Madras High Court censures TN govt for terming water project ‘technically infeasible’

The Madras High Court has censured the Tamil Nadu government for terming a proposal for uninterrupted supply of water to a group of villages “technically not feasible”, while drawing a contrast with India’s space missions to the Moon and a planned programme to study the Sun.

Allowing a petition of a farmers’ association, Justice K Kalyanasundaram on Wednesday directed the government to build within three months an underground tunnel or overhead super passage across a contour canal near Pollachi in Coimbatore district.

He said though the proposal for the construction of a super passage at a cost of Rs 15 lakh was made six years ago, nothing happened and the plea for allowing the natural flow of water was considered “technically not feasible” by the government.

“The government is bound to protect the interest of the agriculturists and if they are not able to fulfil their commitments citing technical issue, in my considered opinion, committed skills be employed to fulfil the obligations of the government,” he said.

Nallar-Palar Irrigation Area Farmer’s Association in a plea had sought a super passage or tunnel in the area as the natural flow of river Nallar, the main source of water for six villages, had been blocked after the formation of Parambikulam Azhiyar Project and diversion of the river water to a contour canal.

The riparian rights of the agriculturists were seriously affected and they were deprived of their livelihood, the farmers’ association said.

Justice Kalyanasundaram in his order highlighted country’s technological prowess.

In the 21st century, India successfully launched Chandrayaan-1 on October 22, 2008 by a PSLV-XL rocket and the Chandrayaan-2 on July 22 this year by a GSLV Mk III and the vehicles had to travel more than 3.84 lakhs kms (to the Moon), he said.

“We are proud to say that both the teams were led by Tamilians — Mylswamy Annadurai and K Sivan. Now, it is proposed to launch Aditya-L1 prob, to study the Sun, and it shows there is a large scale of development of technology in India,” he said.

Justice Kalyanasundaram also observed how in 1960s a contour canal was formed in the Western Ghat by piercing a hard rock for a distance of about 50 km and at some places water was taken through tunnels.

He said it is apposite to note that in the 20th century, when there were absolutely no roads and transport facilities, beautiful dams had been built in the Western Ghats and they are still serving their purpose.

Why not Give Part of Jayalalithaa’s Properties to Public, asks High court

Why not a portion of former CM. J Jayalalithaa’s properties be allotted for welfare of the public as she was a leader who always said she was made by the people & worked for them, the Madras HC asked on Friday.

A division bench of Justice N Kirubakaran & Justice Abdul Quddhose made the oral observation while hearing a plea moved by an All India Anna Dravida Munnetra Kazhagam (AIADMK) member seeking to appoint him as official administrator to manage the properties of the former CM. In response, Jayalalithaa’s niece J Deepa & nephew J Deepak, who were present in the HC as per the directions of the bench, submitted that they have no objection in doing so as it was the wish of their aunt as well.

But as the only legal heirs of Jayalalithaa, we are entitled to all of her properties. We have plans to establish a trust in her name & provide charity to the people, they added.

Recording the submissions, the bench said why it took so long for them to approach the HC seeking permission to administer Jayalalithaa’s properties.

To this, Deepa said that since she had approached the authorities concerned for legal heir certificate, it took some time to move the HC. She added that she was denied access to Jayalalithaa’s Poes Garden residence.

High Court Shifts Sexual Plaint Probe Against IG to Telangana

The Madras HC on Wednesday shifted the probe into the sexual harassment complaint filed by a woman superintendent of police (SP) against DVAC joint director S Murugan out of Tamil Nadu & handed it over to Telangana.

A report is to be submitted by the Telangana police to the HC in 6 months.

“We are conscious of the fact that the inquiry & investigation out of a state isn’t envisaged under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act. But, looking to the nature of positions of both the parties, nature of allegations…we are inclined to ensure complete fairness & independence in the internal enquiry as well as the investigation in the First Information Report (FIR),” said the division bench of Justice Vineeth Kothari & Justice C V Karthikeyan on Wed.

The bench directed the chief secretary of Telangana as well as the Director General of Police (DGP) to undertake necessary steps for constitution of a separate internal complaints committee (ICC) in Hyderabad, headed by a senior lady officer. The complaint as well as First Information Report (FIR) filed shall be probed by a senior & independent official of Telangana police. “The report of internal complaints committee (ICC) & the report on investigation of the First Information Report (FIR) may be transmitted back to this HC within 6 months,” the bench added.

The HC passed the transfer order despite opposition from the Tamil Nadu govt on whose behalf advocate-general Vijay Narayan argued that the state’s image might be adversely affected if such transfer was ordered. Murugan also protested the proposal to shift the case out of Tamil Nadu.

High Court mulls ways to curb criminal abuse of social media

The Madras HC on Wednesday simply adjourned the hearing of the PIL seeking to link Aadhar with social mediaaccounts to ensure easy detection of online fraud & cybercrimes, as the SC(Supreme Court) is seized of the issue & the latter has restrained the HC from passing any final order.

A division bench of Justice S Manikumar & Justice Subramonium Prasad, however, made it clear that they are not inclined to entertain the prayer for linking Aadhar with social media accounts. The bench said it was trying only to navigate ways to curb online crime with the cooperation of social media companies. The bench then said it would take up the hearing on September 19, as the SC has listed the plea moved by Facebook seeking transfer of all such cases to the Top Court on September 13.

On Wednesday, when the plea moved by Antony Clement Rubin came up for hearing, senior advocate Mukul Rohatgi, representing Facebook, submitted that it would be a waste of time for the HC to continue hearing the matter as the SC had already restrained the HC from passing any final order. Opposing the submission, Tamil Nadu advocate-general Vijay Narayan contended that there is no impediment for the HC to continue the hearing as the SC has made it clear that the HCs could continue hearing the pleas but should not pass any final order.

Concurring with the submissions of Rohatgi, the bench observed that any further hearing of the case would be useless if the Top court decided to transfer the cases from HCs. During the last hearing, an expert from IIT-Madras informed the HC that it was technically possible to track people spreading rumours through social media platforms like WhatsApp.

The submission was made in response to the stand taken by WhatsApp that messages on its platform can never be traced to the origin because of the encryption built in to ensure privacy of its users. V Kamakoti, a professor at IIT-M countered this, telling the court that it is technically possible to add an ‘original’ identification tag to messages on WhatsApp even with the encryption. He said this is possible by WhatsApp making a change in the product design to include the phone number of the ‘originator’ whenever a message is forwarded.

Madras high court directs Southern Railway to install CCTV cameras in trains

Observing that police officials committing act of sexual harassment against women in running trains cannot be spared, the Madras high court on Thursday directed Southern Railway to install CCTV cameras in train coaches for the safety of woman passengers.

The court issued the direction while rejecting a petition filed by a dismissed police constable, A Vinoth. Vinoth was recruited as a Grade-II police constable under sports quota in 2008. He was deputed to the Railway Police in Trichy.

He was deputed to perform patrol duty on the Tuticorin – Chennai Pearl City Express train on December 29, 2014 along with a woman constable, Amsavalli. A passenger named Selvi, who travelled in S6 coach, submitted a complaint to the Government Railway Police, Tambaram, Chennai, stating that on December 29 when she was travelling in the train, the petitioner asked her cellphone number and talked to her saying that she looked pretty.

On receipt of the complaint, the authorities concerned placed the petitioner under suspension and conducted an inquiry. The departmental disciplinary proceedings ended with an order of dismissal from service on April 15, 2015.

When the petitioner preferred an appeal before general manager of Southern Railway, it was rejected. Hence, the petitioner moved the high court in 2015. The additional government pleader submitted that the woman constable, Amsavalli, had stated that the petitioner had talked to the complainant in an indecent manner in an inebriated mood.

Justice S M Subramaniam observed, “The state must provide adequate protection and ensure that the woman passengers, who are travelling lonely during odd hours, are to be protected by issuing certain guidelines to the police officials, who all are on duty in trains.”

“No leniency or misplaced sympathy can be shown in respect of such offences in a running train against woman passengers. In a running train, these women passengers are helpless. The police officials on duty are carrying arms and even the co-passengers cannot come to the rescue of such women,” observed the judge.
Hence, the judge suo motu impleaded the general manager of Southern Railway and directed to conduct a survey with the assistance of the experts and install CCTV cameras in railway coaches and compartments for the purpose of providing adequate safety and security to woman passengers, old age passengers and children.

The judge directed the Southern Railway to formulate the improvised guidelines to meet out the current day circumstances, to be followed by the security officials in running trains. The judge confirmed the order of dismissal and rejected the plea of the petitioner.

High Court Moots Special Teams to Assess Quality of Teaching in Govt. Schools

The Madurai Bench of the Madras High Court on Monday observed that there was a need for periodical assessment of the quality of teaching in government schools.

Justice S.M. Subramaniam directed the Secretary, School Education department, to constitute special teams in all districts under the chairmanship of Chief Educational Officer to conduct periodical inspection of government schools for assessing quality of teaching as well as knowledge acquired by students.

The court also directed the Secretary to instruct the CEOs to constitute additional teams based on the number of schools to be inspected. The additional teams should conduct frequent inspections of implementation of education policies to improve the quality of education in rural areas.

In order to assess the quality of teaching & to ascertain if it was on a par with standards prescribed under the education policy, a set of questions & answers should be formulated in consultation with experts. Further, the court directed the Secretary to monitor the functioning of special teams.

The respondent, School Education department, should ensure that students studying in elementary & primary schools were capable of reading, writing & possessed arithmetic skills. Should there be any lapses, serious action should be initiated against teachers, the court said.

The court was hearing a writ petition filed by Sowpackiavathy of Madurai, who sought to quash the disciplinary proceedings pending against her. Refusing to grant relief to the teacher, the court ordered that disciplinary proceedings for not taking classes properly be concluded as expeditiously as possible.

 

It was said that during an inspection of her class none of the students could answer the questions asked by the school inspector. Taking cognisance of the submission, the court observed that no teacher could take defence that students were incapable of learning, particularly those from rural areas.

Madras High Court Sets Aside Order for NEET Rank Revision

The Madurai Bench of the Madras High Court on Monday allowed the appeal preferred by the National Testing Agency (NTA) against the order of a single bench that had directed revision of NEET rank of a medical aspirant.

The single bench, in its order, directed the NTA to consider the plea of the candidate who had wrongly mentioned his community status as OBC, instead of SC. The court had ordered that the candidate be placed under the SC list & his ranking revised.

Challenging the order, the Centre submitted that the candidate, M. Vikram Balaji, had wrongly mentioned his community status as OBC instead of SC in the application form for NEET 2019. Though two opportunities were provided to the candidate, he did not make the correction, it was argued.

A public notice was issued on the website on January 14, informing students to carry out corrections, if any, in the application form. The application could have been corrected till January 31, the deadline. On May 27, another opportunity was provided till May 31 to carry out the correction.

Yet both the opportunities were missed by the candidate. It was not the responsibility of the Centre to vouch for the information/documents in the online application of candidates. It was for the candidates to ensure the authenticity of information uploaded by them, the Centre said.

Taking the submission into account, a Division Bench of Justices K. Ravichandrabaabu & Senthilkumar Ramamoorthy allowed the appeal preferred by the Centre & set aside the single bench order that had granted relief to the candidate.

Madras High Court asks Doctor Husband to pay Rs.40000 pm Maintenance to Hearing impaired Wife

Upholding an order by a family court, the Madras high court directed a dentist from Chennai currently working at a software company in Bengaluru to pay Rs.40,000 maintenance to his estranged wife, a hearing-impaired woman, & their teenage daughter.

The man’s appeal against the family court’s order was dismissed by the high court which held that he failed to submit his correct income from the software company, where he is supposed to be working while the fact remains that, he has a separate clinic in Chennai & engages the services of junior dentists to run the clinic.

The couple were married in 2005 & after they got separated, the wife filed a petition seeking maintenance. The family court, in February 2019, directed the man to pay the interim maintenance.

In the appeal, the counsel for the husband submitted that his client was not successful as a dentist & hence he was working in a software company in Bengaluru. “Therefore, the sum of Rs.40,000 is far & excessive,” the counsel submitted.

Refuting the contentions, the counsel for the wife submitted that the woman is a Class X drop out & suffers from hearing impairment. It was also pointed out that there are no dependents on the man as his father is a pensioner & that the family owns three houses.

The high court said, “It is a unique & peculiar case to notice the husband being a dentist has transformed as a software professional.” On submission that he has no income through the dental profession, the family court pointed out from that he is capable of paying salaries to junior dentists & rent for the clinic & he wouldn’t have done so but for his income from it.

Madras High Court directs Cognizant, shareholders to approach Dispute Resolution Panel over 2017 Tax Dispute

The Madras High Court on Tuesday dismissed writ petitions filed by Cognizant Technology Solutions India Private Limited (Cognizant) and two of its foreign shareholders – Cognizant (Mauritius) Limited and New Jersey-based Cognizant Technology Solutions Corporation – over tax disputes relating to the buy-back of shares.

Justice K Kalyanasundaram dismissed the petitions on grounds of maintainability, while observing that,

“…the Hon’ble Apex Court and the High Courts have consistently held that the assessees before approaching the High Court by way of filing Writ Petitions invoking Article 226 of the Constitution of India, have to exhaust the remedies provided under the IT Act…”

The dispute at hand emanated from the buy back of shares by Cognizant from its foreign shareholders. The petitioners submitted that the subsidiary company had decided to buy back the shares since it had substantial cash surplus in 2013, for which there was no immediate requirement in the company. Consequently, Cognizant identified buy-back of shares under Section 77A of the Companies Act, 1956.

The value of the shares determined using the Discounted Free Cash Flow (DCF) method stood at Rs 23,915.10 per share. The process of buy back of shares at this price was completed by May 2013.

However, the Income Tax (IT) authorities subsequently estimated the price per share at Rs 8,512, based on a Fair Market Value estimation, citing 11UA of the Rules of Income Tax Act, 1961 (IT Act). A show-cause notice was eventually issued in December 2017 as to why the excess consideration over the said value should not to be assessed to tax under Section 56(1) of the IT Act. On December 31, the IT authorities also passed their draft assessment order based on this valuation.

This prompted the two shareholders to approach the High Court invoking its Article 226 writ jurisdiction. The petitioners contended that passage of the draft assessment order involved a violation of the principles of natural justice and that the draft order was passed in contravening Section 92CA(4) of the IT Act.

Specifically, it was highlighted that the Transfer Pricing Officer who was assigned to determine the Arms Length Price for the buy-back of shares had concluded in October 2017 that “no adverse inference is drawn” on the Cogniznant’s transactions. While this is the case, it was argued that the assessing officer was bound to pass order in conformity with the valuation arrived by the Transfer Pricing Officer.

In response, the IT department contended that the case involved a dubious transaction devised by the petitioners to pay exorbitant amounts for the shares only to avoid paying Dividend Distribution Tax (DDT) and Buyback Distribution Tax (BBDT), and to take undue and unintended benefits from a tax treaty between India and Mauritius.

The Court, however, did not delve too deeply into the merits of the matter since the petitioners had not approached the alternate grievance redressal forums prescribed in the Income Tax Act itself. Noting that the Income Tax Act provided for a Dispute Resolution Panel consisting of experts in the field, the Court held,

“The Dispute Resolution Panel is empowered by the Act to consider the objections, and pass suitable orders, viz., may confirm, reduce or enhance the variations proposed in the draft order. The Assessing Officer is bound to pass final Assessment Orders in tune with the order of the Dispute Resolution Panel.

Against the final order, the First Appeal lies before the Commissioner of Income Tax (Appeals) under Section 246 of the IT Act and Second Appeal lies before the Appellate Tribunal under Section 253 of the IT Act. Thereafter, an appeal lies to the High Court under Section 260A of the IT Act on the substantial questions of law…

… A plain reading of the Sub-section 6 of Section 144 C of the IT Act would make it clear that the Dispute Resolution Panel has wide power to consider all the materials and pass appropriate orders under sub-section 7 of the Act.”

The Court, therefore, dismissed the writ petitions and directed the petitioners to approach the Dispute Resolution Panel within two weeks.

“… in my opinion, these Writ Petitions are not maintainable at this stage. In that view, these Writ Petitions fail and they are accordingly dismissed.

However, with liberty to the petitioners raise all the issues before the Dispute Resolution Panel within two weeks from the date on which the judgment / order is made ready. It is needless to mention, if objections are made within the time, the Dispute Resolution Panel shall consider the same on merits and in accordance with law.”

In a separate order passed the same day, Justice Kalyanasundaram also dismissed a plea filed by Cognizant India challenging a March 2018 order passed by the IT department, which had directed Cognizant to remit tax at 15% of the total payment of about Rs.19,415 crore along with interest under Section 115P of the IT Act.

According to the IT Department, the said amount was remitted by Cognizant to its non-residential shareholders without paying Dividend Distribution Tax (DDT) under Section 115 O of the Act. The High Court, however declined to entertain Cognizant’s challenge to the same while observing,

” … the Hon’ble Supreme Court and various High Courts have held that the assessee has an appeal remedy under Section 246 of the Act. In this case, an unsuccessful attempt has been made by the petitioner to bypass the appeal remedy, but, I find no valid ground to entertain the Writ Petition. In that view, the Writ Petition is dismissed as not maintainable at this stage.”

Instead, Cognizant was given liberty to approach the appropriate appellate authority within four weeks. The judge ordered,

“If such an appeal is filed within the stipulated time, the Appellate Authority shall dispose of the same on merits, after providing sufficient opportunity of hearing to the petitioner. It is needless to mention that the above observations have been made only to reach a prima facie conclusion.”

Senior Advocates Gopal Subramaniam and Srinath Sridevan appeared for Cognizant and its shareholders. Additional Solicitor General G Rajagopalan and Karthik Ranganathan, senior standing counsel, appeared for the IT Department.

Madras High Court reserves judgment in challenge to constitutionality of GSTAT

The Madras High Court on Friday reserved its judgment in the petitions challenging the constitutionality of the GST Appellate Tribunal (GSTAT) under the prevailing GST regime.

Arguments in the matter concluded yesterday before the Bench of Justices S Manikumar and Subramonium Prasad. The High Court had initially issued notice to the Central Government in August last year.

The case involves two similar petitions, one by Advocate V Vasanthakumar and another by the Revenue Bar Association (RBA). Both petitions assail Sections 109 and 110 of Chapter XVIII of the Central Goods and Services Tax (GST) Act and the corresponding provisions in the state Act.

These provisions lay down that the appellate tribunals for tax matters are to be constituted by one judicial member, one technical member (Centre) and one technical member (State) i.e. two technical members and a judicial member.

The petitioners have challenged this scheme, contending that the number of technical members on the tribunal cannot exceed the number of judicial members. The broad basis of the challenge is that the dominance of technical members on the GSTAT would would violate the doctrine of separation of powers and infringe upon the independence and impartiality of the judiciary.

Further, the exclusion of lawyers from being appointed as members of the GSTAT has also been challenged. Under the present GST regime, only civil servants and judicial officers are eligible for appointment as judicial members to the appellate tribunal.

The final round of hearings in the case had commenced before the present Bench on June 8.

While concluding the reply on behalf of the RBA on Friday, Senior Advocate Arvind Datar asserted that such exclusion of advocates from appointment to the GSTAT was incomprehensible, irrational and illogical. Datar was briefed in the matter by Advocates Rahul Unnikrishnan and Karthik Sundaram. Inter alia, Datar stated in his reply that the Constitutional scheme called for appointment of persons with judicial expertise as opposed to domain expertise to the tribunal.

Appearing in person, Advocate Vasanthakumar has made allied submissions while referring to Articles 124, 217 and 233 of the Constitution, These provisions allow the direct recruitment of advocates having sufficient experience to the District Courts and the Higher Judiciary. This being the Constitutional position, Vasanthakumar has asserted that there cannot be a deviation when it comes to recruitment of members to the GSTAT and that the Constitution scheme will prevail.

Among other cases, the petitioners placed reliance on the law laid by the Supreme Court in the cases of Union of India v R Gandhi, MBA v UOI, SP Sampath Kumar v UOI and Union of India v. Delhi High Court Bar Association to buttress their arguments.

In arguments made last week the State defended the validity of the challenged provisions by contending that the composition of tribunals must conform to the concerned statute.

Without statutory backing, Additional Solicitor General G Rajagopalan argued, the appointment of lawyers as judges would be illegal. Inter alia, he had also submitted that a lawyer’s right to practice under Article 19 (1) (g) of the Constitution does not include the right to be appointed a judge. The ASG had appeared for the Union Ministry of Law and Justice.

Submissions were also made last week on behalf of the Union Finance Ministry and the GST Council, as well as by the state of Tamil Nadu supporting the Law Ministry’s stance. It was argued that what is required is that the Tribunal members are legally qualified and judicially trained. In this scenario, judicial training meant that the member had sufficient adjudicatory experience, it was argued.

Appearing tor the Finance Minister and the GST Council, Advocate Aparna Nandakumar went on to submit that in the case of the GSTAT, a selection committee would be tasked to select members who have such requisite adjudicatory experience. She pointed out that this selection committee is yet to be appointed and that the the present challenge is, therefore, premature as well.

Inter alia, it was also argued that the MBA case cannot be relied upon in the instant case as the constitution of the GSTAT is traceable to Article 246A (exclusive power of the Parliament to make laws concerning GST, which was not in existence when the MBA judgment was pronounce) and not Article 323B (general power of the legislature of enact laws for the creation of tribunals) of the Constitution.