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Judgments
N. Henry vs (1) Vijaya Kumar; (2) State of Tamil Nadu, Represented by Public Prosecutor
[MADRAS HIGH COURT, 25 Aug 2010]
Banking & Finance - Practice & Procedure - Negotiable Instrument Act, 1881, s. 138 - Conditional stay order - Justifiability - Trial Court convicted the petitioner for the offence u/s. 138 of the Act and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.2,00,000/- - Petitioner filed an appeal and a stay application before the Sessions Court for suspending the sentence till the disposal of appeal - Sessions Court allowed the stay application on the condition that petitioner should deposit 50% of the fine amount - Hence the present petition for modifying the conditional order of Sessions Court - Whether Sessions Court order warrant any modification - Held, present litigation started as Calendar Case in 1991, however, judgment was passed only on 2010 after a lapse of 11 years, in such circumstances, the petitioner came forward with the present application to modify the condition imposed by the Sessions Court to suspend his sentence - Therefore, condition made in impugned Sessions Court order is modified and petitioner is directed to deposit a sum of Rs. 5000/- instead of 50% of fine amount - Petition disposed of.
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K. Selvaraj vs G. Venkatachalam
[MADRAS HIGH COURT, 25 Aug 2010]
Criminal - Practice & Procedure - Negotiable Instruments Act, 1881, s. 138 - Petitioner borrowed money from a third party and issued an unfilled signed promissory note and undated cheque to the said party - Petitioner alleged that he had repaid the amount, however, he received a summon from the Trial Court as accused in a case filed by the respondent u/s. 138 of the Act - Hence the present petition seeking to quash the criminal proceedings against the petitioner - Petitioner contended that there was no legal and subsisting liability between the petitioner and the respondent - Whether impugned proceedings against the petitioner liable to be quashed - Held, facts of whether there is subsisting liability, whether the petitioner has borrowed the money from the respondent, are to be decided only after letting oral and documentary evidence, since it is only a question of fact - No reason was found for quashing the complaint on the file of Trial Court, however, direction issued to the Trial Court to expedite the trial and disposed off the case within stipulated time - Petition dismissed.
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Mohammed vs (1) Anish Jeenath Sabura; (2) M. Hareen; (3) M. Mohaideen Asif Ahamed
[MADRAS HIGH COURT, 24 Aug 2010]
Family & Personal - Practice & Procedure - Dowry Prohibition Act, 1961, s. 4 - Indian Penal Code, 1860, s. 498(A) - Order for maintenance - Uncalled for remarks - Expunging of - Respondent/wife filed a complaint against petitioner/husband whereby a case was registered against petitioner u/s. 498(A) IPC and s. 4 of the 1961 Act - Respondent, in the meantime, filed a Miscellaneous Complaint in the Trial Court claiming maintenance - Trial Court ordered maintenance, however, made a remark in the order that the petitioner had demanded Rs. 1 lakh as dowry from the respondent at the time of marriage - Petitioner, hence, filed the present petition to expunge the said remark in the order of maintenance - Held, while deciding the fact that whether the wife was entitled to the maintenance, the Trial Court had considered the oral and documentary evidence and expressed its views that whether the defence raised by the petitioner or respondent was acceptable or not - In such circumstances, Trial Court's views were not unwarranted or uncalled remarks or comments to be expunged - No merit in the petition - Petition dismissed.
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Noel Media & Advertising Private Limited, Represented by its Managing Director, A. Kanagaraj vs Express Infrastructure Private Limited, Represented by its Managing Director
[MADRAS HIGH COURT, 24 Aug 2010]
Arbitration & ADR - Contract & Commercial - Arbitration and Conciliation Act, 1996, s.9 - Specific Relief Act, 1963, ss. 14(1), 41 - Arbitration proceedings - Protection of subject matter - Entitlement - Appellant/Company entered into an agreement with respondent/Company wherein appellant granted license to respondent for using its advertising space on revenue sharing basis - Appellant and respondent, subsequently, mutually identified another site for advertisement - Appellant sought to amend the earlier contract in order to incorporate the particulars of subsequent advertising space - Authorised representative of respondent send a letter to appellant stating that the documents signed by him in the earlier contract would be null and void - Appellant invoked the arbitration clause and filed an application u/s. 9 of the Act before the HC seeking for interim injunction restraining the respondent from doing any act prejudicial to the interest of the appellant/Company and not to remove the advertisements erected in the advertising space - Single Judge dismissed appellant's application on the ground that the appellant was not entitled to the relief u/s. 9 of the Act since such injunction in the form of specific relief could not be granted by the Court as per ss. 14(1) and 41 of the 1963 Act - Whether relief sought by the appellant was in the form of specific relief - Held, qualification for invoking the jurisdiction of HC u/s. 9, is that the person who is invoking it must be a party to an arbitration agreement - HC u/s. 9 of the Act is only formulating interim measures so as to protect the right under adjudication before the Arbitral Tribunal from being frustrated - Hence the conclusion of the Single Judge that the order of injunction sought for u/s. 9 of the Act would amount to granting of specific relief and such injunction cannot be granted as per ss. 14(1) and 41(e) of the 1963 Act, is erroneous and cannot be sustained - Further, since there is a valid arbitration agreement, HC has jurisdiction to pass order u/s. 9 of the Act giving interim protection - In view of the hasty act of the respondent in dismantling the advertisement materials in the advertisement space covered by the earlier contract, status quo ante is restored with respect to the said subject matter - Direction issued to the appellant to take effective steps to commence the arbitral proceedings - Appeal allowed.
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M. Anwar vs (1) S. Clitus; (2) A. Ignatious Xavier
[MADRAS HIGH COURT, 23 Aug 2010]
Criminal - Practice & Procedure - Code of Criminal Procedure, 1973, ss. 91, 397, 401, 482 - Criminal Original Petition - Conversion into Criminal Revision Petition - Respondent filed a suit for specific performance against the petitioner on the strength of some receipts alleged to be prepared by the petitioner, which was pending before the District Court - Petitioner, in the meantime, filed a criminal complaint against the respondent for the offence punishable offence u/ss. 467, 471 r/w ss.109, 211 r/w ss. 109, 120(b) IPC which was taken on file by the Trial Court - Petitioner filed certified copies of the alleged receipts adduced by the respondents before the District Court, however, he filed a petition u/s. 91 of CrPC to call for the original receipts from the file of District Court - Trial Court dismissed the petition - Petitioner, hence, filed the present Criminal Original Petition u/s. 482 of CrPC challenging the Trial Court order - Whether present petition is maintainable - Held, since there is a provision of ss. 397 and 401 CrPC for revision, the petitioner is not entitled to file the present petition by invoking s. 482 of CrPC - If the Court has come to the conclusion that only revision is maintainable, the court has every right to convert the criminal original petition into criminal revision and ordered to place the matter before the concerned Judge - Further, if HC converts the criminal original petition into criminal revision petition, no prejudice would be caused to both the parties - Therefore, direction issued to the HC Registry to number the present Criminal Original Petition as Criminal Revision Petition and post the matter before the concerned Judge - Order accordingly.
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P. Shanmugavel vs K. S. Kumar
[MADRAS HIGH COURT, 23 Aug 2010]
Practice & Procedure - Transfer Petition - Order contrary to relief prayed - Justifiability - Petitioner filed a Transfer Petition before the Principal Sessions Court seeking to transfer the pending criminal case from one Magistrate Court to another Magistrate Court and to direct a joint trial with a related case - Principal Sessions Court, however, transferred the case reciprocally - Hence the present petition seeking to set aside the Principal Sessions Court order - Whether impugned order of transfer is valid - Held, petitioner filed a proof affidavit in the pending matter and only then did he come forward with the application, which was an afterthought - Principal Sessions Court ordered the transfer reciprocally in order to meet the ends of justice and avoid multiplicity of proceedings, even though respondent had not filed any transfer petition - Petitioner came forward with the present application only to delay the pending matter, therefore, impugned order is confirmed - Petition dismissed.
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G. Muniasamy vs (1) Collector, Ramanathapuram; (2) Special Tahsildar, Department of Adi Dravidar Welfare; (3) K. Ahamed
[MADRAS HIGH COURT, 12 Aug 2010]
Land & Property - Practice & Procedure - Tamil Nadu Acquisition of Land for Adi-Dravidar Welfare Scheme Act, 1978, ss. 4(1), 4(2) - Tamil Nadu Acquisition of Land for Adi-Dravidar Welfare Schemes Rules, 1979, r. 5 - Land acquisition - Subsequent purchaser - Locus standi - Petitioner allegedly purchased the land in question from predecessor-in-title - Disputed land was acquired by 1st respondent for the provision of house sites - Respondent issued notice u/s. 4(2) of the Act to 3rd respondent - 3rd respondent filed his letter of objection - Respondent issued declaration u/s. 4(1) of the Act - Petitioner contended that 3rd respondent was not the owner of the disputed land and serving notice to 3rd respondent would amount to violation of r. 5(1) of the Rules - (A) Whether petitioner has locus standi to question the notice u/s. 4(2) of the Act - Held, petitioner was not the registered owner of the land on the date when the notice u/s. 4(2) was issued - After following the procedure contemplated under the Rules, the notification u/s. 4(1) of the Act came to be issued and also published in the District Gazette - However, petitioner purchased the land in question much after the impugned notification - Therefore, petitioner does not have any locus-standi to question the acquisition proceedings being a subsequent purchaser - (B) Whether respondent's failure to serve the notice to petitioner or his vendor would vitiate the acquisition proceedings - Held, revenue records did not stand in the name of the petitioner's vendor, but stood in the name of 3rd respondent - Therefore, respondent issued notice u/s. 4(2) to 3rd respondent and hence, there is no violation of r. 5(1) of the Rules - Since the 3rd respondent who was the registered holder was in receipt of the notice issued under the Act and also filed objection to the acquisition, plea raised by the petitioner that no notice was served to him cannot be allowed - Petition dismissed.
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P. Kalimuthu vs Personnel Assistant to Collector (General)
[MADRAS HIGH COURT, 11 Aug 2010]
(A) Service - Dismissal from service - Legality - Petitioner was appointed as Night Watchman on compassionate ground - Petitioner was promoted to the post of Officer Assistant - Petitioner was issued a charge memo alleging that he had tampered with the entry of his qualification and date of birth in Service Register in order to get promotion to the post of Office Assistant - Enquiry Officer found that charges against the petitioner were proved - Disciplinary Authority dismissed petitioner from service - Petitioner contended that he had no connection with the alteration of his educational qualification as well as the date of birth in Service Register since such records were not under his custody - Held, petitioner made his representation seeking promotion, that too without possessing 5 years of service experience to the post of Office Assistant, indicated that the petitioner, by collusion with someone in the office, had altered his educational qualification as well as his date of birth - Had the petitioner not known about the alteration of his educational qualification and date of birth in the Service Register, he would not have given the representation seeking promotion to the post of Office Assistant - Action of the petitioner in giving the representation for promotion to the post of Office Assistant showed that the petitioner had knowledge about the alteration - Therefore, contention of the petitioner that he was not connected with the alteration in the Service Register, cannot be accepted - Petition dismissed.(B) Service - Alteration of Service Register - Delay in initiating disciplinary proceedings - Dismissal from service - Justifiability - Petitioner/Night Watchman allegedly altered the Service Register for getting promotion to the post of Office Assistant - Department initiated proceedings after 15 years from the date of entry in the service - Whether delay in initiation of departmental proceedings would vitiate the enquiry - Held, in view of the serious allegation levelled against the petitioner, delay in initiating the disciplinary proceedings would not vitiate the proceedings - If proceedings were quashed on the ground of delay, Court would be committing serious injustice, as the petitioner, who had committed an act of wrong would further continuing in the post, which would be against the interest of justice - Therefore, it is always open to the department to take action against the petitioner at any time during the course of his employment, if acts of omission and commission comes to its notice - Petition dismissed.
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(1) M. N. Katharmytheen; (2) K. Masthan vs State, represented by Food Inspector, Tirunelveli Corporation
[MADRAS HIGH COURT, 11 Aug 2010]
Health & Drugs - Criminal - Practice & Procedure - Prevention of Food Adulteration Act 1954, ss. 13(2), 16(1)(a)(i), 7(ii), 2(ix) (k) - Prevention of Food Adulteration Rules, 1955, rr. 32(i), 42(zzz)(17) - Misbranding of product - Delay in issuing notice u/s. 13(2) - Criminal proceedings - Sustainability - Respondent inspected 2nd petitioner's shop and took the sample of product in question manufactured by the 1st petitioner - Respondent send the samples to Public Analyst - Public Analyst reported that the sample was misbranded which was in violation of rr. 32(i), 42(zzz)(17) of the Rules - Respondent registered a complaint against petitioners for the offence punishable u/s. 16(1)(a)(i) r/w ss. 7(ii), 2(ix) (k) - Trial Court took cognizance of the offence - Hence the present petition by the petitioners for quashing the said complaint - Held, respondent issued notice u/s. 13(2) to petitioners stating that if it was so desired, petitioners may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by the Central Food Laboratory, however, such notice was sent to petitioner nearly after two years from the date of receipt of analysis report from the Public Analyst, therefore, petitioner's choice to send another portion of the product to the Public Analyst was curtailed - Further, Public Analyst simply stated in the report that the sample was misbranded since it was not labelled in accordance with the requirements of rr. 32(i), 42(zzz)(17) of the Rules but he had not mentioned as to how and what manner the sample was misbranded - Public Analyst must make specific averment that the customers being mislead on account of misbranding and in the absence of any such clear averments, it cannot be said that the customers were mislead or misdirected - Since there was a delay in issuing s. 13(2) notice and the details of misbranding was not mentioned in the report, criminal complaint against the petitioner was not sustained - Criminal proceedings against the petitioner in the file of the Trial Court is quashed - Petition allowed.
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V. Balasubramanian vs (1) Superintendent of Police; (2) Deputy Inspector General of Police
[MADRAS HIGH COURT, 11 Aug 2010]
Service - Practice & Procedure - Delinquency - Extent of proof - Petitioner/Police Constable was issued with a charge memo for misconduct - Enquiry Officer found that the charges against the petitioner were proved - Disciplinary Authority dismissed the petitioner from service - (A) Whether petitioner entitled for reinstatement on the basis of benefit of doubt - Held, petitioner cannot be allowed to have the doctrine of benefit of doubt since the present case is not a criminal case but domestic enquiry - In the domestic enquiry, if the department is able to establish the preponderance of probabilities, that is sufficient proof for imposing the punishment on the delinquent/petitioner considering the gravity of delinquency - Delinquency of petitioner was clearly established on the basis of the evidence, both oral and documentary adduced by department witnesses - (B) Whether cross-examination of hostile witness by Enquiry Officer would vitiate the enquiry proceedings - Held, petitioner did not contend that the Enquiry Officer had cross-examined each and every witness and was therefore, biased - Although enquiry officer cross-examined the hostile witness, he did not taken into account the evidence of hostile witness -Therefore, the petitioner was not prejudiced since it was not even shown that the Enquiry Officer had cross-examined every witness - Therefore, it cannot be said that the Enquiry Officer has acted as a prosecutor as well as a Judge and exceeded his authority - No infirmity in the enquiry proceedings conducted by the enquiry officer - Petition dismissed.
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S. Alagammal vs Mariammal
[MADRAS HIGH COURT, 11 Aug 2010]
Civil Procedure - Practice & Procedure - Limitation Act, 1963, s. 5 - Ex-parte decree - Dismissal of delay condonation petition - Revision before HC - Sustainability - Plaintiff filed a suit against defendant on the basis of a mortgaged deed - Since the defendants were absent, Trial Court passed an ex-parte decree - 3rd defendant/petitioner filed a petition for setting aside the ex-parte decree along with a delay condonation petition - Trial Court dismissed petitions - Petitioner filed a revision before the HC - Whether revision is sustainable - Held, if a revision is filed either under the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973, the same should be filed within 90 days from the date of order or sentence as the case may be - Present civil revision petition was filed beyond the period of prescribed limitation without any delay condonation petition with the active connivance of the concerned staff of the Court below as well as Registry of the HC - Further, petitioner failed to prove the reasons given in the petition - Revision dismissed.
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Commissioner of Income Tax vs Sakthi Sugars Limited
[MADRAS HIGH COURT, 10 Aug 2010]
Income Tax & Direct Taxes - Income Tax Act, 1961, ss. 36 and 37 - A.Y. 1992-93 - Expenditure relating to expansion of business unit - Admissibility - Respondent/Assessee filed revised return after filing the original return and claimed further revenue expenses relating to the expansion of its sugar units - Assessing Authority held that the assessee's business and installed capacity had gone up and the business expansion was carried out in a different State and that the assessee cannot claim the expenses incurred on the installation of new factories as revenue expenditure and hence the same was treated as capital expenditure - Respondent filed appeal before Commissioner of Income Tax (CIT) - CIT allowed appeal and held that expenditures in question were revenue expenditures - Revenue filed appeal before the Tribunal - Tribunal confirmed the CIT findings - Hence the present appeal by the Revenue - Whether expenditures in question were allowable as provided u/ss. 36 and 37 of the Act - Held, respondent's statement of expenditure disclosed that all expenditures therein were incurred in the relevant years for the purpose of manufacture of sugar in the respective factories with a view to earn profits and therefore they were nothing but revenue expenditure only - Expenditure incurred by way of salaries, wages, bonus, provident fund contribution, workmen welfare expenses, power, fuel and water, manufacturing expenses, rent for office building etc., were all expenses which were incurred for the purpose of running of the business and it cannot be held to be by way of investment - Therefore, said expenditures were allowable deduction as provided u/ss. 36(1)(i) & (iii) and 37(1) of the Act and hence CIT as well as the Tribunal were fully justified in accepting the case of the assessee in respect of said expenses as revenue expenditure and no interference called for - Question of law is therefore answered in favour of the assessee and against the Revenue - Appeal dismissed.
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Saravanan vs S. N. Sundaram
[MADRAS HIGH COURT, 10 Aug 2010]
Banking & Finance - Criminal - Practice & Procedure - Negotiable Instrument Act, 1881, s. 138 - Error in statutory notice - Proceedings u/s. 138 of the Act - Sustainability - Petitioner borrowed Rs. 1,50,000/- from respondent and issued a cheque for the same - Petitioner failed to repay the amount, hence, respondent submitted the cheque - Cheque was returned as 'funds insufficient' - Respondent issued statutory notice to petitioner demanding the amount of Rs.15,00,000/- instead of Rs.1,50,000/-, however, respondent, subsequently, issued a re-joinder notice stating that there was typographical mistake in mentioning the amount - Respondent filed a complaint against the petitioner u/s. 138 of the Act and Trial Court took cognizance of the offence - Hence the present petition by the petitioner for quashing the proceedings on the file of Trial Court - Whether the mentioning of Rs.15,00,000/- in the statutory notice instead of Rs.1,50,000/- will vitiate the entire proceedings even though a rejoinder notice has been issued by the respondent stating that the same is a typographical error - Held, petitioner has sent a reply only after the receipt of rejoinder notice from the respondent - Even though in the statutory notice, the respondent has mentioned the amount wrongly, that has been properly explained in the rejoinder notice - Further, respondent filed the complaint before the Trial Court within stipulated time u/s. 138 of the Act - No reason to quash the proceedings against the petitioner - Petition dismissed.
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Union of India, Represented by the Regional Director (Food), Department of Public Distribution vs Saraswathi Viswasam
[MADRAS HIGH COURT, 09 Aug 2010]
Service - Central Civil Services (Pension) Rules, 1972, r. 55-A(ii) - Family pension - Dearness relief - Entitlement - Respondent and her husband were in service with the appellant department - Respondent's husband expired while in service - Respondent was receiving family pension and she sought dearness relief along with the pension - Respondent's appointment was not on compassionate ground - Appellant rejected respondent's request on the ground that r. 55-A(ii) of the Rules did not contemplate dearness relief for a pensioner who was employed or re-employed - Respondent challenged appellant's rejection order before the HC - Single Judge allowed respondent's petition holding that respondent was already in service, therefore, r. 55-A(ii) was not applicable and hence respondent was entitled to dearness relief - Whether respondent entitled for dearness relief on family pension - Held, refusal of dearness relief on family pension is applicable only to such persons, who are employed on compassionate ground - Respondent was not in re-employment under the appellant and was already in the employment getting her salary and also the family pension for the death of her husband - Therefore, the respondent, who was already employed and whose family pension was not suspended for any reason, is entitled for dearness relief on the family pension - Appeal dismissed.
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S. Singaravelu vs (1) General Manager, Southern Railways; (2) Presiding Officer, Central Government Industrial Tribunal cum Labour Court
[MADRAS HIGH COURT, 09 Aug 2010]
(A) Service - Railway Servants (Discipline & Appeal) Rules, 1968, r. 13(1)(A) - Enquiry proceedings - Validity - Appellant/Reservation Clerk allegedly misappropriated amount by falsifying the records - Enquiry Officer found that the charges were proved - Respondent/Authority send show cause notice to appellant for imposing punishment - Appellant filed reply, however, Disciplinary Authority imposed the punishment of compulsory retirement - Appellant filed appeal - Appellate Authority dismissed appellant's appeal - Appellant challenged respondent's order before Industrial Tribunal - Industrial Tribunal confirmed respondent's order - In appeal Single Judge dismissed appellant's writ petition - Appellant contended that he was denied the opportunity of legal assistance - (a) Whether there was any violation of r. 13(1)(A) of the Rules if the appellant was denied the legal assistance in enquiry proceedings - Held, enquiry proceedings would show that witnesses were cross examined by the appellant - Presenting Officer was not a legal practitioner and was only an officer of police - Therefore, r. 13(1)(A) of the Rules which permitted the delinquent to engage a legal practitioner was not attracted in the subject case - (b) Whether the enquiry conducted by the respondent was fair - Held, procedure adopted by the Enquiry Officer could by no stretch of imagination be treated as an unfair one - Appellant was given sufficient opportunity to cross examine the witnesses and to prove his defence - Though the appellant cross examined the witnesses at length, he evaded the witness box - Enquiry Officer scanned the available materials in the light of the oral as well as documentary evidence and arrived at a categorical conclusion that the charges framed against the appellant were proved - Therefore, enquiry in question was fair and no merit in the present appeal - Appeal dismissed.(B) Service - Constitution - Constitution of India, 1950, art. 226 - Misconduct by delinquent - Findings of Enquiry Officer - Interference by HC - Extent - Held, report of the Enquiry Officer gave a clear picture about the misconduct committed by the appellant - Matter was once again examined by the Industrial Tribunal and the Tribunal being the final Court on facts, examined the issue in the light of the pleadings and documents and arrived at a definite conclusion that the appellant was guilty - Further, issue was once again considered by the Single Judge and he scanned the evidence adduced before the Enquiry Officer and opined that the materials were sufficient enough to take further action against the appellant - Since HC's jurisdiction u/art. 226 is limited, HC is only concerned about the decision making process rather than on the merits of the proceedings before the departmental authorities - Therefore, no interference on findings of the Enquiry Officer - Appeal dismissed.
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S. Manivannan vs (1) District Collector; (2) Regional Manager, TASMAC; (3) District Manager, TASMAC
[MADRAS HIGH COURT, 09 Aug 2010]
Trade - Socio-Economic - Liquor business near temples - Justifiability - Respondent/Authority opened a wine shop which was opposite a District Court and within a distance of 50 meters of four temples - Petitioner contended that location of the wine shop in the present place was causing great hardships to the petitioner, worshippers of four temples, school going children passing through the way - Petitioner filed the present writ petition for restraining the respondents from carrying on liquor business through the wine shop from the present location - Respondent contended that the wine shop was located in commercial area and shifting would cause loss of revenue to the Government - Held, since four temples and District Court existed in the nearby area of wine shop in question, respondents were not justified in contending that the liquor shop cannot be shifted to other place - Several liquor shops were ordered to be shifted or the same were shifted by the authorities themselves on HC orders in similar petitions - Respondents are bound to take a pragmatic view in similar kind of matters depending on the ground realities though there may not be any statutory bar prohibiting the location of liquor shop in a given area - Therefore, direction issued to respondents to shift the liquor shop situated at the location in question to any other unobjectionable place - Petition allowed.
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G. Arunagirinathan vs (1) District Revenue Officer, Perambalur; (2) Revenue Divisional Officer, Perambalur; (3) Tahsildar, Perambalur; (4) S. Rajamathi
[MADRAS HIGH COURT, 06 Aug 2010]
Land & Property - Assignment of patta due to error in Revenue records - Entitlement - Land in question was assigned to the predecessor-in-interest after sub-division and after his death, land was assigned to his wife - After the death of wife of predecessor-in-interest, petitioner/legal heir sought to transfer the patta in his favour, however, it was found that the said land was sub-divided and new patta was transferred in the name of 4th respondent - Petitioner made a representation to 3rd respondent/Tahsildar - 3rd respondent held that there was an error in Up Dating Registry (UDR) - Consequently, 3rd respondent transferred the patta in the name of wife of predecessor-in-interest as stood in her name before the UDR - 4th respondent filed an appeal before the 2nd respondent/Revenue Divisional Officer - 4th respondent contended that he was allotted a share by the wife of predecessor-in-interest by way of partition - 2nd respondent allowed the appeal , subsequently, 1st respondent/District Revenue Officer also confirmed 2nd respondent's order - Whether order of 2nd respondent was sustainable - Held, patta was wrongly transferred to 4th respondent due to error in UDR - Ancestors of 4th respondent did not purchase the land in question by any sale deed from predecessor-in interest - Nothing on record to show that the wife of predecessor-in-interest was heard while a change was made in UDR to the detriment to the petitioner's family - Patta was transferred in the name of 4th respondent due to mistake and hence that mistake ought to have been rectified - 3rd respondent's correctly corrected the error in UDR and restored the patta in the name of wife of predecessor, hence, 3rd respondent's order is perfectly justified - Petition allowed.
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R. Thiagarajan vs (1) Union of India, Represented by its Secretary, Ministry of Home Affairs, New Delhi; (2) Director General Central Industrial Security Force CGO Complex, New Delhi; (3) Deputy Inspector General (Personnel) Central Industrial Security Force, New Delhi; (4) Deputy Inspector General CISF, Ministry of Home Affairs; (5) Senior Commandant, Central Industrial Security Force
[MADRAS HIGH COURT, 06 Aug 2010]
Service - Defence & Security Forces - Recruitment notification - Amendment - Failure to incorporate into original notification - Respondent issued notification inviting applications from eligible departmental candidates for filling up 576 vacancies of Sub-Inspector(Executive) in Central Industrial Security Force (CISF) through Limited Department Competitive Examination - Petitioner/Constable in CISF applied for the vacancy - 2nd respondent/Director General amended the original notification by introducing cl. 10(h) to eligibility criteria wherein it was stated that the candidates must have good ACRs for last four years and unblemished record till issue of offer of appointment - Respondent, subsequently, rejected petitioner's application on the ground that petitioner was awarded the penalty - Whether respondent's order arbitrary - Held, petitioner's punishment was imposed prior to the four year period and hence not covered u/cl. 10(h) of the amended notification - Although 2nd respondent made the amendment, the said amendment criteria was not incorporated into the original notification - Further, competency of the 2nd respondent to bring in such amendment was not satisfactorily explained before the Court - Amended eligibility criteria clause having not been found in the original notification and the contents of the same having not been intimated to the CISF personnel in the manner as prescribed in the original notification, therefore, amended clause cannot form the basis for rejecting the application filed by the petitioner in the prescribed form after satisfying all the formalities - Impugned order of rejection of petitioner's application cannot be sustained on the basis of the said amendment and hence set aside - Petition allowed.
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S. Santhana Manikandan vs (1) Government of Tamil Nadu, Represented by the Chief Secretary; (2) Tamil Nadu Government Public Service Commission, Represented by its Chairman
[MADRAS HIGH COURT, 05 Aug 2010]
Service - Selection - Failure to produce Physically Handicapped Certificate - 2nd respondent/State Public Service Commission invited application for the recruitment of Assistants in Revenue Department - Petitioner/visually challenged candidate applied for the vacancy - Petitioner succeeded in written and oral examinations - Petitioner produced Disability Certificate from State Medical College Hospital as per the requirement of item (xi) of the memorandum of interview, however, respondent rejected said Disability Certificate and send a letter to petitioner to produce a proper Physically Handicapped Certificate - Whether Disability Certificate produced by the petitioner would be sufficient for the requirement mentioned under item (xi) of the memorandum of interview - Held, item (xi) of the memorandum of interview requires a certificate to the effect that the physical handicap would not render the candidate incapable of efficiently discharging his official duties, however, 2nd respondent did not give any format for the disability certificate - Disability Certificate, produced by the petitioner, was issued by the competent Medical Board - In the absence of the 2nd respondent prescribing any format, the 2nd respondent was not justified in finding fault with the disability certificate issued by the competent Medical Board - Impugned order was contrary to the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995, particularly, when the certificate was issued by the competent Medical Board as required by the 2nd respondent - Therefore, 2nd respondent was not justified in withholding the result of the petitioner by the impugned order - Direction issued to the 2nd respondent to appoint the petitioner in any one of the vacancies - Petition allowed.
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K. Pounammal vs State, Represented by Inspector of Police
[MADRAS HIGH COURT, 04 Aug 2010]
Criminal - Socio-Economic - Prevention of Corruption Act, 1988, ss. 7, 13(2) r/w s. 13(1) - Bribery - Conviction - Sustainability - Appellant/Excise Inspector allegedly received bribe from PW2 for issuance of registration certificate to PW2's industry - Trial Court convicted the appellant u/ss. 7, 13(2) r/w s. 13(1) of the Act - Whether the charges framed against the appellant have been proved by the prosecution beyond reasonable doubt - Held, PW3 was an uninterested witness against whom no motive was attributed - Evidence of PW3 cannot be brushed aside since he is a responsible officer and whose evidence was not motivated but it was natural and convincing - PW3 corroborated all circumstances of the prosecution case and evidence of PW2 portrayed the whole incident - No circumstances under which lapse of the prosecution could be inferred - Abundant materials showed that there was demand and acceptance of bribe money by the appellant from PW2 and the circumstances as projected by the prosecution have been proved to be true -charges framed against the appellant have been established beyond all reasonable doubt - Conviction and sentence by the Trial Court confirmed - Appeal dismissed.
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Sridevi Venkataswamy vs (1) Chief Commissioner of Income Tax; (2) Deputy Commissioner of Income Tax; (3) Assistant Commissioner of Income Tax
[MADRAS HIGH COURT, 04 Aug 2010]
Income Tax & Direct Taxes - Income Tax Act, 1961, ss. 234A, 234B, 234C - Delay in filing returns - Charging of interest - Entitlement - Petitioner paid advance tax for her income, however, delayed in filing the returns - Assessing Officer (AO) regularised the returns, however, charged interest u/ss. 234A, 234B and 234C of the Act - Petitioner sought waiver of interest - 1st respondent/Chief Commissioner rejected petitioner's request - Whether petitioner is entitled to the waiver of interest - Held, DB of HC in V. Akilandeswari v. Chief Commissioner of Income-tax, 2009 INDLAW MAD 1481, held that if the petitioner had paid the tax voluntarily and had also pleaded a good and sufficient reason for the non-payment of tax on time, levying interest u/ss. 234A, 234B and 234C of the Act was unreasonable - Judgment of V. Akilandeswari's case was applicable to petitioner's case with equal force, however, if any amount is paid by the petitioner pursuant to the impugned order, she is not entitled to seek refund of the same - Petitions allowed.
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Thimmai Venkatachalam vs R. D. Sigamani
[MADRAS HIGH COURT, 03 Aug 2010]
Civil Procedure - Practice & Procedure - Code of Civil Procedure, 1908, O. 6 r. 17 - Amendment of plaint - Entitlement - Plaintiff alleged that he had acquired the title of suit property from the predecessor-in-interest through a registered release deed - Defendant denied the title of plaintiff - Plaintiff filed a suit for perpetual injunction against defendant - Plaintiff claimed exclusive title to the suit property by virtue of predecessor-in-interest's alleged relinquishment - Trial Court dismissed the suit - Plaintiff filed an appeal, however, during the pendency of appeal, plaintiff filed an application to amend the original plaint - By the amendment, plaintiff wanted to state that he had perfected the title to the suit property by adverse possession - Trial Court dismissed plaintiff's amendment application - Whether plaintiff entitled to amend the plaint - Held, by way of amendment, source of title to suit property cannot be allowed to change - Plaintiff attempted to change the source of title to the suit property by way of amendment - Plaintiff, in his original plaint, derived his exclusive title to the suit property by virtue of alleged relinquishment of title by predecessor-in- interest, however, in the present amendment petition, plaintiff attempted to change source of title by way of introducing the plea of adverse possession - Amendment petition cannot be sustained - Petition dismissed.
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(1) Rani; (2) Jersha (minor); (3) Jerine (minor) vs (1) State of Tamil Nadu, Represented by its Secretary, Department of Electricity; (2) Tamil Nadu Electricity Board, represented by its Chairman; (3) Superintending Engineer, Tamil Nadu Electricity Board; (4) Junior Engineer, Tamil Nadu Electricity Board; (5) Union of India, represented by its Secretary, Ministry of Communications, New Delhi; (6) Bharat Sanchar Nigam Limited, represented by its Chairman and Managing Director, New Delhi; (7) Chief General Manager Telecommunications, Tamil Nadu Telecom Circle; (8) Sub-Division Officer, Bharat Sachar Nigam Limited
[MADRAS HIGH COURT, 03 Aug 2010]
Tort - Negligence of State - Liability for payment of compensation - Deceased died due to electrocution from electric line belonging to and maintained and controlled by the respondent/Electricity Board - Petitioner/legal heirs of the deceased claimed compensation - Respondents did not pay any compensation, hence the present petition - Respondent contended that a lorry with heavy load and abnormal height had dragged the service connection which resulted in the electrocution of the deceased, therefore, respondent was not liable to pay compensation - Held, even assuming that a lorry with heavy load and abnormal height had dragged the service connection, the respondent/Electricity Board was duty bound to rectify the defect immediately and avoid any damage being done to any person or to his belongings, however, no such act was done by the respondent/Electricity Board which resulted in the death of deceased - Negligence was purely on the part of the respondent Nos. 2 to 4 - If the respondent/Electricity Board had taken necessary steps to stop the supply in power line, they could have very well averted the accident - Inaction on the part of respondent Nos. 2 to 4 had cost the loss of valuable life of deceased and death had caused irreparable loss to his family - Death of deceased was only because of the negligence of the respondent Nos. 2 to 4, therefore the respondent Nos. 2 to 4 are liable to pay the compensation to the petitioners - Direction issued to respondent Nos. 2 to 4 to pay compensation with interest - Petition disposed of.
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Association of Management of Private Colleges, Represented by its President, Dr. M. Aruchami vs Government of Tamil Nadu, Represented by its Secretary, Rural Development and Panchayat Raj Department
[MADRAS HIGH COURT, 30 Jul 2010]
Education - Municipalities & Local Governments - Tamil Nadu Private Colleges (Regulation) Act, 1976 - Government aided private colleges - Exemption from payment of house tax - Entitlement - Respondent/State, by vide G.O.(Ms) No.38 Rural Development and Panchayat Raj dated 5-5-2008, levied house tax on government aided private educational institutions situated in village panchayat - Petitioner/Association of the private colleges challenged the vires of G.O.(Ms) No. 38 - Held, members of the petitioner are not situated in any village panchayat governed by the Tamil Nadu Panchayat Act, 1994 and were not subjected to such house tax - Member colleges are situated either in the areas administered by Municipal Corporations or areas covered by various Municipalities coming under the Tamil Nadu District Municipalities Act, 1920 - In the absence of details of any of its members situated in a village panchayat area and further subjected to demand made by the respective village panchayats regarding the house tax based on a specific finding that they were running self-financing courses and that the earlier exemption granted to them will not apply, the Court would not go into the vires of the said amendment on an academic discourse on a tax law - Further, present amendment excludes the exemptions granted to an aided institutions starting self financing courses in the same premises, thereby earning revenue - State is not obliged to exempt such institution on the lines which was followed before the impugned amendment - In the matter of exemption of a taxing statute, it is for the State to make proper classification and it cannot be said such classifications are hit by art. 14 of the Constitution of India either on the ground of it being a class legislation or that such a tax would amount to arbitrary exercise of power - Therefore, present writ petition cannot be entertained on the ground of maintainability as well as on the grounds of merits - Petition dismissed.
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N. Satheesh Kumar vs (1) Director, Vigilance and Anti Corruption Department; (2) Joint Director, Vigilance and Anti Corruption Department; (3) Superintendent of Police (Central Range), Vigilance and Anti Corruption Department
[MADRAS HIGH COURT, 30 Jul 2010]
Service - Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, r. 23 - Unauthorised absence - Dismissal from service - Legality - Petitioner applied for medical leave for 15 days on the ground of ill-health - Petitioner produced fitness certificate after the recovery, however, his health deteriorated again and he sought further leave for 10 days and which was allegedly permitted by the respondent/Department - 3rd respondent framed four charges against the petitioner and Enquiry Officer held that all the charges against the petitioner were proved - 3rd respondent accepted the findings of the Enquiry Officer and passed an order dismissing the petitioner - Petitioner filed appeal before the 2nd respondent/Appellate Authority which was rejected - Petitioner filed further appeal before the 1st respondent which was also rejected - Whether impugned order of dismissal is legally sustainable - Held, action of the petitioner in not reporting before the Medical Board when the department directed him to do so has caused the issuance of the charge memo and imposition of punishment - However, appellate authority/2nd respondent having not considered the appeal as contemplated u/r. 23 of the Rules, therefore, the order passed by the appellate authority/2nd respondent and the further order passed by the 1st respondent are set aside - Hence, matter is remitted back to the 2nd respondent to consider the appeal filed by the petitioner strictly in accordance with the r. 23 of the Rules, including the aspect of proportionality of the punishment pleaded by the petitioner and pass fresh orders - Petition allowed.
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