to the Law Officers will not commensurate to the amount of service rendered, their dedication, amount of time spent, mental and physical labour, age and expertise and their sacrifice of lucrative private practice.

The impugned e-mail challenged in the present petition reflect the same mentality of an individual officer treating the highly placed Law Officer on par with him and unable to digest the special fee paid to him contrary to the concerted decision taken by the High-Level Committee.

The general outlook and attitude of a government servant happens to be of a paid servant.

Further, the Court also observed that,

Lawyers have every right to decline the brief, if his services and his dignity is not respected. In order to do social justice or economic justice an Advocate may accept higher fee from an affluent client and lesser or no fees from a poor or downtrodden litigant.

Court reiterated the instructions issued by the Chief Secretary to Government that “Generally, the special fees claimed by the Advocate General are not to be questioned.” but in the instant writ petition, it was questioned by the respondent contrary to the instructions which always bind on him.

Lastly, the Bench stating that the Rulers may change, but the Government is continuously running machinery and its servants shall not shift their loyalty to Government to please the Rulers set aside the impugned order.

While concluding the matter and considering the plight of the Law Officers, the following directions were issued:

(a)The Law Officers shall be given due respect for their dedication in defending the Government.

(b)In particular, the highest Law Officers, viz., Advocate General and Additional Advocate General, who are required in emergent situation to appear before the Court to defend the interest of the State, the officials shall not insist on the Government Order requesting him to appear and also shall not deny the claim of fee or special fee whatsoever claimed by them in terms of the instructions issued by the Chief Secretary to Government.

(c) The Officials shall be prompt in getting legal opinion in time, giving instructions to the Law Officers in time, if any appeal is preferred, it shall be intimated on time, without any delay. The Government is also equally a litigant which cannot expect a special treatment in condonation of delay matters.

(d) Whenever they seek instructions, the Government shall ensure that its Officials give top priority and produce the information, and records sought by them.

(e) The Law Officer shall be provided with the initial fees and after completion of the litigation the final fee. The said fee shall be paid immediately and it shall not be unduly delayed.

(f) The fee structure of the Law Officers shall be revised once in three years corresponding to the Price Index.

(g)If the bill is submitted by a Law Officer, it shall be settled at once, if not within a reasonable period that is to say to a maximum of two months.

(h) Further, depending on the sensitivity or importance of the case, the fee structure of a private Lawyer will raise. Whereas, the Law Officer of the lower rank will get the same fixed fees and to be particular, in batch matters, they would get fee only for the main matter and for the remaining connected matters, a fixed minimum fee is paid. In such a situation, the Government shall consider immediate payment of fee and treat it is as honorarium to the Law Officers for the enormous efforts and time put in by them.

(i) The Government at any cost shall not reduce the fee than one was fixed at the time of appointing a Law Officer, more particularly, due to the change of regime. As stated earlier, the Government is continuing machinery and defending the case of the Government and of the people is a continuing affair and therefore, the Law Officer shall not be slighted down and they shall be paid with utmost respect which they deserve for the meritorious efforts put by them.

[S. Ramasamy v. State of Tamil Nadu, 2022 SCC OnLine Mad 1519, decided on 15-2-2022]


Advocates before the Court:

For Petitioner :

Mr. G. Rajkumar

For Respondents :

Mr. J. Ravindran

Additional Advocate General Assisted by Mr. Tippu Sultan Government Advocate

Case BriefsHigh Courts

Madras High Court: Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigants, S.M. Subramaniam, J., remarked that,

Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.

Petitioner was a senior citizen and suffering from ailments and hence, could not come over to Madurai and make arrangements for filing appeal.

Petitioner’s Counsel stated that the appeal was presented to the Court as early as on 31-7-2008, but the appeal papers could not be traced out in the office of the Court for long years as the papers were returned.

Analysis, Law and Decision

The entire case bundle revealed that there was no proof to establish that the appeal was filed on 31-7-2008.

High Court stated that,

Mere affixing a seal of the Madras High Court is insufficient as such filing of papers must be registered in the appropriate register maintained by the Registry.

Bench expressed that,

Uncondonable delay cannot be condoned in a routine manner. Law of limitation is substantive.

Elaborating the reasoning, High Court added that the Courts are vested with the power of discretion to condone the delay, that does not mean that enormous delay in instituting the suit or appeal is to be condoned mechanically.

Though, if the reasons are candid and convincing, then the Courts are empowered to exercise its power of discretion for the purpose of condoning the delay.

Time limits

Question may arise about the purpose and object of the law of limitation as the refusal of condonation of delay sometimes causes denial of rights to the litigants. However, there is a definite purpose for the prescription of the period of limitation for the institution of litigations/appeals.

The Bench also added that,  If any citizen of our great Nation is allowed to exercise his right at his whims and fancies without reference to the law of limitation, circumstances may arise that the rights of other fellow citizens are prejudiced or infringed. Rights cannot be exercised in an unguided manner.

Any citizen, who slept over his right, cannot wake up one fine morning and knock the doors of the Court for redressal of his grievances

Adding to the above analysis, Court stated that, Exceptions can never be adopted as a rule and they are to be exercised exceptionally and condoning long delay in a mechanical manner by the Courts cannot be considered as a good practice.

Imposing Heavy Costs

Costs cannot be in terms with reference to the number of days of delay. It is not an arithmetic principle, where long delay is to be condoned with heavy costs and meagre delay is to be condoned with meagre costs. Such a principle is opposed to public policy and therefore, this Court is not prepared to accept such a concept of imposing heavy costs for condoning enormous delay by violating the law of limitation, which is substantive and also the legal principles to be followed.

Lastly, the High Court held that,

If the delay is about three months or upto five or six months, the Courts may take a lenient view, but not in respect of longer delay.

Hence, the Court declined to condone the delay of 2575 days in filing the appeal. [T Lakshmi v. M. Vasantha, 2022 SCC OnLine Mad 1406, decided on 30-3-2022]


Advocates before the Court:

For Appellants: Mr A.C. Arun Kumar

Case BriefsHigh Courts

Madras High Court:  While stating that Central Information Commission has only made recommendations, which cannot by any stretch of imagination be taken as a statute so as to give effect, the Division Bench of Munishwar Nath Bhandari, CJ and D. Bharatha Chakravarthy, J., dismissed the petition.

Present petition was filed for seeking a direction on the respondents for giving effect to the recommendation made by the Central Information Commission, one of the recommendations was to affix the postal stamp on the RTI application in the place of India Postal Order of Demand Draft.

Petitioner wants the Court to conduct a roving and fishing enquiry as to what steps were taken by the respondents based on the recommendation of the CIC.

Decision

High Court held that it cannot act as a post office to collect and exchange information.

Bench added that it is for the authorities concerned to decide what action should be taken based on the recommendation of the Central Information Commission.

In view of the above, petition was dismissed. [S.P. Muthu Raman v. Department of Personnel and Training, 2022 SCC OnLine Mad 1268, decided on 17-3-2022]


Advocates before the Court:

For the Petitioner: Mr S.Muthuvairam for M/s R. Anand

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Madras High Court:

1. Ms. Nidumolu Mala,

2. Shri Sunder Mohan,

3. Shri Kabali Kumaresh Babu,

4. Shri S. Sounthar,

5. Shri Abdul Ghani Abdul Hameed, and

6. Shri R. John Sathyan.


Supreme Court of India

[Collegium Statement dt. 16-2-2022]

Appointments & TransfersNews

President appoints Shri Justice Munishwar Nath Bhandari, Judge of the Madras High Court, to be the Chief Justice of Madras High Court with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notification dt. 10-2-2022]

Case BriefsHigh Courts

Madras High Court: C.V. Karthikeyan, J., expressed that, “One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice.”

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

Present petition was filed in the nature of Certiorari calling for the records of the impugned order passed by the first respondent and the consequential proceedings passed by the fourth respondent.

Noting that he was a Hindu, Court added that one of the basic tenets to be followed by every Hindu is tolerance and tolerance must be his own community or religion and in particular, to also to every other religious practice.

Petitioner raised objections against the fifth respondent who had apparently built a church, which in petitioner’s view caused nuisance because the respondent conducted prayers using loudspeakers throughout day and night.

Further, the petition was pending wherein the petitioner claimed to direct the first and second respondents and the Inspector of Police to ensure that the third to sixth respondents who were private individuals cannot use their house for prayer purposes by using loudspeakers and to remove the CCTV cameras put by the respondents in their house facing the house of the petitioner.

The above-said petition was disposed of based on the fifth respondent’s undertaking that he would not use loudspeakers.

In the instant petition, the grievance revolved around the approval granted by the first respondent with regard to building permission for the church. The petitioner being a resident was not directly involved with the construction. He may have grievances over the activities which were being conducted or for which the building was put to use.

Petitioner’s counsel complained that the building or now the church, was in the residential area, however, it was seen that there was also a temple in that residential area.

High Court remarked that,

“The petitioner should learn to live with everybody else around him. This country takes the pride in unity in diversity. There cannot be diversity in unity.” 

“Petitioner should accept the group of people living across and around with him and he should also accept that people of various faith and various caste, creed and religion and given rights under the constitution. The country is a secular country recognizing practice of religion.”

Further, the Bench observed that District Collector may by himself/herself have a meeting with the fourth respondent and impress upon the fifth respondent that it is only prudent to be restrained and it is not required that a prayer should be put forth in loudspeakers for the God to hear.

Lastly, the Bench stated that let the fourth respondent realize his responsibilities and appreciate that liberty had been granted to him to respect the residents in that area.

Hence, if the first respondent/District Collector either by himself/herself were to impress upon the fifth respondent to practice tolerance and respect, the Court was confident that sense and sensibility would prevail over pride and prejudice.

In view of the above, the petition was disposed of. [Paulraj v. District Collector, WP (MD) No. 1276 of 2020, decided on 10-1-2022]


Advocates before the Court:

For Petitioner: Mr C.Kishore

For R1 to R4: Mr N.Satheesh Kumar, Additional Government Pleader

Case BriefsHigh Courts

Madras High Court: N. Sathish Kumar, J., while addressing a matter with regard to the dishonour of cheques under Section 138 of Negotiable Instruments Act, 1881, held that the moratorium provision contained in Section 14 of the Insolvency and Bankruptcy Code, would apply only to corporate debtor, but the natural persons mentioned in Section 141 of Negotiable Instruments Act continue to be statutorily liable under Chapter XVII of the Negotiable Instrument Act.

Petitioner’s case was that the petitioner was arrayed as one of the accused in cases pending before the lower courts for the offences under Section 138, 141 and 142 of the Negotiable Instruments Act, 1881.

As per the request of the petitioners ‘company, the complainant company agreed to supply the “Wet Blue Cow Hides” and supplied the same. During the course of business, the accused Company was due and payable to the respondent Company for the supply made. For the said purpose 2nd accused had issued various cheques but the said cheques were dishonoured with an endorsement of “Payment Stopped by the Drawers”. Hence, the respondent had filed the complaints before Judicial Magistrates’ Court.

Petitioners alleged that no legal notice was served by the respondent, hence the complaint under Section 138 NI Act was legally unsustainable and in view of the same while challenging the said complaint present petition was filed.

Analysis, Law and Decision

High Court reiterated a settled position of law that, the criminal liability of natural persons in case of a complaint filed under Sections 138 and 141 of the Negotiable Instruments Act, 1881 would survive, but would not be attracted against the company.

Bench noted that in the present case, the insolvency process was initiated by NCLT, and a moratorium had been declared under the Insolvency and Bankruptcy Code.

Therefore, referred to the Supreme Court decision in P. Mohanraj v. Shah Brothers Ispat (P) Ltd., (2021) 6 SCC 258, wherein it was held that the moratorium provision contained in Section 14 of the Insolvency Bankruptcy Code, would apply only to corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instrument Act,

High Court expressed that, the moratorium was only in respect of the corporate debtor and not in respect of the directors/management and therefore the petitioners 2 and 3 as natural persons were liable for prosecution. However, in view of the declaration of moratorium by NCLT, the prosecution against the company cannot be allowed to continue.

In view of the above, Court quashed the proceedings in respect of 1st petitioner and with regard to petitioners 2 and 3, Court opined that the issue was triable and required an appreciation of evidence and this Court cannot decide the same in exercise of its jurisdiction under Section 482 of CrPC.

High Court directed the petitioners and respondent to co-operate with the trial court for the early completion of trial.[Nag Leathers (P) Ltd. v. Muzain Hides, 2022 SCC OnLine Mad 205, decided on 3-1-2022]


Advocates before the Court:

For Petitioner in all Crl.O.P.s :  Mr T.P. Prabakaran

For Respondent in all Crl.O.P.s : Mr M. Guruprasad

Appointments & TransfersNews

Supreme Court Collegium has recommended the elevation of Mr Justice Munishwar Nath Bhandari, Judge, Madras High Court [PHC: Rajasthan] as Chief Justice of Madras High Court.


Supreme Court of India

[Statement dt. 29-1-2022]

Case BriefsHigh Courts

Madras High Court: Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Background

A Division Bench had passed an order referring the following two questions for consideration by a Larger Bench:

(i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of the Constitution of India? and

(ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 does not envisage this?

The questions were referred to in view of the order of Division Bench granting temporary leave for a period of two weeks to the convict. The said petition was preferred by the wife of the detenu, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having a child from the wedlock and the petitioner was advised to have infertility treatment along with her husband.

The Division Bench had granted temporary leave to the convict and the sentence was suspended for the said period and accordingly, the respondents were directed to release the husband subject to certain conditions.

Later the petitioner filed a fresh petition to seek 6 weeks of leave to her husband for which Division Bench noticed that there was no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 for grant of emergency or ordinary leave for a convict to have a conjugal relationship with spouse.

In view of the above circumstances, the matter was referred to Larger Bench.

Analysis and Discussion

Whether the denial of conjugal rights to a convict would amount to the denial of rights guaranteed under Article 21 of the Constitution of India?

It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty. In the present matter, the petitioner’s husband was tried in a criminal case and had been convicted for life imprisonment.

As per the facts of the case, the petitioner’s husband was granted leave for a period of two weeks, which he availed and further filed a petition seeking 6 weeks leave for undergoing the infertility treatment.

The Punjab and Haryana High Court, in Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479, had considered the issue of conjugal rights of the convict and had made a reference to the provisions of the Prisons Act, 1894 and the Supreme Court decision in Sunil Batra v. Delhi Admn., (1978) 4 SCC 494. Further, the petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India.

High Court expressed that the provisions of the 1982 Rules do not provide leave for having a conjugal relationship with spouse.

“…if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again.”

The Bench added that, it cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, leave on that ground cannot be sought time and again.

Whether the wife of the convict can seek to leave to enable her, and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons?

High Court opined that petitioner’s request to undergo infertility treatment in a circumstance when the convict had no child from the wedlock forms and extraordinary reason for grant of leave.

Therefore, petitioner case fell under Rule 20(vii) of the 1982 Rules.

If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship.

Answers to the Questions referred:

(i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.

(ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India.[Meharaj v. State, 2022 SCC OnLine Mad 381, decided on 20-1-2022]


Advocates before the Court:

For the Petitioner: Mr R.Narayanan

For the Respondents: Mr Shunmugasundaram Advocate General assisted by Mr A. Damodaran Addl. Public Prosecutor for 1st respondent

: Mr Hasan Mohamed Jinnah State Public Prosecutor assisted by Mr S. Santhosh Government Advocate (Criminal Side) for respondents 2 to 4

:Mr Avinash Krishnan, CGSC for 5th respondent

: Mr N. Dilip Kumar Amicus Curiae

Case BriefsHigh Courts

Madras High Court: Noting a matter involving State Revenues, S.M. Subramaniam, J., expressed that,

“…writ petitions involving large scale revenue, more specifically, Income Tax, Customs, Excise, Mines and Minerals etc., interim orders are in force for several years and the Nation’s properties are being looted or misused or taken undue advantage of.

Such a situation is absolutely unconstitutional and further anything under the earth belongs to the Government and it is the Nation’s property, which belongs to ‘We the People of India’. Thus, no one can be allowed to extract without adhering to the Act, Rules and Regulations and any violations are to be treated seriously and all these persons must be liable for all consequences.”

Why did the present matter reach this Court?

The petition was filed to seek direction to the first and third respondents to grant necessary transport permits in favour of the petitioner for mining and transporting mined minerals in terms of the mining lease granted vide Government Orders in respect of lands situated at Therani Village to its factory at Dalmiapuram, Trichy District in respect of petitioner’s mining lease areas.

Analysis and Discussion

High Court stated that while considering writ petitions relating to mining Operations, this Court would be able to trace out the number of instances where excess mining operations were carried on without adhering to the Rules and Regulations and in some cases by virtue of interim orders granted by this Court and by keeping the petitions long years, undue advantages were taken by the Mining Operators.

The Bench stated that all the above-stated are to be seriously taken note of by the State also, as it involves the State Revenue which is of paramount importance.

Expressing that when large scale State Revenues are involved, more specifically in mining operations, wherever the petitions are entertained, Bench stated that State must ensure that counter-affidavits and vacate stay petitions are filed immediately and the matter is taken up for hearing expeditiously as possible for early disposal as Nation’s interest and Public Revenue is the consideration to be shown by all concerned, including the High Court.

Court further, stated that Registrar General of High Court of Madras shall take note of the allegations that the petitions as the present one are not listed on account of bundles misplaced or on various other reasons, including corrupt activities.

There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.

The Bench directed the Registrar General of the Madras High Court to issue appropriate instructions to the Registry to collect all those writ petitions, where large scale State and Central Revenues are involved and list those matters, without causing any undue delay by obtaining necessary orders from the Chief Justice, if necessary by constituting Special Benches for speedy disposal of those cases.

In view of the above discussion, the petition was disposed of. [Dalmia Refractories Ltd. v. State of Tamil Nadu, 2022 SCC OnLine Mad 288, decided on 11-1-2022]


Advocates before the Court:

For Petitioner: Mr Rahul Balaji

For Respondents-1 and 3: Mr R. Shanmugasundaram, Advocate General Assisted by Mr K.M.D. Muhilan, Government Advocate.

For Respondent-2: Mr B. Rabu Manohar, Senior Central Government Standing Counsel.

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., quashed an FIR stating that S. 295-A IPC is attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.

Petitioner wanted this Court to quash the FIR registered for the offence under Section 295-A of the Penal Code, 1860

Petitioner was a religious leader. It was stated that Arulmighu Bagavathi Amman Temple in Mandaikadu was a well-known temple and recently, witnessed a fire accident.

The question that arose in view of the above incident was with regard to how the restoration measures should be taken.

Petitioner opined that,

“…there is no need to go for what is known as Deva Prasanam and that steps must be taken by the Tamil Nadu Government to bring the temple under Tamil traditions. The opinion expressed by the petitioner was published in newspapers also.”

Defacto complainant found the above stated to be highly objectionable and caused the registration of the impugned FIR. As per the de facto complainant, the petitioner had stated that the temple was cemetery of a mentally retarded girl who belonged to a particular community, though no material was placed by the de facto complainant in support of the said allegation.

When can Section 295-A IPC be attracted?

The above-said Section can be attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.

Bench stated that the petitioner was entitled to express his opinion and the same is duly protected by Article 19(1)(a) of the Constitution of India.

Petitioner’s counsel rightly relied on the Supreme Court decision in Khushboo v. Kaniammal, (2010) 5 SCC 600 and in S. Tamilselvan v. Government of Tamil Nadu, 2016 SCC OnLine Mad 5960.

Hence, the registration of the impugned FIR was unwarranted and stands quashed. [Balaprajapathy Adikalar v. Inspector of Police, 2021 SCC OnLine Mad 7240, decided on 20-12-2021]


Advocates before the Court:

For Petitioner: Mr T. Lajapathi Roy for Mr S. Rajasekar

For Respondents: Mr E. Antony Sahaya Prabahar Additional Public Prosecutor for R.1

Mr K. Rajeshwaran for R.2

Case BriefsHigh Courts

Madras High Court: C.V. Karthikeyan, J., grants compensation to a woman who got bitten by a rat in a hospital.

The instant petition was filed seeking a direction against the respondents to pay a sum of Rs 2,00,000 to the petitioner for an alleged rat-bite suffered by her in her left hand in Government Rajaji Hospital.

Petitioner’s son had suffered grievous injuries in a road accident and was admitted as in-patient in Government Rajaji Hospital. Petitioner and her husband alternatively took care of their son.

When the petitioner was sleeping near the cot of her son, a rat bit the petitioner on her elbow. Later she gave representation to the respondents and sought the abolition of rats from the hospital. Since there was no response, she filed a writ petition seeking compensation of Rs 2,00,000 for the injury suffered by her.

Analysis and Decision

High Court noted that the rat bite was said to have taken place on 23-1-2014. But the petitioner actually took treatment for the same only on 31-1-2014. The explanation given by the petitioner was that only when the swelling and pain increased, she took treatment.

In the medical receipt, it was seen that the duty doctor whose name and other details were not known or rather identifiable, had mentioned rat-bite as the nature of the treatment given.

Petitioner had also submitted newspaper reports of the said incidents, to which the Court stated that though the newspaper reports cannot be conclusive evidence, still the probability of the petitioner having suffered a rat bite can only be inferred as true owing to the reports. In fact, the Medical Superintendent of Government Rajaji Hospital when contacted by Indian Express had only stated that blockages in the drainage system laid to rat menace in the hospital.

The Bench observed that the fact that the petitioner had suffered a rat bite cannot be brushed under the carpet and stated to be a false statement. If it was a false statement, then responsible officers of the Government Rajaji Hospital at Madurai would have certainly given a rejoinder to the newspaper items.

“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”

 Compensation

Therefore, High Court held that the rat bite in Government Rajaji Hospital, Madurai was an unforeseen accident and when an accident occurs which is unforeseen, then compensation is automatically payable.

In view of no evidence being provided by the petitioner that she had to undergo a protracted treatment spreading over a number of days, Court decided to grant compensation of Rs 25,000 for the shock suffered by the petitioner being bitten by a rat in the middle of the night in hospital premises.

Liability

In Court’s opinion, the State of Tamil Nadu represented by the Principal Secretary, Health Department, Fort St George, Chennai was the ultimate official to grant compensation. [Muthulakshmi v. State of Tamil Nadu, WP (MD) No. 2283 of 2014, decided on 16-12-2021]


Advocates before the Court:

For Petitioner: Mr B. Dhanasekaran

For R1 to R-3: Mr J John Rajadurai

and R-5 to R-7: Government Advocate

For R-4: Mr R. Murali

Case BriefsHigh Courts

Madras High Court: Expressing that right to life and personal liberty enshrined in Article 21 of the Constitution of India includes the right to relax, G.R. Swaminathan, J., held that the said right can be exercised in a variety of forms.

Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.

 Few Words from the Madras High Court:

After a tiring day trekking in the forest, Lord Rama chose a resting place. He dropped his bow and arrows on the ground. When he woke up the next morning, he found that one of his arrows had fatally pierced a frog. The frog was about to breathe its last. The anguished Rama asked the frog as to why it did not raise an alarm. The innocent frog replied, “when others hurt me, I call your name “Rama Rama”-but when you are the source of trouble-who else can I call?.

When individual liberty is threatened by legislative or executive action, one turns to judiciary for relief and remedy, in the Supreme Court decision of State of Madras v. V.G. Row, AIR 1952 SC 196, Justice M. Patanjali Sastri, CJ remarked that the Supreme Court had been assigned the role of a sentinel on the qui vive as regards the fundamental rights.

Bench stated that the above-stated applies with equal force to every court and not just the constitutional courts.

In the present matter, the petitioner was running a Spa. Originally, there was no law regulating the said business and no license was required from any governmental authority, since vide Gazette Notification No. 252 obtaining of license had been made mandatory, the petitioner applied for such license.

Since no action was taken on the petitioner’s request, he filed the present petition for directing the police authority to issue “no objection certificate”.

The Bench noted that a number of orders in the past were passed wherein the authorities concerned were directed to issue “no objection certificate” if the applicant satisfied all the requirements. Hence, this Court disposed of the petition on 21-12-2021.

Though the Government counsel mentioned that another Judge of this Court issued the following directions in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015:

“1)The respondents are directed to issue appropriate orders to all the Spa and Massage centers, Therapy centers etc., across the State of Tamil Nadu to install CCTV cameras which must be functional in all circumstances.

2)Appropriate directions are to be issued to ensure that these Spa, Massage centers, Therapy centers etc., are conducting their business activities in a transparent manner and avoid secluded or closed rooms paving way for illegal activities.

3)In the event of any reasonable suspicion, information or complaint, the Police authorities are directed to initiate all appropriate actions in the manner known to law.”

Bench stated that the decision in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015 appeared to run counter to the law laid down by the 9-Judge Bench Judgment of the Supreme Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

In Court’s opinion,

The installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person’s bodily autonomy. These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter.

Further elaborating, the Court stated that, the notification issued by the Government contemplated installation of CCTV cameras only at the entry and exit points. It consciously caveats that this would be without prejudice to the individual’s privacy.

Thus, the executive while enacting subordinate legislation has been conscious of the privacy concerns of the citizens.

No right including a fundamental right can be absolute.

The Bench added that a decision to install a CCTV camera which has a bearing on a person’s privacy requires the most careful of considerations—it requires the government to apply its mind prudently and determine what manner of regulations ought to be put in place for its proper use.

Right to Relax

The K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1  verdict posits that there are three essential features of privacy – repose, sanctuary and intimate decisions.

“Repose” refers to freedom from unwarranted attention, “sanctuary” refers to the freedom of keeping things to oneself and “intimate decisions” refers to the freedom of autonomy to make personal life choices.

The right of an individual to avail means of relaxation (in this case, via spa) falls within the ambit of the right of repose and sanctuary. Therefore, any intrusion into the right to relax shall necessarily have to satisfy the test of legality, legitimate aim and proportionality.

 Morality

High Court added that the Supreme Court decision of Govind v. State of M.P., (1975) 2 SCC 148, pondered over the question of whether concerns of breach of morality can be made a ground for intruding into one’s private space.

When the Govind decision was rendered, privacy was not recognised as a fundamental right.

Post the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, privacy right can be curtailed only on grounds set out therein. Morality cannot be invoked as a mere incantation to justify such curtailment. This was also the essence of the landmark “Section 377” verdict of the Supreme Court in which it was held that in matters of one’s private affairs, constitutional morality shall trump public morality, Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Lastly, the Bench held that when the notification issued by appropriate authority is holding the field, it may not be open to the Court to supplement the same. In the said circumstances, the first respondent is directed to consider the petitioner’s representation and dispose of the same and if the first respondent issues ‘No Objection Certificate’ and the competent authority grants license in favour of the petitioner, the respondents will not interfere with the petitioner’s business so long as it is running in the manner known to law.

Therefore, the petition was disposed of in view of the above discussion. [Payel Biswas v. Commr. Of Police, 2022 SCC OnLine Mad 76, decided on 4-1-2022]


Advocates before the Court:

For Petitioner: Mr N. Edwin Jeyakumar, for Mr S.Leonard Vasanth.

For Respondents: Mr M. Sakthi Kumar, Government Advocate.

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., considered the question that the consumption of liquor in an Association, Club or in similar places, whether permissible or not?

Background

The relief sought was to forbear the respondents from harassing the petitioner-Club and its members by insisting the petitioner-Club to obtain FL2 License from the State Government for permitting its members to consume liquor brought from outside (purchased from Government approved liquor shops) within the petitioner-Club premises.

Petitioner-Club was constrained to move the present petition on account of the fact that respondents were frequently harassing the petitioner-Club by conducting unnecessary inspections.

Senior Counsel for the petitioner opined that purchasing liquor from Government approved shops and bringing the liquor bottle inside the club premises and consumption of liquor by the members could not be objected by the police authorities.

What was the admitted fact?

It was an admitted fact that the members of the petitioner-Club were consuming liquor in the Club premises, and they were not causing any nuisance or disturbance to the other members or the public in general. Such activities of in-house consumption of liquor would not fall under the offence of nuisance.

Thus, the interference by the Police Authorities is highly unwarranted and therefore, the respondents should be restrained from conducting any such unnecessary inspections in the absence of any specific complaint or otherwise.

Bye-Laws of Petitioner-Club

The bye-laws of the petitioner-club revealed that the Club permitted the sports activities and maintained reading room for the benefit its members. It did not hold any valid license to sell the liquor or to consume the same inside the Club, which was a public place. Thus, the petition was liable to be rejected.

High Court’s Opinion

Bench opined that it would be beneficial to refer to the provisions envisaged in Tamil Nadu Prohibition Act, 1937 and as per that, consuming liquor in a public place where there is no licence or permission is granted and such person is in the state of intoxication, then the Authorities Competent are empowered to prosecute those persons.

Whether consumption of liquor in an Association, Club or in similar places, whether permissible or not?

Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws.

The Bench expressed that, it is not if any Club or Association can register their Organization under the Tamil Nadu Societies Registration Act and carry on their activities in their own way or involving in unconnected activities, which are not approved under the bye-laws, which is registered under the Societies Registration Act.

Since the petitioner-club was registered under the Societies Registration Act, it was bound to confine its activities with reference to the bye-laws registered under the Registration Act. In the event of expansion of activities, then license or permission were required and even the bye-laws required amendment, which must be approved by the competent authorities under the Societies Registration Act.

High Court elaborated stating that buying, selling, consumption and possession, all are regulated under various Rules and Regulations.

“…consumption of liquor when regulated under the Rules, then the consumption must be in accordance with the provisions of the Act and Rules and it is not at the choice of the consumers of liquor.”

The Court stated that possession and consumption of liquor in a Club or Association as per the Rules may be done only by obtaining license from the Competent Authorities. In the absence of license, it is to be construed as an offence under the Prohibition Act and under the Rules in force.

Therefore, Clubs and Associations registered under the Societies Registration Act, are carrying on their activities beyond the objects set out in their respective bye-laws and there are many such complaints in the public domain. Thus, Courts are expected to exercise restraint in passing such general orders in the interest of the public.

Duty of the Executives

Scrupulous implementation of law is the duty mandated on the Executives.

The Bench expressed that, no doubt, largescale allegations against the Spa, Clubs, Associations, Recreation Clubs etc., are in the public domain and such allegations are resulting in various consequences in the Society. It creates problems in the families and also in the Society at large.

Thus, it is duty mandated on the Executives to ensure that such illegal activities are effectively controlled by initiating all appropriate actions in the manner known to law.

“…buying, selling, possession and consumption of liquor all regulated under the Rules and any violation in this Regard is an offence and the persons committing such illegalities are liable to be prosecuted under the relevant Statutes and the Rules in force.”

 High Court passed the following orders:

  • Relief stood rejected.
  • The first respondent-Director General of Police is directed to constitute trained Special Squads in each District and in Cities across the State of Tamil Nadu under the leadership of the respective Superintendents of Police and the respective Commissioners of Police for the purpose of conducting inspections in Social Clubs, Associations, Spa, Recreation Clubs, Massage Centres etc., and initiate all appropriate actions, in the event of identifying any commission of offence or illegality.
  • On initiation of any such action, against any such Organisations, Social Clubs, Associations etc., the actions initiated shall be communicated to the Competent Jurisdictional Authorities under the Tamil Nadu Societies Registration Act, along with the details of allegations and action taken, enabling those Authorities to initiate further actions under the provisions of the Tamil Nadu Societies Registration Act, 1975 and Rules or under the relevant provisions of law if the registration of Associations and Clubs are done under different Statutes.
  • DG directed to issue all necessary instructions/guidelines to the Subordinate Police Authorities to develop an effective coordination with the Registration Department and other Government Departments concerned, so as to ensure effective and efficient implementation of the Statutes for the purpose of prosecuting the offenders dealing with the illegalities simultaneously under various relevant Statutes.
  • DG directed to issue circulars to Police officials across the State of Tamil Nadu and communicate the copy of such circulars to the Registration Department and other connected Government Departments and to local bodies for initiation of appropriate actions against the licenses granted for such establishments by the local bodies as per the terms and conditions and under the provisions of law.
  • The above-said is directed to be done within a period of 4 weeks.

Matter to be posted before this Court under the caption ‘For Reporting Compliance’ on 24-1-2022. [Kancheepuram Reading Room and Tennis Club v. Director General of Police, WP No. 30803 of 2012, decided on 23-12-2021]


Advocates before the Court:

For Petitioner: Mr. T.R. Rajagopalan, Senior Counsel for Mr. P. Dinesh Kumar.

For Respondents: Mr. M. Rajendiran, Additional Government Pleader.