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Madras High Court says there is no ground to interfere in the judgment of the trial Court in convicting an accused.

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Title: V. Radhakrishnan. Vs.  The State.

Decided On: September 19, 2023.

Crl.A.No.627 of 2016.

Coram: Hon’ble Dr. Justice G. Jayachandran.

Facts:

The accused while serving as VAO of Kottathupatty Village, demand of illegal gratification of Rs.2000/- in two instalments of Rs.1000/- by the accused for name transfer in the Patta was lodged on 24.11.2003 at 9.30 a.m. After registration of the case, trap was laid. At about 15.15 hours the accused demanded and accepted Rs.1000/- from the defacto complainant. The said transaction was witnessed by the shadow witness Paramasivam.The phenolphthalein smeared currency of one 500 Rupees notes and five hundred rupees notes were recovered from the accused which was kept in the left outer shirt pocket. The trial Court framed charges under Section 7 and 13(2) r/w 13(1)(d) of P.C Act. The trial Court accepting the case of the defacto complainant regarding the demand and acceptance of Rs.1000/- as bribe by the accused on 24.11.2003, convicted and sentenced him to undergo 1 year R.I and to pay fine of Rs.5000/-, in default to undergo 6 months S.I for the offence under Section 7 of P.C Act and to undergo 2 years R.I and to pay fine of Rs.10,000/-, in default to undergo S.I for 6 months. This Criminal Appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973, to set aside the order passed by the Special Judge, Special Court for trial under the Prevention of Corruption Act.

Legal Analysis and Decision:

It is a case of demand and acceptance of illegal gratification. The bribe amount of Rs.1,000/- smeared with the phenolphthalein and marked under the Entrustment Mahazar was recovered from the accused under Seizure Mahazar. The currency recovered from the accused tallied with the currency number found in the Entrustment Mahazar. In addition, the hands of the accused was tested with the Sodium Carbonate solution. The solution turned red indicates handling of phenolphthalein. The shirt pocket portion where the money was kept by the accused also subjected to the phenolphthalein test and proved positive. The trial Court has also found that there is no corroboration for the allegations of second demand on 22.11.2003. However, the third demand on the day of the trap and successful completion of the trap leads to the inference of the previous demand. The third demand and proof of third demand cannot be an inference for the earlier demand unless and until, it is proved beyond doubt. In this case the second demand on 22.11.2003 lacks corroboration, but it does not disproved the case of the prosecution in respect of the demand on 24.11.2003 and the receipt of the same by the accused. The defence taken by the accused that the money was planted in his shirt pocket is not probable, since not only his shirt pocket portion, but both of his hands were found positive for phenolphthalein. Unless and until the accused had received the money and counted it before keeping it in his pocket, it is impossible for both his hands to contact phenolphthalein. Neither PW.2 nor PW.3 had any animosity against this appellant to depose facts which is not true. Inspite of incise cross examination of these two witnesses, their credibility has not impeached. Therefore, the evidence of 2nd witness corroborated by the eye witness 3rd witness of the prosecution for demand and acceptance of Rs.1,000/- on 24.11.2003 during the trap besides scientific proof. Recovery of the tainted money from the possession of the accused prove the case of the prosecution to the core. The trial Court has rightly convicted the appellant. There is no ground to interfere in the judgment of the trial Court.

Conclusion:

The Court Concludes that this Criminal Appeal shall be dismissed and the trial Court conviction and sentence shall be confirmed. The trial Court is directed to secure the appellant/accused and commit him to prison to undergo the remaining period of sentence. The period of sentence already undergone by the accused shall be set off under Section 428 of Cr.P.C.

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Madras High Court directs BPCL is to vacate the subject Government land within 1 month.

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Title: Bharat Petroleum Corporation Ltd. Vs.  State of Tamil Nadu.

Decided On: September 19, 2023.

W.P.No.20312 of 2020 and W.M.P.No.25096 of 2020.

Coram: Hon’ble Mr. Justice S.M. Subramaniam.

Facts:

The Government issued G.O. on 03.02.1978 and ordered to lease out an extent of 0.21 6/16 acres (or) 21.375 cents of the Government land in Udhagai Taluk, Nilgiris District in favour of M/s. N.N Naidu & Sons for the period from 17.07.1967 to 13.06.1978 with the condition that the lease will not be renewed after 30.06.1978. Accordingly, the Government had ordered for resumption of the subject land on 01.07.1978. The Government had ordered for leasing out the subject land to M/s. Bharat Petroleum Corporation Limited, for a period of 13 years from 15.05.1981 to 14.05.1994. On expiry of the lease period, the lease was renewed for a further period of 9 years from 15.05.1994 to 14.05.2003. The lessee BPCL had not remitted the lease amount to the Government and action was initiated under the provisions of the Revenue Recovery Act by the Tahsildar, Udhagamandalam against the lessee.   

The present case, the lease period expired as early as 14.05.2003 and in view of pendency of W.P.No.13012 of 2007, filed by M/s.N.N. Naidu and Sons (Dealer of BPCL) and interim stay granted thereon, further renewal of lease could not be made. While dismissing the writ petition on 08.08.2019, the Hon’ble High Court has pointed out that M/S. N.N.Naidu & Sons has no locus standi to challenge the demand notice issued by the Tahsildar, as they were not party to the notice. The petitioner’s Company having known the above fact, allowed the dealer to contest the case unnecessarily for the past 13 years and failed in the legal forum, now has come forward to negotiate with the administration for the fixation of the fair lease rent.

Legal Analysis and Decision:

In the present case, the petitioner lessee is neither paying the lease rent nor is vacating the Government land so as to put the land for any kind of public interest. the Government issued orders for collection of lease rent at 7% of land cost inclusive of additional surcharge and 14% of land cost inclusive of additional surcharge for non commercial purpose and commercial purposes respectively, in respect of the leases in the Municipal areas and Corporation limits. Based on the said Government Order, the lease rent at the rate of 14% of the land cost is worked out as lease rent and the petitioner has not challenged the Government Order having accepted the renewal of lease and fixation of lease rent as ordered by the Government. The petitioner company has to abide by the terms and conditions. The petitioner company having agreed to the terms and conditions laid down by the Government and the District Administration, Nilgiris District, is obligated to comply with the same. The penal rent at the rate of 12% of the lease rent per annum was also imposed by way of the condition which was agreed by the petitioner company.

The petitioner company is in unauthorised occupation of the valuable Government land. Adjacent to the petitioner company, there are other petrol bunks which are run by other petroleum corporations. Thus, resumption of land would not cause any public inconvenience in that locality. The petitioner is a chronic defaulter in payment of lease rent and they have continuously committed default in payment of the rent. The petitioner BPCL, being a commercial organization and running petrol bunk for profit, is not entitled to claim any leniency either from the Government of Tamil Nadu or from the hands of this Court. The petitioner is selling petroleum products and making profit without paying lease rent to the Government of Tamil Nadu resulted in monetary loss to the state exchequer. As rightly pointed out that Udhagamandalam is a hilly area where 45% of the area is covered by forest, the District Administration finds it difficult to identify lands for public purposes.

The court passed the following orders:

  • The relief as such sought for in the present writ petition stands rejected.
  • The petitioner BPCL is directed to vacate the subject Government land within a period of one (1) month from the date of receipt of a copy of this order and to hand over vacant possession to the District Administration of Nilgiris District.
  • In the event of failure to vacate the premises within a month, the respondents 1 to 3 are directed to evict the petitioner and resume the Government land immediately on expiry of the 1month period.
  • The respondents 1 to 3 are directed to recover the arrears of lease rent and other charges as admissible under law by following the procedures as contemplated.

Conclusion:

Since the petitioners has not established any acceptable grounds for the purpose of considering their case for grant of relief. The court directed BPCL to vacate the land and handover the possession to District Administration of Nilgiris District within 1 month.

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The petitioner as an artisan is entitled to sell the articles made by him and this right is guaranteed under Article 19(1)(g) of the Constitution of India says Madras High Court.

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Title: Prakash Vs. The District Collector, Tirunelveli District.

Decided On: September 16, 2023.

W.P(MD)No.22892 of 2023.

Coram: Hon’ble Mr. Justice G.R. Swaminathan.

Facts:

The Petitioner hails from Rajasthan. He and his team are presently in Palayamkottai for the purpose of making idols. He has made a few scores of Vinayaka idols. His grievance is that the third respondent, on instructions from the respondents 1 and 2 is preventing him from selling the idols that have already been made. The petitioner is said to have borrowed a substantial sum. If he is unable to sell the idols, he will be financially ruined. For forbearing the respondents from interfering with his right, the present writ petition came to be filed.

Legal Analysis and Decision:

If the idols are eco- friendly, they can be manufactured and sold and such activities cannot be stopped for any reason. If the police or the authorities indulge in any act of prevention, that would be rank illegality. They will have to answer if the aggrieved individual invokes public law remedy. Damages will have to be paid for the business loss caused. The petitioner claims that the plaster of paris has been used only up to permissible level. According to him, the buyers may want the same for any purpose. They could be installed at homes or temples or even marriage halls. While I endorse the said contention, I make it clear that immersion of idols containing plaster of paris cannot be permitted. But their sales cannot be prevented by the authorities. In order to ensure that the norms regarding immersion are not violated, the petitioner is directed to furnish the details of the purchasers. Sale of every idol will have to be duly accounted. The petitioner shall make an register containing particulars of those who are purchasing from him. The register shall be open for inspection by the respondents. If the Vinayaka idol can be dissolved in an ecofriendly manner, its installation cannot be stopped. Visarjan can be in any creative manner. In any event, Tamirabarani or any water body cannot be used for immersion of idols made with plaster of paris. The petitioner as an artisan is entitled to sell the articles made by him and this right is guaranteed under Article 19(1)(g) of the Constitution of India. The restraint on immersion is reasonable restriction. But prevention of sale would amount to violation of the petitioner’s fundamental right. The respondents shall not prevent the petitioner from selling the idols made by him. Ofcourse the sale transactions are subject to the condition mentioned above.

Conclusion:

The Held that Lord Vinayaka symbolizes luck. He is worshipped by Hindus who believe that He will remove all obstacles. It was the great patriot Sri. Bal Gangadhar Tilak who organized Ganesh Chaturthi Processions. They have helped to unify the society by cutting across caste differences. The right to organize Vinayakar Chaturthi processions is not the subject matter of this writ petition and the court refrained from going into the issue.

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Madras High Court remits back the case to the Director of School Education, to re-examine the entire issue and pass necessary orders.

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Title: A. Rajinikanth Vs. Secretary to Government School Education Department. 

Decided On: September 14, 2023.

WP.No.10601/2018.

Coram: Hon’ble Mr. Justice C.V. Karthikeyan.

Facts:

The petitioner was working as Assistant in the Government Higher Secondary School, Olakkur in Tindivanam, Villupuram District, from 21.04.2014. He was earlier working in the office of the District Educational Officer, Tindivanam. At that time, a case was registered against him by the District Crime Branch, Villupuram in Crime No.74/2011 alleging that along with the other accused, the petitioner had helped the 1st accused therein to copy during the 10th standard public examination and complete his examination successfully. It was therefore alleged that the petitioner and the other accused committed offences under Sections 468, 471, 120[B], 201 read with 34 of IPC. The petitioner had been suspended from service on 08.10.2011. A charge memo was issued on 01.02.2012. An enquiry was conducted and during the enquiry, the charges were held to be established by an order dated 28.01.2015. The petitioner gave a subsequent explanation on 19.05.2015 to the Director and Joint Director of School Education. The criminal case which had been registered against the petitioner herein, ended in acquittal in Crl.A.No.18/2013 in a judgment dated 24.07.2013 by the II Additional District and Sessions Court, Tindivanam.

The order of suspension was revoked by an order of this Court in WP.No.29013/2013 dated 25.10.2013. The petitioner was then reappointed to service after he had filed a contempt petition. The petitioner had also filed WP.No.37079/2016 calling upon the respondents to expedite the enquiry. Orders in that regard were also passed. Thereafter, the petitioner had filed an appeal questioning the findings of the Enquiry Officer before the 2nd respondent. The 2nd respondent had rejected the appeal and had confirmed the order of the 3rd respondent / Disciplinary Authority of imposing the punishment of stoppage of increments for two years without cumulative effect. Questioning that particular order, the present writ petition has been filed.

Legal Analysis and Decision:

The Enquiry Officer had recorded the statements of two witnesses. As a matter of fact, it is stated that the witnesses were not examined in person, but their statements alone were taken on record. The petitioner was not given any opportunity to cross examine both the said witnesses. The petitioner had also given a request for examining a witness on his side. That was also not considered by the Enquiry Officer. Thereafter, when the petitioner filed an appeal before the Appellate Authority / 2nd respondent herein, he had again raised the same issues of procedural violations during the enquiry, namely, denial of opportunity to cross examine the witnesses summoned on behalf of the respondents and also denial of opportunity to examine the witness on his side.

The matter is remitted back to the 2nd respondent, Director of School Education, who may re-examine the entire issue, examine the records once again and specifically find out whether the petitioner had placed a request for opportunity to cross examine the two witnesses whose statements had been taken on record by the Enquiry Officer and if that opportunity had been denied, examine whether necessary reasons have been given by the Enquiry Officer for denial of such opportunity. The 2nd respondent may also examine whether the petitioner had placed a request for examining any witness on his side and also examine whether the Enquiry Officer had applied his mind to either accepting such request or rejecting such request and whether reasons had been given for rejection. The 2nd respondent may realise that he, as the Appellate Authority, has, not only the responsibility to look into the punishment aspect which has been imposed by the Disciplinary Authority, but more importantly, also has the responsibility to examine whether there had been procedural violations committed by the Enquiry Officer.

Conclusion:

The Court held that the matter is remitted back to the Director of School Education, to re-examine the entire issue and pass necessary orders within a period of sixteen weeks from the date of receipt of a copy of this order. The punishment may be kept in abeyance and while reconsidering the entire issue, the Director of School Education may also pass an
order relating to the punishment imposed by the Disciplinary Authority.

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Madras High Court Directs The Tamil Nadu Fire and Rescue Services board to appoint a committee and review for the recruitment of an Fireman.

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Title: M. Navaneetha Krishnan Vs. The Chairman, Tamil Nadu Uniform Services Recruitment Board.

Decided On: September 14, 2023.

W.A.(MD)No.1351 of 2023. 

Coram: Hon’ble Mr. Justice D. Bharatha Chakravarthy.

Facts:

The Government of Tamil Nadu issued notification for the post of Fireman in Category-5 in Fire Subordinate Service. Recruitment to the said post is governed by the Rules framed under the proviso to Article 309 of the Constitution of India, which are known as Tamil Nadu Fire Subordinate Service Rules, as per which, the post is to be filled up by way of direct recruitment. The petitioner considering himself fully qualified to be appointed to the said post submitted an application in April 2019. Pursuant to the application, the appellant was allowed to participate in the selection process and based on his marks in the written examinations, physical examination etc., the appellant was selected for the said post and his name figures in the select list of 191 persons selected for the said post. However, even though 178 out of 191 selected persons were sent for training with effect from 07.07.2020, the appellant was not called for training. Upon enquiry, the appellant was informed that on account of his antecedents being involved in criminal cases, he was not being sent for training. Therefore, the appellant made a detailed representation to the respondents on 16.07.2020. Upon the said representation, the impugned order dated 27.07.2020 was passed communicating the reasons for his nonappointment. The impugned order states that an adverse police verification report regarding character and antecedents have been received in the case of the appellant that two cases namely a case in Manamadurai Police Station Crime No.188 of 2010 for offences under Sections 147, 148, 341, 323, 325, 307 and 302 of IPC and Manamadurai Police Station Crime No.294 of 2019 for the offences under Sections 294(b), 323, 342 and 506(1) of IPC. On account of the said adverse report, the appellant was informed that he could not be appointed as Fireman. Challenging the same, the present writ petition is filed.

Legal Analysis and Decision:

The Court held that while assessing the character and antecedent, since both cases have been taken and a decision has been arrived at, and since we have held that one of the cases that is Crime No.188 of 2010, in which, the petitioner is said to have involved in the offence when he was a juvenile, cannot be taken into account at all, we are unable to sustain the order impugned in the writ petition and consequently the order of the learned Single Judge cannot be upheld. The Court had given certain directions.

  • The order passed by the learned Single in W.P.(MD)No.11110 of2020, dated 24.03.2022 shall stand set aside.
  • The order of the second respondent dated 27.07.2020 impugned inthe writ petition is set aside.
  • The first and second respondents through the concernedcommittee shall review the case of the appellant by considering the case in Crime No.294 of 2019 alone and shall independently take a decision as to the suitability of the petitioner with reference to the Rules in force as on the relevant date.
  • Needless to say that if the petitioner is found eligible, he shall beforthwith appointed and be included in the next batch of training in which case, the petitioner will be entitled for all the benefits from the date of  However, his seniority will be on the bottom of the batch in which the petitioner was selected.
  • If the committee still finds the petitioner is ineligible, the said ordershall be duly communicated to him.
  • The entire exercise shall be carried on within a period of threemonths from the date of receipt of the copy of this Order.

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