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Bombay High Court Civil Law Digest 2023
LIVELAW NEWS NETWORK
9 Feb 2024 12:15 PM GMT
Judgments on CPC, Land Acquisition, Motor Accidents Compensation, Railway Accidents Compensation, Maharashtra Village Panchayat Act and Other Civil CasesCivil Procedure Code Opportunity To Examine Vital Witness Cannot Be Denied Only Due To Failure To Show Reason For Omitting Name In Witness List: Bombay High Court Case Title: Dinesh Singh Bhim Singh v. Vinod Shobhraj...
Judgments on CPC, Land Acquisition, Motor Accidents Compensation, Railway Accidents Compensation, Maharashtra Village Panchayat Act and Other Civil Cases
Civil Procedure Code
Opportunity To Examine Vital Witness Cannot Be Denied Only Due To Failure To Show Reason For Omitting Name In Witness List: Bombay High Court
Case Title: Dinesh Singh Bhim Singh v. Vinod Shobhraj Gajaria
Citation: 2023 LiveLaw (Bom) 62
The Bombay High Court held that failure to show reason for not including witness names in the witness list under Order XVI Rule 1(1) of CPC alone cannot be a reason to disallow the plaintiff from examining witnesses who are vital for determining the dispute.
Justice Sandeep V. Marne, while upholding trial court's order allowing the plaintiff to examine two witnesses held, “Court would not deny them the opportunity by showing technical rules of procedure, drafted for advancing the cause of justice.”
Prayers For Partition & Separate Possession Can't Be Granted In Execution Proceedings: Bombay High Court
Case Title: Hirabai Dattatray Mankar v. Dodke Associates through its Partner
Citation: 2023 LiveLaw (Bom) 64
The Bombay High Court refused to reopen closed execution proceedings for petitioners who had not pursued their objections for 14 years and challenged the executing court's order two years after it was passed. Justice Sandeep V. Marne said that the prayers of the petitioners for partition and separate possession in the objection applications are of the nature of a fresh suit and cannot be granted in execution proceedings. Such prayers can always be sought by the Petitioners by filing a separate suit.
Application For Summary Judgment Under CPC Maintainable Even After Conversion Of Summary Suit To Commercial Suit: Bombay High Court
Case Title: M/s. Ashok Commercial Enterprises and Anr. v. Rajesh Jugraj Madhani
Citation: 2023 LiveLaw (Bom) 89
The Bombay High Court held that the application for summary judgment before the Civil Court under Order 13-A of the CPC by a person, whose summary suit is converted to commercial suit, is maintainable.
Justice Sandeep V. Marne held that such conversion would not cause the petitioner to lose both right to seek summary judgment under Order 13-A and pronouncement of judgment under Order 37 Rule 3.
Section 151 CPC | Bombay High Court Allows Correction In Sale Deed After 38 Yrs
Case Title: Dagadu Shivaji Lodhe And Anr v. Bhaurao Fakira Dongre And Ors
Citation: 2023 LiveLaw (Bom) 143
Observing that the Court's powers under Section 151 and 152 of the Code of Civil Procedure are to rectify errors and do substantial justice, the Bombay High Court allowed correction in a sale deed after thirty-eight years.
Section 5 of the Limitation Act is elastic enough to apply the law in a meaningful manner to meet the ends of justice, Justice Sharmila Deshmukh at the Aurangabad bench observed.
Order 23 CPC | Defendant Can Be Made Plaintiff Upon Partial Withdrawal Of Suit If No Conflict Of Interest With Original Plaintiff: Bombay High Court
Case Title: Nalini @ Madhavi Madhukar Murkute v. Deepak Manohar Gaikwad and Ors.
Citation: 2023 LiveLaw (Bom) 172
The Bombay High Court held that when a plaintiff withdraws a suit partially, conversion of a defendant to a plaintiff is allowed, provided the defendant's interest against other defendants regarding the subject matter property is identical with the plaintiff's.
Justice MM Sathaye set aside a Civil Court order allowing a defendant to be transposed as a plaintiff in a partition suit despite there being a conflict of interest with the original plaintiff.
Plaintiff Alleging Breach Of Confidentiality Must Produce Confidential Info Before Court In Sealed Cover: Bombay High Court
Case Title: Rochem Separation Systems (India) Pvt. Ltd. v. Nirtech Private Limited & Ors.
Citation: 2023 LiveLaw (Bom) 191
The Bombay High Court held that if a plaintiff is alleging breach of confidentiality by the defendants, it has to produce the confidential information before the court in a sealed cover.
Justice Manish Pitale observed that the High Court cannot verify the allegations of breach of confidentiality without perusing the confidential information.
The court vacated its ex-parte interim order in favour of Rochem Separation Systems in a copyright infringement suit against Nirtech Private Limited.
PVR v. Proteus LLP | Payee's Bank Account Being In A Particular City Does Not Mean Bill Is Payable In That City: Bombay High Court
Case Title: PVR Ltd. v. M/S Proetus Ventures LLP and Ors.
Citation: 2023 LiveLaw (Bom) 313
Merely receiver's bank account mentioned in a bill being in a particular city does not amount to the bill being payable in that city, the Bombay High Court held.
Justice Arif S Doctor decreed PVR's commercial summary suit against one Proteus LLP and directed Proteus to pay its dues for screening ads at PVR's multiplexes in Pune and Mumbai, while dismissing Proteus' challenge to Bombay HC's jurisdiction in the matter.
Commercial Suit | Plaintiff Seeking Amendment Of Plaint To Produce Documents Must Show Reasonable Cause For Not Disclosing Them Earlier: Bombay HC
Case Title: Khanna Rayon Industries Pvt. Ltd. v. Swastik Associates & Ors
Citation: 2023 LiveLaw (Bom) 360
The Bombay High Court held that a plaintiff in a commercial suit seeking to amend his plaint to place documents on record must show reasonable cause for not disclosing the documents in the plaint at the time of filing of the suit, if they were in his power and possession.
Justice Manish Pitale held that the provisions of the Commercial Courts Act must operate rigorously to commercial suits to achieve its objective of speedy disposal of high-value commercial disputes.
“...the only provision under which the Applicant can place on record a document which was in its power, possession, control or custody at the time of filing of the suit but was not filed along with the plaint, is Order XI Rule 1(5) of the CPC, as applicable to the commercial courts. The said provision mandatorily requires the Applicant/Plaintiff to establish a reasonable cause for non-disclosure of the document along with the plaint”, the court held.
The court rejected the proposal to place additional documents on record in a commercial suit and only allowed a partial amendment as per the applicant's proposal.
Mere Identification Of Deponent Does Not Mean Advocate Is Personally Attesting To The Contents Of The Affidavit: Bombay High Court
Case Title: Geeta Ramanugrah Shastri v. Bar Council of Maharashtra and Goa and Ors.
Citation: 2023 LiveLaw (Bom) 378
Deprecating the trend of filing complaints against opposing counsels to intimidate them, the Bombay High Court held that mere identification of deponent in an affidavit does not mean advocate is personally attesting to the contents of the affidavit.
A division bench of Justice GS Patel and Justice Neela Gokhale set aside disciplinary proceedings for alleged professional misconduct against Advocate Geeta R Shastri, former Additional Government Pleader in the Court.
The Court cited Order 19 Rule 3 of the Code of Civil Procedure, 1908, which emphasizes that Affidavits should be confined to facts the deponent can personally verify. The Court noted that Shastri was not even the Advocate-on-Record, and merely identified the deponent. Such identification does not imply personal attestation to the accuracy of the deponent's statements, the court held.
The court said that the threat of disciplinary complaints against the opposing lawyer is used in several matters to ensure that the opposing party does not get proper legal representation.
Cause Of Action Arose Partly In Mumbai: Bombay High Court Allows Akasa Air To Proceed In Mumbai Against Pilots Who Left Without Serving Notice Period
Case Title: SNV Aviation Pvt. Ltd. v. Capt. Gareema Kumar
Citation: 2023 LiveLaw (Bom) 458
The Bombay High Court allowed a leave petition filed by Akasa Air, a low-cost airline, seeking permission to proceed against five pilots who resigned from the company without serving their notice period.
Justice SM Modak observed that part of the cause of action arose within the jurisdiction of Bombay High Court as the resignations were accepted by the company in Mumbai.
“...place where resignation was received can be part of cause of action. Sending a resignation through email cannot be sufficient. Ultimately, the company has to take a call on that. Either company may refuse to accept the resignation, or may accept it conditionally, or may accept it for future date. If these options are available to employer and these options can be exercised only when email (of resignation) is received, part of cause of action has arisen in Mumbai”, the court observed.
Counter Claim For Damages From Tenant No Defence To Escape Admitted Liability Of Refunding Tenant's Security Deposit: Bombay High Court
Case Title: Play Games 24X7 Pvt. Ltd. Vs Loran Leasing And Infotech Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 486
Owner filing a suit for damages from his licensee cannot be the only defense to the admitted liability of refunding a licensee's security deposit, the Bombay High Court held while refusing to grant a company unconditional leave to defend a summary suit.
Justice Kamal Khata directed the owner of a 17,196 sq ft premises in Mumbai - Loran Leasing and Infotech Pvt.- to deposit the entire security deposit of over Rs. 90 lakh along with 18% interest in court and only then defend the suit filed by licensee Play Games 24X7 Pvt. Ltd.
If the defendant Loran fails to pay the amount, Play Games would be entitled to apply for an ex-parte decree against Loran, the court ordered.
“In the present case the defence is everything else but genuine or based on good faith… It is amply clear that the Defendant seeks to recover damages and compensation from the Plaintiff in its own suit which certainly cannot be a defence to the admitted liability of refunding the security deposit,” the court said.
Court Can't Return Plaint Based On Defendant's Suit In Another Court Sans Explicitly Recording Lack Of Jurisdiction: Bombay HC
Case Title: Shreem Electric Limited v. Transformers and Rectifers India Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 592
The Bombay High Court held that the trial court cannot return a plaint merely on the ground that the defendant's suit is pending in another court and it would be desirable to try both suits together.
Justice Sandeep V Marne set aside an order of the District Court, Kolhapur returning a plaint so that it could be filed in another court without explicitly giving a finding that the District Court, Kolhapur lacked the jurisdiction to entertain the case.
Trial Court Order Refusing To Return Or Reject A Plaint Not Appealable Under Commercial Courts Act: Bombay High Court
Case Title: Bank of India v. M/s. Maruti Civil Works
Citation: 2023 LiveLaw (Bom) 593
The Bombay High Court held that no appeal is maintainable under the Commercial Courts Act, 2015 against an order of the court dismissing the defendant's application for rejecting or returning a plaint.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor observed that such orders are not specifically enumerated in Order 43 of the CPC which lists the kind of orders appealable under section 13 of the Commercial Courts Act.
The court dismissed an appeal challenging an order of the District Judge, Thane rejecting Bank of India's application for rejecting a commercial suit against it.
Land Acquisition
Case Title: Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 78
The Bombay High Court green flagged the bullet train project and refused to set aside the acquisition of Godrej & Boyce Manufacturing Co. Ltd's plot at Vikhroli.
"There are no irregularities in the acquisition...Project is of paramount importance...Public interest would prevail over private interest," a division bench of Justices RD Dhanuka and MM Sathaye observed. The court has also refused to stay the project.
Godrej had challenged the award and compensation of Rs 264 crore by the deputy collector on September 15, 2022 for acquiring 39,252 sqm (9.69 acre) of company land for the Mumbai - Ahmedabad bullet train project. The company claimed the amount was a fraction of the initial offering of Rs. 572 crores.
Case Title: Chandaba w/o. Gangaram Pauyed v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 82
The Bombay High Court held that dismissal of a compensation enhancement claim only because the claimant did not lead evidence cannot be termed a decision on merits. Observing thus, the High Court set aside the reference court's dismissal of five claims under the Land Acquisition Act, 1894.
Justice Sharmila U. Deshmukh of the Aurangabad bench observed that the reference Court has to consider factors under Section 23 of the Act to decide the claim.
Case Title – Dilip Babubhai Shah and Ors. v. Additional Resident Deputy Collector and Ors.
Citation – 2023 LiveLaw (Bom) 129
The Bombay High Court held that the Collector can pass a compensation award in favour of persons having share in the property under acquisition to the extent of their share even if other interested persons claiming share do not appear before the Collector.
A division bench of Justice RD Dhanuka and Justice MM Sathaye upheld the compensation award for acquisition of certain land for the Bullet Train Project under the Fair Compensation Act. The award was challenged on the ground that it was passed without the petitioners' consent.
Case Title: Sangeeta Natwarlal Karwa and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 145
The Bombay High Court held that once a land acquisition compensation award is passed under the National Highways Act, 1956 by the competent authority, the authority cannot make corrections in it.
A division bench of Justice RD Dhanuka and Justice MM Sathaye held –
“The National Highways Act, 1956 being the self-contained code, the provisions of Section 33 of the Fair Compensation Act, 2013 granting the limited powers in respect of the award declared under the provisions of the Fair Compensation Act, 2013 cannot be extended to the award declared under the provisions of the National Highways Act, 1956.”
"It cannot be held that the Competent Authority under the National Highways Act, 1956, would have any power or authority to either correct the award for any reason whatsoever or for that matter, to pass an additional award or to review the same," it added.
Case Title: Indo Nippon Chemical Co. Ltd v. Mumbai Metropolitan Region Development Authority
Citation: 2023 LiveLaw (Bom) 173
The Bombay High Court rejected a challenge to alignment of Mumbai's Metro Line 4 observing that the petitioners attempted to stall and delay the project of public importance under the garb of enforcing their private rights.
A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne stated that the petitioners raised baseless arguments and made MMRDA justify each action regarding implementation of metro project unnecessarily.
Case Title: Govind Poslya Gavit v. The Competent Authority
Citation: 2023 LiveLaw (Bom) 376
Observing that procedural laws dealing with citizens' right to hold property aren't merely ornamental and cannot be taken away, the Bombay High Court (Aurangabad Bench) set aside a land acquisition and compensation order “highhandedly” and hastily passed by IAS officer Minal Karanwal Assistant Collector, Nandurbar, Maharashtra.
Justices Ravindra Ghuge and YG Khobragade pulled up Karanwal for the manner in which the land acquisition was executed against tribals from the very outset, giving them just one day notice for a hearing, passing an order without hearing and compensating them less by terming their industrial lands as agricultural lands. It observed,
Accordingly, the court directed a newly appointed Competent Authority to conduct a re-hearing and award compensation treating the petitioners' lands as Industrial NA.
Private Property Cannot Be Taken Away For Public Purpose Without Compensation: Bombay High Court
Case Title: Eversmile Construction Company Pvt Ltd & Anr. v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 442
The Bombay High Court granted compensation to a company in lieu of its land used for the elevated Sahar Elevated Road which allows connectivity to the Chhatrapati Shivaji Maharaj International Airport.
“We see no possibility at all in law of private property being taken away for a public purpose without some form of compensation, whether in cash or in kind (in the form of TDR/a DRC), at least not without running afoul of Article 300A of the Constitution of India,” the division bench of Justices Gautam Patel and Kamal Khata observed.
In an “utterly unique situation”, both planning authorities - the Mumbai Metropolitan Region Development Authority (MMRDA) and Brihanmumbai Municipal Corporation (BMC) claimed they had no control over the 730 sq meter plot used for the road. The portion is part of a larger land parcel of 22,000 sq meters.
Therefore, the question before the court was who would compensate the petitioner.
In a subsequent resolution the bench directed the Brihanmumbai Municipal Corporation to grant Eversmile Construction Company Pvt Ltd. the applicable Transferable Development Rights (TDR) in lieu of its land.
Case Title: Hatim Fidaali Rajkotwala and Anr. v. Land Acquisition Officer
Citation: 2023 LiveLaw (Bom) 472
The Bombay High Court held that landowners are entitled to interest on the compensation amount if the compensation is not paid or deposited before the acquiring body takes possession of the property.
A division bench of Justice BP Colabawalla and Justice MM Sathaye directed the Collector, Mumbai City, to pay interest to the tune of Rs. 1.6 Crores for acquisition of two properties in Bhendi Bazaar, Mumbai.
The court directed the Collector to pay interest to the Petitioners at a rate of 9 percent per annum for the first year from the date of taking possession and 15 percent per annum from the start of the second year until the actual payment, which was made on October 20, 2022.
The court allowed two writ petitions seeking interest on the compensation awarded to the petitioners under section 80 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the 2013 Act).
Case Title: Manik Chandru Deokar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 508
The Bombay High Court held that project affected persons are allotted alternate land on humanitarian grounds and the State cannot impose any condition on the allotment that may lead to loss of the land. The court said that such a condition would violate Article 14 of the Constitution.
“The object and purpose in rehabilitating a person like the Petitioner by allotting him the alternate land in lieu of his land being acquired for a public project is purely on special and humanitarian considerations and not merely to compensate him as in a normal case of land acquisition…This would certainly not contemplate imposing of a condition which would take away the benefits of such rehabilitation, and in fact would subject such person to a coercive taking away of the alternate land allotted to him”, the court held.
A division bench of Justice GS Kulkarni and Justice Jitendra Jain set aside an order cancelling the allotment of alternate land to a 78-year-old project affected person on the ground that he did not fulfil the condition of constructing a house on the land within a year of the allotment.
Motor Accidents Compensation
Case Title: State of Maharashtra v. Kuldeep Subhash Pawar
Citation: 2023 LiveLaw (Bom) 156
The Bombay High Court upheld a man's acquittal from charge of culpable homicide for causing death of a cyclist and bullock while driving, on the ground that the direction of path of the bullock cart and the spot it was lying after the collision could not be ascertained from the evidence.
Justice SM Modak added the investigating officer should have prepared a map of the scene and the trial court should have questioned the witnesses to clarify and record correct direction of the vehicles.
Motor Accident | Remarriage Not A Taboo Against Compensation To Widow Of Deceased: Bombay High Court
Case Title: The Iffco Tokio General Insurance Company Ltd. v. Bhagyashri Ganesh Gaikwad
Citation: 2023 LiveLaw (Bom) 176
The Bombay High Court held that remarriage will not disentitle the widow of a deceased in a motor accident from receiving compensation.
Justice SG Dige observed that remarriage cannot be a taboo against motor accident compensation
The court noted that at the time of accident, the wife of the deceased was only 19 years old. She remarried during the pendency of the claim petition.
The court said that a widow cannot be expected to remain a widow for life or till getting compensation.
Case Title: Sub-Area Manager, Western Coal Fields Ltd., Padmapur, Chandrapur. v. Anjutai Wd/o Rajkumar Tiple
Citation: 2023 LiveLaw (Bom) 212
The Bombay High Court held that a crane used within coal mine premises falls within the definition of “motor vehicle” under Motor Vehicles Act, 1988 (MVA).
Justice Urmila Joshi Phalke of the Nagpur bench upheld a compensation order for the family of a Western Coalfields Ltd. (WCL) employee who died after colliding with a crane being operated by another employee.
Case Title: Reliance General Insurance Co. Ltd. v. Manjula Kabiraj Das and Ors.
Citation: 2023 LiveLaw (Bom) 220
Compassionate appointment and ex-gratia (voluntary) payment to wife of deceased in a motor accident does not disentitle her from compensation under the Motor Vehicles Act, the Bombay High Court held.
Justice Shivkumar Dige dismissed Reliance General Insurance's appeal against compensation awarded by the Motor Accident Claim Tribunal to the family of an Assistant Technician in a telecom company, who died in a motor accident.
Case Title: Reliance General Insurance Co. Ltd. v. Aman Sanjay Tak and Anr.
Citation: 2023 LiveLaw (Bom) 259
The Bombay High Court held that medical reimbursement received from a motor accident victim's insurance company cannot be deducted from the compensation to be paid by the insurance company of the owner of the offending vehicle.
Justice Shivkumar Dige upheld an award by the Motor Accident Claims Tribunal to an accident victim who received medical reimbursement under his father's Mediclaim policy.
“The Appellant/Insurance Company cannot claim deduction of the amount for which separate premium was paid by different person under different contractual liability. The Appellant/Insurance Company is liable to indemnify the contractual liability between them and owner of offending vehicle. So, the amount received under contractual liability is different amount of medical reimbursement, it cannot be deducted from the amount which the appellants are liable to pay as compensation”, the court held.
Case Title: Shubhash Waman Baviskar and Ors. v. Adinath Hambirrao Budhwant and Ors.
Citation: 2023 LiveLaw (Bom) 266
The Bombay High Court directed an insurance company to compensate a woman's kin for her death in a vehicular accident despite the driver's license having expired on the ground that an expired license wouldn't make him an “unskilled driver.”
Justice Shivkumar Dige set aside the Motor Accident Claim Tribunal's order exonerating the insurance company of any liability owing to the expired driving license. The court further upheld the original claimant's right to appeal in such a case.
Section 173 of the Motor Vehicles Act states that any person aggrieved by the Tribunal's award can file Appeal, therefore the “Appellants being Claimants have right to file Appeal,” the court said.
Case Title: Vijay Arvind Pore v. Rupali Ramdas Deshmukh and Ors.
Citation: 2023 LiveLaw (Bom) 290
Merely because a gas company's name was written on a truck and it was used to transport gas cylinders does not mean that the truck was actually carrying gas cylinders at the time of the accident, the Bombay High Court observed. The court found breach of policy conditions could not be proved and thereby directed anthe insurance company to pay compensation to the family of deceased in a motor accident.
Justice Shivkumar Dige held that since there was nothing to show that the offending truck was carrying hazardous goods, the terms of the insurance policy were not breached just because the driver did not have a license for carrying hazardous goods.
Case Title: G. Chandrashekharan Shivam And Ors. v. Rajkumar Agarwal & Ors.
Citation: 2023 LiveLaw (Bom) 444
The Bombay High Court held that a claimant in a motor accident case is not obligated to claim compensation from owner of the vehicle he was travelling in and is allowed to only seek compensation from owner of the other vehicle involved in the accident.
Justice Sandeep Marne observed that in cases of composite negligence, the claimant has the right to sue only one of the joint tortfeasors.
Case Title: Shriram General Insurance Co. Ltd v. Sou. Jyoti Vithoba Nahire
Citation: 2023 LiveLaw (Bom) 455
The Bombay High Court held that an ad-interim/interim stay can be granted on an award passed under the Motor Vehicles Act (MV Act) even if the appellants' application for condonation of delay in filing the First Appeal against such award is pending.
Justice Abhay Ahuja held was dealing with interim applications filed by three insurance companies and one individual in separate first appeals seeking a stay on execution of awards passed under the MV Act).
The applicants were seeking to file appeals challenging judgments and awards passed under the Motor Vehicles Act. These appeals, filed under Section 173 of the MV Act, were time-barred, i.e., they were filed after the stipulated limitation period.
Case Title: Nita Narendra Nadgouda v. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 578
Observing that the driver of a stationary vehicle on the road has the duty to turn on parking lights, the Bombay High Court attributed 100 percent negligence to the driver of a stationary truck that collided with a motorcycle at night.
Justice Shivkumar Dige enhanced the compensation awarded to the kin of the deceased in the fatal accident in 2003 in a plea seeking by the deceased's kin seeking higher compensation.
“It is significant to note that the driver of the truck / trailer has not examined himself or any witness to prove that he had taken proper care to avoid the accident. The parking lights of the said truck were not on. It was the duty of the driver of the offending truck to put on the parking lights when the truck was stationed on the road…I am holding that there was 100% negligence of the driver of the truck”, the court held.
Case Title: National Insurance Co. Ltd. v. Lauretta Shashi Mogale and Ors.
Citation: 2023 LiveLaw (Bom) 587
The Bombay High Court held that arrears cannot be considered while calculating a person's salary for the purpose of compensation for a motor accident.
Justice Shivkumar Dige, while upholding enhancement of compensation to the family of a deceased in an accident, deducted the amount of arrears mentioned in his salary slip while calculating monthly income.
“This salary slip shows the arrears of Rs.8,900/- but Tribunal has considered this amount as salary of the deceased. In my view, arrears cannot be considered as salary. Hence, I am deducting this amount from the salary of deceased”, the court stated.
Case Title: HDFC ERGO General Insurance Company Ltd. v. Nayajoddin Nijamuddin and Ors.
Citation: 2023 LiveLaw (Bom) 595
The Bombay High Court ruled that an insurance company, despite cancelling the policy, remains liable under the 'pay and recover' principle if the vehicle owner was not notified about such cancellation before the accident date.
Justice Kishore C Sant sitting at Aurangabad dismissed an appeal filed by HDFC Ergo contesting a judgment of the Motor Accident Claims Tribunal, Jalgaon, directing it to pay compensation to the family of the deceased in a motor accident and recover the amount later from the vehicle owner.
“the appellant could not produce evidence to show that the intimation of cancellation of policy was received by the insured prior to the date of accident. It is the case of the appellant that the intimation was sent to the insured. However, said intimation was not served for want of complete address. The fact remains that the intimation of cancellation of policy was not received by the insured”, the court observed.
Railway Accidents Compensation
Case Title: Shobha w/o Deepak Thakre and Ors. v. Union of India
Citation: 2023 LiveLaw (Bom) 8
The Bombay High Court held that an accident while boarding a train in an inebriated state would disentitle a person from receiving compensation under the Railways Act of 1989.
Justice Abhay Ahuja of the Nagpur bench dismissed an appeal filed by 38-year-old deceased Deepak Thakare's wife Shobha against an order of the Railway Claims Tribunal, Nagpur dated 14th June, 2019. The appeal was filed under section 23 of the Act. The court observed that the MLC report from the community health centre showed the deceased had an alcoholic breath indicating he was intoxicated while boarding the train. This report was signed by an officer on duty and also not denied by the applicant. The tribunal is correct in holding that the case of the appellants would fall under exception (d) to section 124A of the Railways Act, the court observed.
Case Title: Kantabai v. Union Of India
Citation: 2023 LiveLaw (Bom) 13
People fall from trains in India, injure themselves and die, the Bombay High Court observed and awarded compensation to the kin of a senior citizen who fell off a running train and died in a brutal accident case after a visit to his son in 2011.
While the family claimed that heavy rush in the train had caused the fall, the railways contended that there was no jerk or chain pulling that could have led to an accident. Moreover, no one had reported any untoward incident, therefore the family shouldn't be granted compensation under section 124A of the Railways Act.
Justice Abhay Ahuja observed that merely because there wasn't evidence of a jerk or chain pulling incident didn't mean that the appellant hadn't died in an untoward incident as defied under Section 123(c)(2).
44 Years After Railway Accident, Bombay High Court Upholds ₹51K Compensation To Mother Of Deceased
Case Title: Union of India and Anr. v. Umraobi W/o Saiyed Munir and Ors.
Citation: 2023 LiveLaw (Bom) 428
The Bombay High Court upheld an award of compensation of Rs. 51,000 to the mother of a 24-year-old man who died in a railway accident 44 years ago involving the collision of a truck and a train engine.
Justice PK Chavan observed that the accident was caused due to the negligence of railway staff.
“It is clearly an act of negligence on the part of the employees of the appellants as it appears from the evidence that there was no proper communication between the switchman and the gateman as well as by the concerned Railway station. Had there been proper communication, there would have been an advance intimation to the gateman about passing of the engine”, the court observed.
Maharashtra Village Panchayat Act
Candidate Won't Incur Disqualification Under Maharashtra Village Panchayats Act If Child Born After Cut-Off Date Is No More: Bombay High Court
Case Title: Vaishali Chaburao Katore v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 81
The Bombay High Court held that a child who was born after the cut-off date but passed away before nomination, would not be counted to disqualify the parent from contesting panchayat elections under the Maharashtra Village Panchayat Act, 1959.
Justice Arun R. Pedneker of the Aurangabad Bench set aside the authorities' order disqualifying a woman on the ground that she had more than two children after the cut-off date.
[Maharashtra Village Panchayat Act] Sarpanch Not Disqualified For Holding Consecutive Meetings: Bombay High Court
Case Title: Manohar s/o. Dnyaneshwar Pote v. Collector, Jalna and Ors.
Citation: 2023 LiveLaw (Bom) 124
The Bombay High Court held that there is no statutory violation by a Sarpanch conducting Gram Sabha meetings consecutively as the Maharashtra Village Panchayat Act, 1958 does not provide for holding Gram Sabha meetings in a particular way.
Justice Arun Pednekar of the Aurangabad bench set aside the disqualification of the Sarpanch of a village in Jalna District who held four Gram Sabha meetings in a short period.
Maharashtra Panchayat Act | Collector Has Exclusive Jurisdiction To Determine If Election Candidate Disqualified Due To False Caste Claim: High Court
Case Title: Archana W/o. Ananda Shembalwad v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 214
The Bombay High Court held that the Collector has exclusive jurisdiction to determine whether an electoral candidate is disqualified from Panchayat membership due to submission of false caste certificate under the Maharashtra Village Panchayat Act, 1958.
Justice Arun R Pedneker of the Aurangabad bench, while dismissing a woman's writ petition challenging her disqualification from Panchayat membership due to false caste certificate, held –
“Disqualification of a membership is determined under section 16 by the Collector and not by an election petition under section 15. The Collector under section 16 of the Maharashtra Village Panchayat Act has exclusive jurisdiction to deal with the issue of submission of a false claim or a false caste certificate at the time of nomination or non submission of caste validity certificate within the period contemplated in section 10-1A of the Village Panchayat Act.”
Sarpanch Wife Cannot Be Disqualified For Paying Husband For Contract Assigned Before Her Election: Bombay High Court
Case Title: Mankarna w/o. Nagorao Kale v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 276
Holding that a sarpanch cannot be disqualified for making payment to her husband for panchayat work undertaken by him before her election, the Bombay High Court restored the panchayat membership and sarpanch post of a woman who was disqualified.
Justice Arun Pednekar of the Aurangabad bench observed that disqualification under section 14(1)(g) of the Maharashtra Village Panchayat Act, 1958 is incurred by a member only when a contract is granted or extended during his or her tenure as an elected member.
Two Children Limit For Panchayat Members Not Meant To Discourage Re-Marriage, Excludes Step-Children: Bombay High Court
Case Title: Khairunisa Sheikh Chand v. Chandrashekhar Daulatrao Chincholkar & Ors.
Citation: 2023 LiveLaw (Bom) 379
A panchayat member with more than two biological children could be disqualified under the Maharashtra Village Panchayats Act, however, the member's step children wouldn't be a determining factor for the same, the Bombay High Court held.
The court said that the objective of the Section was to disqualify a panchayat member responsible for the birth of more than two children. Therefore, a woman cannot be disqualified because her spouse has two children from his previous wedlock.
According to Section 14(1)(j-1) of the Act - No person shall be a member of a panchayat, or continue as such, who has more than two children unless they were born before the cut-off date.
A division bench of Justices AS Chandurkar and Vrushali Joshi said, “It is not the object of the said provision to discourage re-marriage of a spouse who has more than two children from his/her previous wedlock.”
Sarpanch Removed Due To No-Confidence Motion Can Contest By-Elections To Fill Vacancy Caused By Own Removal: Bombay High Court
Case Title: Rahul S/o Sahdev Lokhande and Anr. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 385
The Nagpur bench of the Bombay High Court held that a Sarpanch who got removed from the post due to a no-confidence motion can contest a by-election conducted to fill the resulting vacancy.
A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that there is no provision in the Maharashtra Village Panchayats Act, 1959 prohibiting such a Sarpanch to contest the by-election necessitated due to their own removal.
Sarpanch/Upa-Sarpanch Election Must Be Conducted Via Secret Ballot Instead Of Show Of Hands If Even One Panchayat Member Demands: Bombay High Court
Case Title: Aarti w/o Santosh Pawar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 492
The Bombay High Court held that the election of Sarpanch/Upa-Sarpanch must be conducted by secret ballot even if just one panchayat member present at the meeting requests election through secret ballot election instead of show of hands.
Justice Kishore C Sant of the Aurangabad Bench held that the method of conducting election cannot be decided by the majority opinion.
“It is, therefore, provided necessary that even if one person asks for secret ballot instead of voting by show of hands, it needs to be held in that way. Whether to hold election by secret ballot or show of hands cannot be let to the will of the majority. The Presiding Officer in this case decided to take voting by show of hands by recording that the majority of the voters demanded voting by show of hands and has committed the error”, the court held.
The court upheld orders setting aside the Upa Sarpanch election of a village conducted by show of hands despite a panchayat member's request for a secret ballot.
Other Civil Cases
'Lawyer Cannot Be Compelled To Disclose Communication With Client': Bombay HC Quashes Summons To Advocate
Case Title: Anil Vishnu Anturkar v. Chandrakumar Popatlal Baldota and Ors.
Citation: 2023 LiveLaw (Bom) 5
Communications between lawyer and client are privileged and a lawyer cannot be compelled to confirm such a communication in a trial even if it is already disclosed to the trial court by another party, the Bombay High Court held while setting aside a witness summons to a lawyer.
Justice Abhay Ahuja was dealing with Senior Advocate Anil Anturkar's plea challenging a witness summons directing him to appear before the Civil Judge, Senior Division, Pune in a Civil Suit.
Facts should not be received in evidence unless they are both relevant and admissible, the court said. Therefore, the documents which are privileged under section 126 or 129 of the Act though relevant cannot be produced or received in evidence, the court said.
Would Not Be Appropriate: Bombay High Court Refuses To Order Postponement Of JEE Mains 2023
Case Title: Anubha Srivastava Sahai v. National Testing Agency and Anr.
Citation: 2023 LiveLaw (Bom) 18
The Bombay High Court refused to restrain National Testing Agency from conducting JEE Mains 2023 examination on the scheduled dates.
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep Marne said that any orders passed to postpone may have a cascading effect and extraordinary circumstances do not appear to exist for restraining NTA from holding JEE (Main) in January 2023. “Lakhs of students must have been preparing for the examination. On the basis of the present PIL on behalf of a child right activist, it would not be appropriate to direct postponement of the examination scheduled pan India.”, the court said.
Bombay High Court Quashes Orders Cancelling Johnson & Johnson's License For Baby Powder Production, Says FDA Action 'Arbitrary'
Case Title: Johnson and Johnson Private Limited v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 19
The Bombay High Court quashed the Maharashtra Food and Drug Administration's orders cancelling Johnson and Johnson's license to manufacture its baby powder at the Mulund factory.
Johnson and Johnson will now be able to manufacture and sell its baby powder.
A division bench of Justice Gautam Patel and Justice SG Dige said FDA's action was unreasonably delayed and therefore arbitrary. "An administrator cannot use a hammer to kill an ant," said the court.
The court said it is not reasonable that the moment one sample from the batch is found not of standard quality, the license is cancelled. "It's an extreme approach. [There is] nothing to show FDA has adopted such a stringent standard with other J&J products or manufacturers," the bench said.
Observing that a watchdog like FDA is necessary, the court however said it cannot protract proceedings for weeks and months.
Gross Irregularities: Bombay High Court Quashes Recruitment Process of Thane Co-operative Bank
Case Title: Sonali Shivram Dupare and Ors. v. Thane District Central Co-operative Bank and Ors.
Citation: 2023 LiveLaw (Bom) 22
The Bombay High quashed the recruitment process of Senior Banking Assistant and Junior Banking Assistant of the Thane District Central Co-operative Bank finding gross irregularities in the recruitment process. The court noted that no affidavit has been filed by any respondent denying the affidavits alleging irregularities. Therefore, it court concluded that there were gross irregularities in the recruitment.
The court reiterated that the word 'may' can mean 'must' or 'shall' in context. When discretion is conferred on a public authority coupled with an obligation, the word 'may' should be construed as a command, the court stated relying on Mohan Singh and Ors. v. International Airport Authority.
Award Against Guarantor Who Is Not Member Of Multi State Co-Op Society, Without Jurisdiction: Bombay High Court
Case Title: Deepti Prakash Ghate v. NKGSB Co. Op. Bank Ltd.
Citation: 2023 LiveLaw (Bom) 25
The Bombay High Court set aside an award passed pursuant to an arbitral reference made under Section 84(1) of the Multi-State Cooperative Societies Act, 2002 (MSCS Act), since the award debtor was not a member of the Co-operative Society.
The bench of Justice Manish Pitale ruled that a dispute, which is not covered under Section 84 (1) of the MSCS Act, would not be capable of being referred to arbitration. Thus, the Court concluded that the arbitral award was rendered without jurisdiction against the petitioner/ award debtor.
The principal borrower, M/s. Erica Healthcare Pvt. Ltd., was advanced a loan and cash credit facility by the respondent Bank, NKGSB Co. Op. Bank Ltd (a Multi-State Co-operative Society). A Deed of Guarantee was executed and the petitioner, Deepti Prakash Ghate, along with other parties, were made guarantors.
EIA Report Doesn't Show Construction Against Rules: Bombay High Court Refuses To Quash BDD Chawls Redevelopment
Case Title: Shirish B. Patel and Anr. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 26
The Bombay High Court refused to interfere in redevelopment of over 207 BDD (Bombay Development Directorate) Chawls at N.M. Joshi Marg, Naigaon and Worli in Mumbai observing that the projects have all the necessary environmental clearances.
“The environmental clearance given by the Competent Authorities, does not demonstrate that the construction activity is against the provisions of any rules and regulations in force. The contention of the Petitioners cannot be accepted.”
Division bench of acting Chief Justice SV Gangapurwala and Justice Santosh Chapalgaonkar disposed of a PIL challenging the redevelopment schemes of the century-old chawls claiming that the redevelopment will jeopardize the health of the residents.
Bombay High Court Refuses To Entertain PIL Seeking Separate Legal Aid Panel For SEBI
Case Title: Prashant Trivedi v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 36
The Bombay High Court refused to entertain a PIL seeking a separate panel of lawyers for matters in Securities and Exchange Board of India, observing that the case has been straightway filed without approaching the Maharashtra State Legal Services Authority or the responsible Authority.
A division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne said, “The PIL cannot be entertained unless the Authorities concerned have denied to entertain the cause of the Petitioner. On record we do not find that a particular person had approached Respondent No.2 for legal aid and was denied. In absence of specific pleadings in that regard, it would not be appropriate to pass orders in the present PIL”.
SEBI earlier filed an affidavit stating that the IPEF Regulations and Guidelines in respect of legal aid for legal proceedings are in existence since 2009. Further, it stated that legal aid is provided whenever the need arises.
Bombay High Court Upholds Pune RTO's Refusal To Grant License To Bike Taxi Aggregator Rapido
Case Title: Roppen Transportation Services Pvt. Ltd. and Anr. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 37
The Bombay High Court today rejected a petition by Roppen Transportation Services Pvt Ltd (Rapido), a bike-taxi aggregator, against Pune RTO's refusal to grant it a license for plying two and three-wheeler taxis.
A division bench of Justice GS Patel and Justice SG Dige pointed out that there are discrepancies in Rapido's stand as on one hand, it is saying license cannot be rejected on the ground of the absence of State policy on two-wheelers while on the other hand, it cites the absence for a state policy for non-compliance with the Motor Vehicle Aggregator's Guidelines 2020 issued by the Centre.
The court added that the Centre's Motor Vehicle Aggregator Guidelines, 2020 guidelines do not restrain the State Government from making its guidelines. It added that an aggregator cannot assume permission to ply.
Administrator Could Not Have Taken Policy Decision After Yes Bank Reconstruction: Bombay HC While Quashing Write Off Of AT-1Bonds
Case Title: Axis Trustee Services Limited v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 45
The Bombay High Court set aside Yes Bank's decision to write of Additional Tier 1 bonds Rs. 8415 Crore value observing that the RBI appointed Administrator could not have taken such a policy decision after the bank already stood reconstituted.
A division bench of acting Chief Justice SV Gangapurwala and Justice S. M. Modak, while deciding a batch of petitions filed by the bond holders, noted that the final reconstruction scheme sanctioned by the central government did not contain any provision for writing down AT-1 bonds.
Right to Choose Mother's Alone, Not Medical Board's; Court Can't Abrogate Her Right: Bombay High Court Allows Medical Termination of 33-Week Pregnancy
Case Title: ABC v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 46
The decision to terminate a pregnancy is the woman's alone after a severe foetal abnormality is found irrespective of the length of the pregnancy, the Bombay High Court held while allowing a married woman to terminate her 33-week pregnancy against the advice of the Medical Board. The bench noted that the Medical Board had advised against the termination merely because the pregnancy is at an advanced stage. The court, however, said if termination is refused it would not only be condemning the foetus to a less than optimal life, but would also be condemning the mother to a future that would certainly rob her of every positive attribute of parenthood.
Decide On Real Estate Proposals For Environment Clearance In Accordance With DCPR-2034: Bombay High Court To SEIAA
Case Title: NAREDCO West Foundation v. Union of India
Citation: 2023 LiveLaw (Bom) 57
The Bombay High Court directed the Maharashtra State Environment Impact Assessment Authority (SEIAA) to re-start deciding proposals pending before it for environmental clearance on a petition by NAREDCO, a self-regulatory real estate body.
The court of ACJ SV Gangapurwala and Sandeep Marne ordered that all project proposals should be considered in accordance with the new Development Control and Promotional Regulations 2034 and unified development regulations for Maharashtra within eight weeks.
“prima facie there appears to be deviation in the exact location at which open recreational spaces is to be provided. Therefore, SEIAA is required to take into consideration the provisions of DCPR 2034 or UDCPR as applicable, in order to determine permissibility of provision of open recreational spaces on podium level in a particular project. The judgment and order dated 13 September 2022 of NGT in case of Anil Tharthare vs. The Secretary, Environment Dept. State of Maharashtra & Ors. cannot be construed to mean a blanket prohibition to consider the proposals of the projects governed by DCPR 2034 or UDCPR”
Liquor Ban For A Long Period Violates Merchants' Right To Livelihood: Bombay High Court Limits Prohibition To MLC Polls Voting Day
Case Title: All India Wine Producers Association v. Deputy Secretary and Assistant Chief Election Officer, Maharashtra State & Ors.
Citation: 2023 LiveLaw (Bom) 58
The Bombay High Court reduced the four-day ban on liquor sale in Thane, Palghar, Raigad and Nashik districts due to Maharashtra Legislative Council graduate constituencies elections to just the day of voting observing that a longer ban would violate the merchants' right to livelihood under Article 21 of the Constitution.
“Imposing a prohibitory ban for long period on merchant establishments and establishments which provide livelihood is contrary to the enshrined principles under Article 21 of the Constitution of India and whenever such thing happens, the Authorities need to be thoughtful”, the court stated.
Justice Milind Jadhav directed that the ban be restricted to only January 30, 2023, i.e., the day of voting.
No Locus Standi: Bombay High Court Imposes ₹10K Cost On Nasik Resident For Challenging Permission For Opening Of Country Liquor Bar In Residential Area
Case Title: Rahul Giridhar Pathade v. Collector of Nasik, State Excise Department and Ors.
Citation: 2023 LiveLaw (Bom) 65
The Bombay High Court imposed Rs. 10,000/- cost on a petitioner who had objected to opening of a Country Liquor Bar in his neighbourhood, observing that he has no locus standi and his allegations hamper the business owner's right to carry on trade.
Justice Milind N. Jadhav, while dismissing the writ petition, said the manner in which the Petition has been drafted is an abuse of the process of law. The petition had challenged Nasik Collector's decision to allow a restaurant and bar-owner's application for shifting of CL III license (License for retail sale of Country Liquor) from existing premises to the new premises.
Instakart Not Dealer, Agent Or Importer Under Maharashtra Municipal Corporation Act; Not Liable To Pay Local Body Tax: Bombay High Court
Case Title: M/s. Instakart Services Private Limited v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 68
The Bombay High Court held that Flipkart's delivery partner Instakart is not an importer, commission agent or a dealer under the Municipal Corporation Act, 1888 and is not amenable to Local Body Tax (LBT).
A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani while setting aside Pune Municipal Corporation's notice asking Instakart to register for assessment of LBT held that Instakart is doing import of goods for the purpose of delivery to some other person and hence acts like a courier, postman, or delivery person.
Can't Prevent Bidder From Participating In Tender Process On Ground Of Pendency Of Proposal For Blacklisting: Bombay High Court
Case Title: M/s. Nanak Construction v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 69
The Bombay High Court directed the Nagpur Zilla Parishad to consider a construction firm's bid for various works, observing that it could not be disqualified merely because the State is considering blacklisting it.
A division bench of Justice A. S. Chandurkar and Justice Vrushali V. Joshi noted that the order of blacklisting is not in existence and even according to the Zilla Parishad the proposal of blacklisting the petitioner is pending with the state government. In absence of any order of blacklisting petitioner cannot be prevented from participating in the tender process, the court held.
The court directed the Zilla Parishad to consider the petitioner's bids according to the tender notice. The bids shall not be rejected only because of the communication dated December 30, 2022, the court said.
Body Building Competition A Secular, Neutral Activity; Won't Aggravate Differences Between Shiv Sena Factions: Bombay High Court
Case Title: Vijay Jagannath Salvi v. Kalyan Dombivali Municipal Corporation and Anr.
Citation: 2023 LiveLaw (Bom) 70
The Bombay High Court permitted a member of the Uddhav Thackeray-led Shiv Sena to organise a bodybuilding competition, observing that it is a secular activity and does not aggravate differences between two political parties.
A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani, while quashing Kalyan-Dombivli Municipal Corporation's (KDMC) communication withdrawing the permission, held that organising a sports event like body building competition cannot be considered as aggravating existing differences.
The court said the concerned officer of KDMC has not explained the nature of the alleged differences (as contemplated in the Clause 1 of the chapter General Conduct) between the two factions of Shivsena. The court further said that the communication has been issued without giving any opportunity of hearing to the petitioner, who is a member of the Shivsena party.
'Safety & Hygiene For Schoolgirls Paramount': Bombay HC On Startup's Plea To Relax Tender Conditions For Sanitary Napkin Disposal Machines
Case Title: Kirvan Vendsol Pvt. Ltd. v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 71
Noting that the safety and hygiene of a girl child was paramount, the Bombay High Court dismissed a start-up's petition seeking relaxation of certain tender conditions regarding sanitary napkin vending and disposal machines to 9,940 schools across the State.
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep Manre was dealing with a petition by Kirvan Vendsol Pvt Ltd alleging that the requirement of a minimum turnover of Rs. 12 crore and minimum three-year experience made them ineligible to participate in the tender process.
“As the project is for safety and hygiene practice for schoolgirls... naturally the predominant factor to be kept in mind by the State is quality," the Bench said.
Bombay High Court Refuses To Direct State To Provide Aid To Snakebite Victims
Case Title: Vaibhav Padmakar Kulkarni v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 74
The Bombay High Court refused to direct the state government to provide financial aid to all snake and scorpion bite victims in the state observing that it is a policy decision, and such direction would encroach on the State Government's jurisdiction.
A division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne, disposed of a PIL seeking directions to the State to grant financial aid to all victims of snake and scorpion bites residing in Maharashtra without discrimination. The court observed that granting financial aid is a matter of policy decision to be taken by the State government under Article 162 of the Constitution.
Non-Creamy Layer Certificate Dispute: Bombay High Court Directs Mumbai University To Grant Admission To OBC Candidate In LLM Course
Case Title: Gaurav s/o Santoshkumar Dhaye v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 75
The Bombay High Court directed University of Mumbai to grant admission to a law graduate in the LLM course, observing that there is no such requirement that Non-Creamy Layer (NCL) certificate application must precede the registration process.
“If we take the averment in the Petition at face value that the rejection was on the ground that the receipt of the fresh application could not be the same date as the closing date of registration process, then the refusal is clearly wrong and cannot be sustained. There is no such requirement that the NCL certificate application must precede the registration process nor is it stated anywhere by how many days it should so precede it. Indeed, there can be no such requirement,” a division bench of Justice G. S. Patel and Justice Neela Gokhale said.
High Court Directs MCGM Commissioner To Decide Fate Of Proposed 'Floating Hotel' In Mumbai
Case Title: Rashmi Developments Pvt. Ltd. v. Municipal Corporation of Greater Mumbai and Ors.
Citation: 2023 LiveLaw (Bom) 76
The Bombay High Court directed the Commissioner of Municipal Corporation of Greater Mumbai (MCGM) to take a final decision regarding grant of permission for construction of a Floating Hotel (Floatel) anchoring off the Raj Bhavan.
The court directed the Commissioner to first decide whether he has exclusive jurisdiction to decide the matter or whether recommendations from the three-member committee formed by the High Court are required.
The Commissioner has to decide the NOC application within four weeks from the date of his decision regarding jurisdiction and within eight weeks from the date of submission of all relevant papers and representation by the petitioner company.
No Fundamental Right To Poison Children, Can't Allow Outsourcing Of Midday Meal Kitchens: Bombay HC Orders Surprise Inspections At Malegaon Schools
Case Title: Anjuman Moinut Tulba & Ors v. Education Officer Primary & Ors
Citation: 2023 LiveLaw (Bom) 77
The Bombay High Court directed the civic body of Malegaon city in Maharashtra to conduct surprise inspections at 27 government aided schools and ascertain if they had operational kitchens and storage rooms to provide midday meals for its students.
A division bench of Justices GS Patel and Neela Gokhale was hearing the schools' petitions seeking directions to the municipal corporation to re-start supplying uncooked grains instead of asking schools to take cooked meals from the centralized community kitchen chains.
“We are not allowing you to outsource the cooking. You don't have the fundamental right to poison children because you are a minority institution…We cannot take the risk,” Justice Patel said refusing to even consider the proposition that the schools may by supplied food grains and outsource the cooking.
After hearing all the parties the bench noted in the order, “In the state there is no absolute prohibition on schools preparing its own midday meal. It is equally not necessary for schools to have the infrastructure to prepare their meals and can receive the midday meals.”
Bombay High Court Dismisses PIL Against Vice President, Law Minister Over Remarks On Basic Structure Doctrine, Collegium System
Case Title: Bombay Lawyers Association v. Jagdeep Dhankar & others
Citation: 2023 LiveLaw (Bom) 79
The Bombay High Court on Thursday dismissed a PIL against the Vice President Jagdeep Dhankhar and Law Minister Kiren Rijiju for their constant public criticism of the judiciary's 'collegium system' and remarks against the basic structure doctrine.
Petitioner - the Bombay Lawyers Association sought to restrain them from discharging their duties claiming that the two have disqualified themselves from holding constitutional posts of Vice President and Minister of the Union Cabinet through their conduct, having expressed lack of faith in the Constitution of India.
The petitioner has called the attack on the judiciary as a frontal attack on the constitution and narrated several instances.
“The credibility of the Hon'ble Supreme Court of India is sky high. It cannot be eroded or impinged by the statements of individuals. The Constitution of India is supreme and sacrosanct,” the division bench of ACJ SV Gangapurwala and Justice Sandeep Marne said.
'Will Benefit Large Sections Of Population': Bombay HC Permits Felling 350 Mangrove Trees For Vadodara-Mumbai Expressway
Case Title: National Highways Authority of India v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 80
The Bombay High Court allowed felling of mangrove trees within the construction zone of the Vadodara Mumbai expressway observing that the proposed expressway will benefit large sections of the population. The court noted that NHAI has acquired permission from all authorities subject to stringent conditions. For example, the ministry of environment has required compensatory afforestation and to develop a separate nursery to raise at least 1 lakh seedlings of forest species.
SPA Which Gives Option To Resell Shares To Vendor, Not A 'Forward Contract': Bombay High Court
Case Title: Percept Finserve Pvt Ltd & Anr. v. Edelweiss Financial Services Ltd
Citation: 2023 LiveLaw (Bom) 83
The Bombay High Court ruled that a Share Purchase Agreement (SPA), which gives an option to the purchaser to require the seller/vendor to repurchase the shares on the occurrence of a contingency, does not constitute a 'forward contract' and thus, the same is enforceable.
The bench of Justices K. R. Shriram and Rajesh S. Patil, was dealing with an arbitral award, where the Arbitral Tribunal had ruled that the option contained in the SPA was unenforceable since it constituted a contract in derivatives which was not traded on a stock exchange, the same being illegal under Section 18A of the Securities Contracts (Regulation) Act, 1956 (SCRA).
Upholding the order of the Single Judge where it had set aside the arbitral award, the Division Bench held that merely because the contract contains a “put option” in respect of securities, the contract cannot be termed as a trade or contract in derivatives. Thus, the Court held that the option contemplated under the SPA was not prohibited in law.
Challenge To Cooperative Society's Membership Can Only Be Raised Before Cooperative Court, Not State: Bombay High Court
Case Title: Sudam s/o. Ganpat Kothambire and Ors. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 87
The Bombay High Court held that grant of membership of a cooperative society to any person can be challenged only by filing a dispute before the co-operative court under Section 91 of the Maharashtra Co-Operative Societies Act, 1960.
Justice Arun R. Pednekar of the Aurangabad bench observed that such a challenge does not lie under section 79A as State cannot pass any direction in public interest which contravenes Section 23 of the Act.
“Can't Be Party To A Widow Being Thrown Out Of Her House After 50 Years, Where Is The Justice?”: Bombay High Court
Case Title: Shashikala Kishan Yewale v. State of Maharashtra & Anr
Citation: 2023 LiveLaw (Bom) 91
Observing that it couldn't be party to a widow being possibly evicted from her lawfully occupied home of 50 years, the Bombay High Court directed the Maharashtra Housing and Development Authority (MHADA) to add her name as a tenant/occupant of the 160 square feet premises in Mumbai.
The division bench of Justices GS Patel and SG Dige noted that on one hand MHADA had a policy to temporarily accommodate even trespassers but in the present case they were insisting on reserving their rights to evict an old woman, lawfully living in the premises.
Vehicular Toll Is Tax And Not Mere Contractual Debt Between Collection Company And Civic Body: Bombay High Court
Case Title: MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation
Citation: 2023 LiveLaw (Bom) 92
Observing that vehicular toll is a tax and not merely contractual debt between the collection company and the civic body, the Bombay High Court dismissed plea by Mumbai based MEP Infrastructure Developers Ltd. (MEPIDL) challenging recovery proceedings for its failure to pay toll collected by it to the Municipal Corporation of Delhi (MCD).
A division bench of Justices G. S. Patel and S.G. Dige further held that once Tehsildar has directed a bank to freeze the accounts of a defaulter against whom recovery certificate is issued, the bank has no power to invite objections from the defaulter.
Copper Chimney's Right To Operate From Kala Ghoda Outlet Ended With Expiry of Contract, Can't Invoke Force Majeure: Bombay High Court
Case Title: Deluxe Caterers Pvt. Ltd. v. M/s. Narayani Associates
Citation: 2023 LiveLaw (Bom) 109
The Bombay High Court held that invocation of force majeure by Kalaghoda's Copper Chimney restaurant would not lead to extension of the period for which it was authorized to use its premises.
Justice GS Kulkarni observed that the termination clause and force majeure clause are independent and invoking force majeure would not change the term of the contract.
INS Vindhyagiri - MV Nordlake Collision | Liability Can Be Limited At Interim Stage Before Completion Of Trial: Bombay High Court
Case Title: Ms. M. V. Nordlake GmbH v. Union of India
Citation: 2023 LiveLaw (Bom) 112
Ruling that the liability of a vessel owner for an accident can be limited at the interim stage before the completion of the trial, the Bombay High Court limited the liability of German company M.V. Nordlake Gmbh for the 2011 MV Nordlake – INS Vindhyagiri collision in Mumbai.
“Once the suit is instituted, it is not imperative that the order to limit liability can only be after a full fledged trial. The Court is not precluded from passing a decree at an intermediate stage without the trial running its full course…there is no embargo either under the provisions of the Code (CPC) or Rules 1980 (Bombay High Court (Original Side) Rules) to entertain the application for limitation of the liability”, Justice N. J. Jamadar held while deciding a Notice of Motion for limitation of liability.
[Maharashtra Rent Control Act] Court Can Fix Interim Standard Rent Only In A Rent Recovery Suit: Bombay High Court
Case Title: M/s. Perfect Auto v. Santosh Narsingdasji Agrawal
Citation: 2023 LiveLaw (Bom) 116
The Bombay High Court held that a court can fix interim standard rent under the Maharashtra Rent Control Act, 1999 at any stage of a suit for recovery of rent but not in any other kind of suit.
Justice Anil S. Kilor of the Nagpur bench set aside trial court's order fixing interim rent of a shop premises in a suit for fixation of standard rent.
CCI To Decide Whether It Has Jurisdiction To Investigate Alleged Cartelization By Debt Trustee Units Of IDBI, Axis & SBICap: Bombay High Court
Case Title: Trustees Association of India v. Competition Commission of India & Ors
Citation: 2023 LiveLaw (Bom) 121
The Bombay High Court disposed of four petitions challenging Competition Commission of India's investigation into alleged cartelization and price fixing by debenture trustee units of Axis, SBICap and IDBI.
A division bench of Justice G. S. Patel and Justice Neela Gokhale kept all contentions including the issue of jurisdiction open and stated that the CCI will have to decide whether it has jurisdiction over the investigation or not.
The court clarified that if the CCI decides it has jurisdiction, it doesn't have to defer consideration on merits at a later date.
'Newborn' Baby Includes 'Pre-Mature Baby': Bombay High Court Directs Insurer To Pay For Expenses Related To Infant's Care, Imposes ₹5 Lakh Cost
Case Title: Rita Kirit Joshi v. New India Assurance
Citation – 2023 LiveLaw (Bom) 132
In a significant order the Bombay High Court held that a 'newborn' baby would include a 'pre-mature baby' and the insurer would be liable to pay for all expenses related to the infant's care.
It rejected the insurance policy clause which stated that “expenses relating to illness or injury to the new-born” did not include “expenses relating to postnatal care, pre-term or premature care.” “It is distinction without a difference,” the bench said.
Documents Dubious: Bombay High Court Upholds ONGC's Ban On Contractor From Participating In Tender Process
Case Title: Mahendranath Vidyaniwas Trivedi v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 137
Observing that it was a question of a public tender process being subverted by ex-facie dubious documents, the Bombay High Court rejected a contractor's petition against the Oil And Natural Gas Corporation Ltd.
A division bench of Justices Gautam Patel and Neela Gokhale refused to set aside ONGC's order banning the petitioner - Carlton Industries Engineers from participating in any of the bids for six months.
The petitioner was banned after ONGC's enquiry officer concluded that Carlton had submitted a revised Undated Completion Certificate in collusion with the Project Coordinator of work at ONGC with a sole intent to take advantage and get themselves qualified for tender.
“…The undated certificate seems to shower compliments on the Petitioner, apart from wishing him great success and all good luck. To say that we have never seen ONGC or its officers acting in so magnanimous fashion with any contractor might be a great understatement,” the bench observed.
The court also said there were disputed questions of fact which couldn't be adjudicated in the petition under Article 226 of the constitution.
Bombay High Court Dismisses PIL Seeking Probe Into Uddhav Thackeray's Alleged Disproportionate Wealth
Case Title: Gouri Abhay Bhide and Anr v. Union of India and Anr.
Citation: 2023 LiveLaw (Bom) 140
The Bombay High Court dismissed a PIL seeking CBI and ED investigation into the alleged "disproportionate" wealth of Maharashtra's ex-CM Uddhav Thackeray, his wife and two sons.
"We hold this petition is an abuse of the process of the law," a division bench of Justices Dhiraj Thakur and Valmiki Menezes said imposing Rs. 25,000 cost on Dadar residents Gouri Bhide (38) and Abhay Bhide (78).
The bench found the petition to be "bereft of any evidence", much less evidence which would give a basis to come to a conclusion that a prima facie case was made out for the CBI or any other agency.
CM Eknath Shinde Has No Power To Interfere With Decision Of In-Charge Minister On Subject Matter Assigned: Bombay High Court
Case Title: Chandrapur District Central Co-operative Bank Ltd. and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 147
The Bombay High Court held that the Chief Minister of Maharashtra does not have independent powers to interfere with the subject assigned to another Minister.
Justice Vinay Joshi and Justice Valmiki SA Menezes of the Nagpur bench quashed CM's order staying the recruitment process of the Chandrapur District Central Co-operative Bank observing that the subject fell under the authority of the Minister of Co-operation.
The court added that there must be express provision authorizing the CM to act on a matter assigned to a particular Ministry. Further, under the Maharashtra Government Rules of Business and Instructions the Minister is not subordinate to the Chief Minister regarding independent functioning of a department assigned to him, said the court.
Winning Bidder Cannot Challenge Tender Cancellation After Accepting Refund Of Deposit: Bombay High Court
Case Title: Ram Omprakash Patil v. Secretary, Government of India and Ors.
Citation: 2023 LiveLaw (Bom) 158
The Bombay High Court held that once the winning bidder of a tender accepts the refund of deposit paid to confirm the contract without any reservation, he cannot challenge the cancellation of the tender as the contract would stand rescinded.
A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne upheld the cancellation of Central Government's tender for sale of an agricult
Mumbai Gets Heavy Monsoon, Better Tech For Rehabilitation Of 100 Yrs Old Storm Water Drains Can't Be Avoided Merely Due To Extra Cost: Bombay High Court
Citation: 2023 LiveLaw (Bom) 171
The Bombay High Court held that use of best possible technology to rehabilitate 100 years old storm water arch drains in Mumbai is of paramount importance as Mumbai receives heavy monsoon every year.
A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne added that merely because the better technology involves extra cost compared to other available technology, use of the better technology cannot be avoided.
Custom Authorities Don't Have Any Power To Seal Immovable Property: Bombay High Court
Case Title: Kalpesh Ghevarchand Jain v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 174
The Bombay High Court held that the Custom authorities do not have any power to seal the premises of a person allegedly involved in smuggling goods.
A division bench of Justice Sunil B Shukre and Justice Kamal Khata in a writ petition held, “…we find that there is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property.”
Bombay High Court Refuses To Interfere With RBI Circular Permitting Only One Active Current Account If Total Credit Facilities Availed Exceed ₹50 Crore
Case Title: VJ Jindal Cocoa Pvt Lt v. Union of India & Ors.
Citation: 2023 LiveLaw (Bom) 186
The Bombay High Court has upheld HDFC Bank's email that led to the freezing of current accounts held by cocoa manufacturer VJ Jindal Cocoa in various banks observing that since its “exposure” was over Rs. 50 crore it wasn't permitted multiple active current accounts.
'Exposure' in the present context means the total credit facilities availed by a borrower.
A division bench of Justices Gautam Patel and Neela Gokhale dismissed VJ Jindal's petition to undo HDFC's action on the ground that it was exempted from the relevant RBI circular since its current accounts with other banks pre-dated the HDFC account.
Drug Manufacturer Can't Be Held Liable For Not Meeting Standards Prescribed After Date Of Manufacture: Bombay High Court
Case Title: Kirti Kumar Jayantilal Patel v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 190
The Bombay High Court held that manufacturer of a drug cannot be prosecuted for manufacturing drugs which do not fulfil such standards that were notified by the government after the date of manufacture.
Justice Kishore C Sant of the Aurangabad bench set aside order of process against the manufacturer of Mediplus Scalp Vein Set, a device used for intravenous injections or taking blood samples observing –
The court noted that scalp vein set was notified as a "Drug" and standards were prescribed for it by the government in 2005 while the sample collected by the Drug Inspector was manufactured in 2004.
Bombay High Court Dismisses Former BMC Corporator's Plea Challenging Civic Ward Count Reversal By Eknath Shinde Led Maharashtra Govt
Case Title: Raju Pednekar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 197
The Bombay High Court dismissed pleas against an Ordinance issued by the CM Eknath Shinde led Maharashtra government and subsequent Act to reduce the number of civic wards back from 236 to 227.
“(impugned legislations) cannot be found to be manifestly arbitrary, irrational and unconstitutional, nor could they be found to be actuated by any political consideration or motive," the division bench comprising Justice SS Shukre and Justice MW Chandwani held.
"Considerable Inflow Of Public Income To Deity": Bombay High Court Dismisses Pleas Claiming Jagdamba Tuljapurchi Temple Is 'Private Temple'
Case Title: Vijay Arjun Bhagat v. Kisan Lahanu Bhagat (deceased) and Ors.
Citation: 2023 LiveLaw (Bom) 216
The Bombay High Court declared that the Jagdamba Tuljapurchi Devi Temple in Burhannagar of Ahmednagar District is a place of public religious worship as historically the public has had free access to it.
Justice Sharmila U Deshmukh of Aurangabad bench dismissed three writ petitions by the heirs of the original trustee of the Temple claiming it is a private temple and seeking de-registration of the temple trust.
The court noted that there was a substantial flow of public money to Palkhi and there is no mention of any other source of income for the Bhagats' ancestors apart from the offerings made to the temple and the Palkhi. This strongly indicates that the temple was constructed out of public funds, the court said. The court further noted that the expenses of maintaining the temple are met out of the public funds.
The court opined that the proceedings were of 1954 and hence it cannot be said with certainty that there was no separate order of registration. It has to be presumed that the required procedure was duly followed, and it is not open for the Bhagats (family of the original trustee) to contend that there was no enquiry and separate order after a lapse of almost 54 years, the court held and concluded that all essential procedure was followed in the registration of the trust.
Bombay High Court Orders Maha Govt To Direct Educational Institutions To Enable Retrospective Name & Gender Change For Transgender Persons
Case Title: X v. The Dean & Anr
Citation: 2023 LiveLaw (Bom) 217
The Bombay High Court asked the Maharashtra Government to issue directions to all educational institutions in the state to enable retrospective name and gender change for transgender persons in their records.
A division bench of Justices Gautam Patel and Neela Gokhale observed that educational institutions should have a form on their websites for precisely such changes, i.e., noting a change in name and a change in gender.
The court disposed of the plea of an alumni from the Tata Institute of Social Sciences (TISS) who sought changes in their records with the institute and re-issuance of their education documents and degree certificate with their new name and gender.
Malls Can Temporarily Utilize Their Open Spaces For Visitors' Leisure: Bombay High Court Directs BMC To Allow Mall To Hold 3-Day Ice Cream Fest
Case Title: R Mall Developers Pvt. Ltd. & Anr. v. Municipal Corporation of Greater Mumbai
Citation: 2023 LiveLaw (Bom) 218
Observing that visitors of a mall get enjoyment not only from shopping but also from areas like the food area, play area, amusement/cinema etc., the Bombay High Court directed the BMC to permit to Ghatkopar's R City Mall to hold a 3-day ice cream fest in its open space.
A division bench of Justice GS Kulkarni and Justice RN Laddha held that organising a limited festival in the Mall's open space for leisure and amusement of visitors is not objectionable.
Spouse's Consent Not Necessary For Organ Donation Especially When Withheld For Extraneous Reasons: Bombay High Court
Case Title: Prasanna Laxmikant Joshi and Anr. v. State of Maharastra and Ors.
Citation: 2023 LiveLaw (Bom) 219
Spouse's consent is not a mandatory requirement for organ donation under the Transplantation of Human Organs and Tissues Act, 1994 especially if the consent it being withheld unreasonably or for extraneous reasons, the Bombay High Court held.
A division bench comprising Justices Gautam Patel and Neela Gokhale allowed a 55-year-old Pune resident to donate one of his kidneys to his sister's husband (aged 65) despite objections from his estranged wife.
Caste Validity Certificates Obtained After Admission: Bombay High Court Orders One Time Regularisation Against Reserved Seats
Case Title: Areeb Hasan Ansari Najeeb Hasan Ansari v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 223
The Bombay High Court regularized the admissions of students in various health science institutes as a one-time measure. The Admission Regulation Authority (ARA) had cancelled their admissions under reserved categories as they did not have validity certificates at the time of admission.
A division bench of Justice Ravindra V Ghuge and Justice Sanjay A Deshmukh sitting at Aurangabad also imposed costs on the institutes for admitting the students against the rules and not communicating ARA's decision to the students.
Eating House License Doesn't Automatically Include License To Serve Hookah: Bombay High Court
Case Title: Sayli B Parkhi v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 226
The Bombay High Court held that an Eating House Licence granted to a restaurateur doesn't deem to include a permit to serve 'Hookah' or 'Herbal Hookah' under section 394 of the Mumbai Municipal Corporation Act.
Holding otherwise would lead to “absolute nuisance” especially since neither an eating house nor the civic body can control the ingredients of hookah once it is served to the customer, a division bench of Justice GS Kulkarni and RN Laddha said.
Bombay High Court Issues Directions For Expeditious Disposal Of Creditors' Applications U/S 14 SARFAESI Act For Possession Of Secured Assets
Case Title: L & T Finance Limited v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 229
Pendency of secured creditors' applications for possession of secured assets is bad for financial health of the country, the Bombay High Court held.
A division bench of Justice Nitin Jamdar and Justice Abhay Ahuja issued several directions to streamline the process of disposal of applications under Section 14 of the SARFAESI Act before Chief Metropolitan Magistrates and District Magistrates.
Admiralty Act 2017 | Agent's Indemnity Claim Against Vessel For Unpaid Port Dues Is A Maritime Claim: Bombay High Court
Case Title: MV Golden Pride v. GAC Shipping (India) Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 237
The Bombay High Court held that the agent of a ship seeking indemnity against the shipowner for unpaid port dues is a Maritime claim, and the High Court can entertain it under Section 4 of the Admiralty Act, 2017.
A division bench of Justice KR Shriram and Justice Rajesh Patil held the words “arising out of” in section 4(1) (HC jurisdiction over maritime claim) have a wide meaning and would include an agent's indemnity claim against the vessel over unpaid port dues.
Issuance Of A Few Rent Receipts By Owner To The Occupants Of Requisitioned Premises Does Not Amount To A Landlord Tenant Relationship: Bombay High Court
Case Title: Alice D'souza v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 238
The Bombay High Court directed the Maharashtra government to handover possession of two South Mumbai flats back to the owner, a 93-year-old woman, over eighty years after they were requisitioned in 1942.
A division bench of Justice RD Dhanuka and Justice MM Sathaye held that the original legal relationship between the owner and the occupants of the requisitioned flats would not change merely because of Payment of rent by the occupant and the acceptance by the owner.
“issuance of a few rent receipts by owner to the occupants in case of requisitioned premises, does not amount to change of legal relationship between them or any admission of landlord tenant relationship, especially when non-handing over of possession to Owner, has resulted in the said premises remaining under requisition”, the court held.
Advocates Should Prioritise Legal Aid Matters, Litigants Can't Be Deprived Quality Legal Services Due To Economic Capacity: Bombay High Court
Case Title: Pravin Naik v. Shrinivas Prabhu Dessai
Citation: 2023 LiveLaw (Bom) 246
Advocates should prioritise matters taken under Legal Aid Scheme even though other matters may pay more, the Bombay High Court stated.
Justice Mahesh Sonak sitting at Goa remarked that the legal community and the judiciary owe this service to litigants who cannot afford an advocate.
The court was dealing with an appeal against order of Ad-hoc District Judge, Margao dismissing a Regular Civil Appeal. Neither Naik nor his advocate was present and the civil appeal was dismissed due to non-appearance on October 9, 2019.
Though past diligence is relevant, it could not be the chief ground to not even consider the appellant's explanation for absence, the court held.
Therefore, the court directed Naik to the offer costs on Rs. 10,000/- within 4 weeks and restored his Regular Civil Appeal. The court also directed the parties to appear before the appeal court on June 19, 2023 at 2:30 p.m.
Bombay High Court Allows 78 Flat Purchasers To Complete Stalled Residential Project Through Self-Development
Case Title: RNA Palazzo Residents Welfare Association v. East and West Builders and Ors.
Citation: 2023 LiveLaw (Bom) 247
The Bombay High Court allowed 78 flat purchasers to complete construction of RNA Palazzo, a residential project in Kandivali West, Mumbai, which has been stalled for the past 11 years.
Justice RI Chagla passed the order after the developer East and West Builders agreed to the appointment of court receiver and to let the flat purchasers' association complete the project.
“Admittedly there has been no construction activity since the year 2012… The said project is now to be completed by the Plaintiff Association through self-development”, the court stated.
The court also directed Municipal Corporation of Greater Mumbai to grant expeditious approvals for the completion of the project, subject to necessary compliances.
Court Custody Of Secured Asset Can't Be Used As Shield By Debtor To Prevent Creditor From Taking Possession Under SARFAESI Act: Bombay High Court
Case Title: Robin Karamchandani v. Jem and Associates & Ors
Citation: 2023 LiveLaw (Bom) 261
The Bombay High Court held that a secured creditor cannot be prevented from taking possession of a mortgaged property under section 13 of the SARFAESI Act just because the property is custodia legis (in custody of a court).
Justice RI Chagla observed that the court has to assist the secured in taking possession of the secured asset. It particularly directed the court receiver to handover the possession of mortgaged property to Caparo Financial Solutions Limited, who had given a debt to the property owner.
“...considering that the subject mortgaged property is in the custody of this Court, it is for this Court to assist the Applicant in taking possession of the secured asset particularly when the conditions for consent to the Court sale have not been satisfied...In normal course possession of the Secured Asset would be taken from the borrower. However, considering that the subject mortgaged property in the present case is custodia legis, the Judgment Debtor cannot use this as a shield to prevent the Applicant (secured creditor) from taking possession of the secured asset”, the court held.
Bombay High Court Orders Take Down Of Prima Facie Defamatory Videos Against Covishield Manufacturer Serum Institute, CEO Adar Poonawalla
Case Title: Serum Institute of India v. Yohan Tengra
Citation: 2023 LiveLaw (Bom) 267
The Bombay High Court directed two individuals to take down prima facie defamatory content against Covishield vaccine manufacturer Serum Institute of India and its CEO Adar Poonawala in a Rs. 100 crore defamation suit.
The court further restrained them from publishing further defamatory content.
Justice Riyaz Chagla disposed of the interim application filed by SII and Adar Poonawala against social media influencer Yohan Tengra and one Ambar Kori.
“Animals Have Feelings Like Human Beings”: Bombay High Court Denies Interim Custody Of Milching Buffaloes To Owners For Violating Transportation Rules
Case Title: Ansar Ahmad v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 273
The Bombay High Court denied interim custody of over 68 cattle to its owners in a case under the Prevention of Cruelty to Animal Act 1960 (PCA) for failing to follow mandatory norms while transporting the animals.
Even as the owners claimed that they were being denied income from their milching buffaloes, the court ruled that till the end of the trial the buffaloes would remain with the Gaushala. The animals were placed at the Gaushala after they were seized early last year.
Justice GA Sanap dismissed an appeal filed by the cattle owners in two separate pleas observing the gaushalas were better equipped to care for the animals.
Declaration Of Land As 'Slum' Has Widespread Ramifications On Rights Of Owners & Occupiers, Individual Notices Must Be Served: Bombay High Court
Case Title: Allan Sebastian D'Souza and Anr. v. Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal and Ors.
Citation: 2023 LiveLaw (Bom) 275
Observing that the declaration of a land as slum has widespread ramifications on the rights of the landowner, the Bombay High Court held that notice for such a declaration has to be mandatorily served on each owner and occupier of the land.
Justice Arif S Doctor held that if serving a notice under Rule 3 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Rules, 1971 to each owner and occupant is impracticable, it can be dispensed with only after recording compelling reasons by the competent authority.
Bombay High Court Directs State To Allow E-Complaints For Illegal Animal Slaughter
Case Title: JIV Maitri Trust v. Union of India & Ors.
Citation: 2023 LiveLaw (Bom) 285
The Bombay High Court directed the Brihanmumbai Municipal Corporation to prominently display its policy regarding animal sacrifice during religious ceremonies, as well as the e-mail address and toll-free numbers for complaints on its website, at least during festivals where such animals' sacrifice/slaughtering takes place.
The division bench of Acting Chief Justice Nitin Jamdar and Justice Sandeep Marne also directed BMC to make the grievance redressal forum regarding animal slaughters available to the citizens by way of email.
Challenge To Recovery Notice U/S 13(2) SARFAESI Act Lies Before DRT And Not Civil Court, Unless Plaint Alleges Fraud: Bombay High Court
Case Title: Regional Manager, Union Bank of India and Anr. v. M/s Punya Coal Road Lines and Ors.
Citation: 2023 LiveLaw (Bom) 295
The Bombay High Court held that once a secured creditor issues demand notice under section 13(2) of the SARFAESI Act, 2002, the civil court's jurisdiction is barred, and any challenge to the notice comes under the domain of the Debts Recovery Tribunal (DRT).
Justice MS Jawalkar rejected a borrower's civil suit alleging that the bank violated Guidelines on Fair Practices Code for Lenders and Fair Lending Practices Code while classifying the loan account as a non-performing asset (NPA) observing that the borrower can raise these grounds in defence in the bank's recovery suit before the DRT.
The court set aside trial court's order refusing to reject two civil suits by a borrower against bank alleging that the bank acted illegally by not deciding proposal for restructuring of loan accounts as well as violating specific RBI circulars.
Bombay High Court Imposes Rs.50,000 Cost For Last Minute Application For Stay On LOCs To Travel Abroad
Case Title: Sanjay Dangi v. UoI
Citation: 2023 LiveLaw (Bom) 304
The Bombay High Court imposed an Rs. 50,000 cost for a last-minute application for a stay on Look Out Circulars (LOCs) to travel abroad; however, the interim stay was granted on an LOC issued at the instance of the CBI.
The bench of Justice G.S. Patel and Justice Neela Gokhale observed that the parties seeking to stay on any Look Out Circular (LOC) are required to apply to the Court in good time and not attempt to pressurize the Courts.
The court, while expressing its displeasure, stated, "We have previously expressed our displeasure at the manner in which these Applications are being made, with Applicants finalizing their itineraries even before they seek leave of the Court. This is not a question of whether or not there is a right that is violated. In all these applications, it seems that Courts are more or less being taken for granted, that permissions will follow and that matters, and, more importantly, that Applications will be taken up on a priority basis and even out of turn to permit the Applicants to keep to their itineraries. This is not acceptable."
Legal Metrology Act | Bombay High Court Quashes Case Against Raymond CMD For Fabric Package Not Containing Proper Declarations
Case Title: Gautam Hari Singhania v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 308
The Bombay High Court quashed a criminal case against Raymond Group Chairman and Managing Director Gautam Singhania arising out of a cardboard package of Raymond fabric at a Reliance Trends store in Nagpur not having requisite declarations.
Justice GA Sanap of the Nagpur bench held that without specific statements in the complaint regarding Singhania's role in the offence, the magistrate could not have issued process to fasten vicarious liability on the managing director under the Legal Metrology Act, 2009.
Buyer Not Paying On Time Frustrated Contract: Bombay High Court Quashes Specific Performance Decree Of A 2005 Sale Agreement Of Santacruz Flat
Case Title: Girish Vinodchandra Dhruva and Ors. v. Neena Paresh Shah and Anr.
Citation: 2023 LiveLaw (Bom) 310
The Bombay High Court set aside trial court's decree for specific performance of a 2005 contract for sale of a flat in Santacruz, Mumbai observing that such a decree will dislocate several members of the seller's family residing in the flat.
Justice Anuja Prabhudessai, while allowing the owner's appeal against the decree of specific performance, observed there has been a steep increase in the price of the flat since 2005, and the buyers, who were supposed to make payment by October 31, 2005, not doing so frustrated the very purpose of the sale.
The court said that the extension of time with mutual consent was merely a substitution of the original time limit and does not amount to alteration of the basic nature of the contract. “time does not cease to be the essence of the contract with mere extension of the original time period”, the court held.
Mere statement made by power of attorney in absence of documentary evidence is not proof of financial capacity of the plaintiffs, the court held.
'Example Of Degrading Legal Profession' : Bombay High Court Castigates Lawyers For Misleading Court ; Refrains From Action After Apology
Case Title: Lakhan Pralhad Misal v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 317
The Bombay High Court castigated two lawyers for misleading the court to secure bail for their client in an attempt to murder case. The court observed that increasingly lawyers were providing result-driven services putting their own careers at stake.
The court decided to refer the matter to the Bar Counsel for disciplinary action. However, after both erring counsels approached the judge along with officer bearers of the Bar Association and agreed to given an unconditional written apology, the action was withdrawn.
Priority Of The Secured Creditor Over Govt. Dues Under SARFAESI Act, 2002: Bombay High Court
Case Title: Ronak Industries v. Assistant Commissioner
Citation: 2023 LiveLaw (Bom) 322
The Bombay High Court held that priority belongs to the secured creditor in respect of the dues of the Central government, state government, or local authority under Section 26-E of the SARFAESI Act, 2002.
The bench of Justice B. P. Colabawalla and Justice M.M. Sathaye observed that the statute goes quite far, and it is not only revenues, taxes, cesses, and other rates payable to the State Government or any local authority but also those payable to the Central Government that would have to stand in the queue after the secured creditor for payment of its dues.
High Court's Authority Runs Above MLA's: 19 Tenements Demolished After Bombay HC Criticised Political Interference In Slum Redevelopment Project
Case Title: Gyan SP Developers LLP v. Tahsildar 1 (Special Class), SRA and Ors.
Citation: 2023 LiveLaw (Bom) 324
Nineteen tenements in Jogeshwari, Mumbai were demolished on Tuesday after Bombay High Court pulled up the Slum Redevelopment Authority and BMC for stalling the demolition on the basis of a letter by MLC Pravin Darekar to CM Eknath Shinde against the redevelopment scheme.
A division bench of Justice GS Patel and Justice Neela Gokhale had stated on the previous date that the authority of High Court is above that of MLAs, and also warned action against those responsible for any such interference with court orders.
SRA submitted a compliance report by the Tehsildar, SRA, stating that demolition of the nineteen structures has been carried out as scheduled on July 4, 2023.
Petroleum Rules 2002 | Pendency Of Suit For Lease Renewal Doesn't Confer 'Right To Site' For Storing Petroleum After Lease Expiry: Bombay High Court
Case Title: Vijay S/o. Harinarayan Choudhary v. M/s. Indian Oil Corporation Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 328
The Bombay High Court held that after expiry of lease, pendency of civil suits between landowner and leaseholder would not give the leaseholder right to store petroleum on the site under Rule 152(1)(i) of the Petroleum Rules, 2002.
A division bench of Justice Rohit B Deo and Justice MW Chandwani sitting at Nagpur quashed the license granted to the Indian Oil Corporation Limited (IOCL) for operating a petrol pump on a plot in Nagpur.
Bombay High Court Refuses To Quash Admission Process For MBA/MMS Courses Through CET 2023
Case Title: Jay Pramod Rikame and Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 330
The Bombay High Court refused to quash the results of the Maharashtra Common Entrance Test (CET) 2023 and process for admission to MBA/MMS courses observing that normalization of scores is necessary, and no candidate can demand it not be done at all or be done at his convenience.
A division bench of Justice GS Patel and Justice Neela Kedar Gokhale rejected a writ petition filed by 154 students against the admission process, observing that this is an attempt to cancel the exam after participating in the retest (fifth slot) and not obtaining desired results.
Bombay High Court Quashes Scrutiny Committee's Order Cancelling Solapur BJP MP's Caste Certificate, Remands Matter For Fresh Hearing
Case Title: Dr. Jaysiddheshwar Shivacharya Mahaswamiji v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 332
The Bombay High Court quashed an order cancelling caste certificate of Solapur BJP MP Jaysiddheshwar Shivacharya Mahaswami.
A division bench of Justice Sunil B Shukre and Justice Rajesh S Patil remanded the matter back to the Scrutiny Committee for fresh consideration observing that the committee did not follow the mandatory procedure.
“The scrutiny committee has substantially bypassed the mandatory procedure prescribed in the SC and SC Act 2000 and the SC Rules 2012 in passing the impugned order, and, as such has committed a patent illegality in the matter”, the court held.
The court found that the Scrutiny Committee failed to record the necessary satisfaction and denied Shivacharya the opportunity to cross-examine witnesses and the vigilance officer, violating the Maharashtra Scheduled Castes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012.
Bombay High Court To Monitor De-Concretization Of Trees In Thane, Orders To Set Up Helpline For Residents
Case Title: Rohit Manohar Joshi and Ors. v. Tree Authority Thane Municipal Corporation
Citation: 2023 LiveLaw (Bom) 335
The Bombay High Court has decided to monitor the de-concretization work around the roots and bases of trees in Thane city. The Thane Municipal Corporation (TMC) on Wednesday told the court that it will complete de-concretization within 45 days.
A division bench of Acting Chief Justice Nitin Jamdar and Justice Arif Doctor was hearing a PIL seeking de-concretization of tree roots and bases in Thane District.
“Since the learned counsel for the Thane Municipal Corporation states that the work of de-concretization would be commenced immediately and would be completed within 45 days, we intend to monitor the same”, the court said.
The court directed the TMC to establish and to ensure adequate publicity of a helpline number and email address where residents can report trees in need of de-concretization.
Plots Designated As Burial Ground In Development Plan Can't Be Put To Any Other Use: Bombay High Court
Case Title: Melwyn Isidore Fernandes and Others vs State of Maharashtra
Citation: 2023 LiveLaw (Bom) 342
The Bombay High Court directed the Thane Municipal Corporation not to use land designated as burial ground in the city development plan for any other purpose.
A division bench of Acting Chief Justice Nitin Jamdar and Justice Arif S Doctor was hearing a Public Interest Litigation (PIL) regarding inadequate availability of cemeteries for the Christian community in the city. It sought opening of all reserved plots allocated for Christian cemeteries in the Thane city development plan.
“We direct that the plots mentioned in paragraph-6 of the affidavit dated 14 September 2022, which have been designated as Cremation Ground/ Burial Ground/ Smasha Bhumi in the development plan will not be put to any other use other than the one designated in the development plan unless requisite procedure of law is followed for the change of user”, the court directed.
Bombay High Court Quashes Panchayat Resolution Restricting Mobile Tower Construction Over Apprehension Of 'Harmful Radiation'
Case Title: Indus Towers Ltd., Pune (Formerly, Bharti Infratel Ltd., Pune) v. Grampanchayat, Chikhalhol, Tal. Khanapur, Dist. Sangli and Ors.
Citation: 2023 LiveLaw (Bom) 347
Observing that the fears expressed by some villagers about harmful radiation from a mobile tower were unfounded, the Bombay High Court quashed a resolution passed by Chikhalhol Grampanchayat in Sangli District restricting the installation of a mobile tower.
A division bench of Justice Sunil B Shukre and Justice Rajesh S Patit held that the Grampanchayat lacked the authority to issue such a resolution and the apprehension about radiation has already been dismissed in the case of Biju K. Balan and Ors. Vs. State of Maharashtra and Ors (2019) which held that,
“there is no scientific material or data warranting prohibition on installation of mobile tower and that jurisdiction under Article 226 of the Constitution of India cannot be exercised on the basis of apprehensions, which are not rooted in facts and which are not supported by reliable scientific material.
Court also observed that there was no scientific material as of the date of rendering of the judgment, which indicated any identifiable risk of serious harm on account of such radiations.
SARFAESI Act | Secured Creditor May Initiate Recovery Proceedings Against Guarantor Even If Defaulter Is Placed Under Moratorium: Bombay High Court
Case Title: Latif Yusuf Manikkoth v. Board of Directors of the Bank of Baroda and Ors.
Citation: 2023 LiveLaw (Bom) 351
The Bombay High Court held that a secured creditor can initiate proceedings under the SARFAESI Act against the guarantor in case of loan default even when there is a moratorium on action against borrower under section 14 of the Insolvency and Bankruptcy Code (IBC).
A division bench of Justices GS Kulkarni and Rajesh S Patil dismissed a guarantor's writ petition seeking to restrain a bank from acting against it to recover a loan on the ground that National Company Law Tribunal (NCLT) has issued a moratorium on action against the borrower.
“NCLT has declared a moratorium against the action being taken against the Borrower, including the SARFAESI proceedings. However, the Secured Asset is owned by the Petitioner/Guarantor. Therefore, according to us, as such, the Respondent No.3 /Bank can proceed against the Mortgaged Property of Personal Guarantor as per S.13(11) of the SARFAESI…the bank has not violated the moratorium as ordered by the NCLT, in initiating SARFAESI Proceedings against Petitioner / Guarantor”, the court held.
Final Notification U/S 26A Wildlife Protection Act Not Necessary For Declaring Mhadei Sanctuary As 'Tiger Reserve': Bombay High Court
Case Title: The Goa Foundation v. State of Goa and Ors.
Citation: 2023 LiveLaw (Bom) 354
The Bombay High Court held that there is no legal impediment on the Goa government to declare the Mhadei Wildlife Sanctuary as a tiger reserve even if the final notification under the Wildlife (Protection) Act, 1972 (WLPA) has not been issued declaring some areas within Mhadei as sanctuary.
A division bench of Justice MS Sonak and Justice Bharat Deshpande while directing the State government to notify the Mhadei Wildlife Sanctuary as a tiger reserve within three months clarified that issuing final notification under Section 26-A (declaration of area as sanctuary) is not a prerequisite for declaring a protected area as a tiger reserve.
Bombay High Court Asks Haj Committee To Announce Fares Before Pilgrims Choose Embarkation Point
Case Title: Rubeena Shaheen v. Haj Committee of India and Ors.
Citation: 2023 LiveLaw (Bom) 355
The Bombay High Court asked that the Haj Committee of India (HCoI) to implement its guidelines and announce the fares in advance to enable the pilgrims to choose the nearest economical embarkation point (EP), in a batch of writ petitions filed by 180 Haj pilgrims concerning fares for Aurangabad EP for the Haj Pilgrimage, 2023.
A division bench of Justices Ravindra V Ghuge and YG Khobragade sitting at Aurangabad noted that the EP charges for Mumbai was Rs. 53,043/- while for Aurangabad, it was 1,40,938/- for Haj Pilgrimage-2023.
The court however, refused to order refund to Haj pilgrims who chose Aurangabad as their EP and couldn't change it after rates were announced holding that it did not have the expertise to decide whether the fare for Aurangabad EP was “exorbitantly high”.
No Order On Merits Can Be Passed If Appeal Is Defective For Non-Production Of Certified Copy: Bombay High Court
Case Title: JEM Exporter v. Union of India
Citation: 2023 LiveLaw (Bom) 362
The Bombay High Court held that if the appeal is defective for non-production of a certified copy, failure to deposit, or incorrect signatures, no order on merits can be passed. The appellate authority erred in law in passing an order on the merits.
The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that the Commissioner (Appeal), having not given an opportunity to the Petitioner to cure the procedural defect, was not justified in rejecting the appeal. It would be contrary to the principle of natural justice.
"In our view, justice cannot be denied for failure to comply with the procedure without giving an opportunity to the Appellant to rectify the procedural defects. In our view, the Commissioner (Appeal) ought to have issued a defect memo calling upon the Petitioner to produce the proof of pre-deposit of tax as per section 107(6) of the CGST Act, 2017, for filing the certified copy of the order and for authentication of the appeal memo as per rule 26(2)(a)," the bench observed.
Registrar Cannot Dissolve Cooperative Society's Management Committee Based On Unaccepted Resignations: Bombay High Court
Case Title: Vinayak Ukharam Chavhan v. Divisional Joint Registrar and Ors.
Citation: 2023 LiveLaw (Bom) 364
The Bombay High Court held that Registrar (Co-operative Societies) cannot dissolve the board of directors of a society on account of half of the members of the committee resigning before the society has accepted the resignations.
Justice Kishore C Sant of the Aurangabad bench in a writ petition quashed Registrar's order dissolving the board of directors of a cooperative society whose six out of 12 members resigned at once, observing that the resignations hadn't been accepted by the society.
Bombay High Court Directs Passport Authority To Consider Renewing Shiney Ahuja's Passport For 10 Yrs Pending Appeal Against Rape Conviction
Case Title: Shiney Suraj Ahuja v. State of Maha & others
Citation: 2023 LiveLaw (Bom) 366
The Bombay High Court directed the Passport Authority of India not to withhold the renewal of actor and rape convict Shiney Ahuja's passport on grounds of his pending appeal in High Court.
Justice Amit Borkar observed, “Considering the fact that during pendency of present appeal passport was renewed on more than six occasions and there is no violation of bail conditions, the applicant has made out a case for direction to the passport authority to renew the applicant's passport, provided he is otherwise liable for renewal of passport for ten years.”
Bombay High Court Cancels NOC Of Builder Over Default In Payment Of Transit Rent
Case Title: Sushila Gordhandas Parikh v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 372
The Bombay High Court on Friday cancelled the No Objection Certificate (NOC) granted to Parekh Constructions LLP, developer of a redevelopment project in South Mumbai due to its default on payment of transit rent to the residents of the demolished building.
A division bench of Justice GS Patel and Justice Neela Gokhale ordered Parekh Constructions, Parekh Constructions LLP, and Nishcon Realty Pvt Ltd to entirely vacate the site, including removing personnel, security guards, equipment, and machinery, by Monday, August 14, 2023.
The court directed Maharashtra Housing and Area Development Authority (MHADA) to issue a formal letter for cancellation of NOC without giving any opportunity of hearing to the developers. The court added that it is open for MHADA to proceed in accordance with law for the appointment of another developer.
Bombay High Court Quashes Deportation Order Against Russian National For Breach Of Visa Conditions Without Hearing
Case Title: Olga Rosnina v. Foreigners Regional Registration Office, Goa and Ors.
Citation: 2023 LiveLaw (Bom) 373
The Bombay High Court at Goa set aside a deportation order against a Russian national on grounds of breach of VISA condition observing that it was not a case of threat to internal security of India and authorities should have at least sought a clarification from the woman before ordering her deportation.
A division bench of Justice MS Sonak and Justice Bharat P Deshpande observed that while the Central government has wide powers of deportation, it cannot ignore principles of natural justice and fair play while exercising its powers.
Judgement Pronounced In Open Court But Signed After Transfer Of Judge A Valid Judgement : Bombay High Court
Case Title: Suvarna Ratnakar Taras v. Mangalprabhat Lodha
Citation: 2023 LiveLaw (Bom) 374
A judgement pronounced in open court but signed by the judge after he was transferred is a valid judgement, the Bombay High Court held.
Justice Sharmila Deshmukh relied on several Supreme Court judgements which held that once a judgement was delivered or pronounced in open court, the manner of delivery couldn't be faulted.
The writ petition filed by the petitioner in a partition suit challenged an order setting aside the status quo in her favour on the ground that the judge signed the order after he was transferred. The defendants were Mangal Prabhat Lodha and another.
“Although I am not inclined to accept the submission of the learned counsel for Petitioner that the judgment was signed after transfer of charge in view of the roznama on record and date below the signature, the aforesaid decisions are relied upon to drive home the point that judicial act of pronouncement of judgment in open court was complete and hence no fault can be found in the manner of delivery,” the court held and dismissed the petition.
Bombay HC Disposes Of Plea Seeking Adequate Water Facility For Taloja Prison Inmates After State Govt. Informs About Installation Of Water Tanks, RO Plants
Case Title: Abhay Shamsundar Kurundkar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 377
Maharashtra Government informed the Bombay Hight Court that 20 water tanks of 5,000 litres capacity each have been installed in Taloja Central Prison and installation of 5 RO water purifier plants for drinking water will commence on September 1, 2023.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse thus disposed of a petition filed by an inmate seeking adequate water facility in the jail. The petition alleged that inmates are provided 1-1.5 buckets of 'unclean' water a day for drinking, washing, bathing etc.
Church Patriarchal Tribunal Not A 'Public Authority' Under RTI Act: Bombay High Court
Case Title: Archbishop Patriarch Of Goa Rev. Fr. Filipe Neri Ferrao v. State Information Commission
Citation: 2023 LiveLaw (Bom) 383
The Archbishop Patriarch of Goa in his capacity as the Patriarchal Tribunal or Church Tribunal is not a “public authority” under Section 2(h) of the Right to Information Act, 2005 (RTI Act), the Bombay High Court held.
The decision was passed in an eight years old case regarding information on the Archbishop Patriarch of Goa's appointment. He adjudicates private law matters of Roman Catholics like annulment of marriage.
Justice MS Sonak reasoned that only a body established or constituted by a law made by the Parliament or the State Legislature would fall under RTI, however the Patriarchal Tribunal couldn't be called an authority constituted by the parliament or state legislature.
The court noted that certain laws like the Canon Law made under the Portugal Parliament for its colonies was granted limited recognition under the Goa, Daman and Diu (Administration) Act, 1962. But this recognition didn't mean they were laws constituted under the Parliament or State Legislature.
Municipal Commissioner Duty Bound To Provide Fit And Convenient Place For Disposal Of Dead: Bombay High Court
Case Title: Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 384
The Bombay High Court expressed its concerns regarding the shrinking space for burials in cemeteries in Mumbai and reminded the Municipal Commissioner & Maharashtra Government of their duty to provide such spaces.
The court was hearing a PIL which alleged that all the three spaces in the city originally earmarked by the Municipal Commissioner for cemeteries were either deleted from reservation or being used for some other purpose.
“For a Municipal body as also the State Government, there cannot be any engagement more urgent than finding appropriate space for burial of dead,” the bench of Justices Devendra Kumar Upadhyay and Arif Doctor observed in their order.
The bench added that under Section 436 of the Mumbai Municipal Corporation Act, 1888, it was mandatory upon the Commissioner to find other convenient places for the purpose of burials.
Administrator Appointed U/S 452A Of Maharashtra Municipal Corporation Act Can Exercise All Powers Of The Body Corporate U/S. 5: Bombay High Court
Case Title: Ranjeet Sampatrao Raskar & Ors. v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 387
The Bombay High Court disposed of two PILs challenging proposed de-merger of Uruli Devachi and Phursungi villages from the Pune Municipal Corporation (PMC), and establishment of a separate Municipal Council. The PILs claimed that the state government did not follow the process of consultation with the corporation as per section 3(3)(a) of the Maharashtra Municipal Corporation Act, 1949.
The court held that an Administrator appointed under Section 452A of the Act, possesses the authority to exercise all functions and duties entrusted to the body corporate under Section 5 of the Act.
Advocate General of Maharashtra Dr. Birendra Saraf told the bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor that the state government will rectify any legal deficiency found in the process of consultation with the Corporation before issuing the final notification modifying PMC limits.
Transit Buildings Inherently Temporary Structures, Cannot Be Repaired Or Made Permanent: Bombay High Court
Case Title: Mohan Yeshwant Padawe & Ors v. State Of Maharashtra & Ors
Citation: 2023 LiveLaw (Bom) 395
The Bombay High Court held that transit buildings cannot be repaired or made permanent since they are inherently temporary and designed for short-term use.
The division bench of Justice GS Patel and Justice Kamal Khata added that these buildings were not subject to structural audit regulations.
“Transit buildings are by the very nature of their construction and by structural design temporary and not meant to last beyond three to five years. There is no question of repairs or of these buildings being made permanent. Even the planning permissions that are granted for transit buildings are not granted in the same manner or subject to the same stringent requirements as they are for permanent constructions…the attempt to apply the law on the TAC in structural audits to transit buildings is not only an inversion of law but is a perversion of the law.”
The observation came in a writ petition filed by four residents against demolition notices for a transit building constructed in 2006. The bench found that the buildings were built with a life of five years.
Bombay High Court Permanently Injuncts Investor Mahesh Murthy In Defamation Suit Filed By Zillingo Co-Founder Ankiti Bose
Case Title: Ankiti Bose v. Mahesh Murthy and Anr
Citation: 2023 LiveLaw (Bom) 398
The Bombay High Court granted a permanent injunction against venture capitalist Mahesh Murthy over an article he authored for Outlook Business Magazine against Singapore-based startup Zilingo Pte's former CEO Ankiti Bose.
Bose who was sacked from Zilingo over alleged financial irregularities last year, was granted relief in the defamation suit she filed against Murthy and Outlook. She was however not named in the article.
Justice SM Modak noted that while it may be true that Bose wasn't specifically named in the article, the defendants took a dual stand in their affidavit in reply.
Bombay High Court Appoints Committee To Probe Alleged Illegal Allotments Under Basic Service For Urban Poor Scheme In Kalyan, Dombivali
Case Title: Sandeep Pandurang Patil v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 399
The Bombay High Court set up a committee headed by a retired judge for a “thorough” inquiry into alleged illegal allotment of tenements under the Basic Services for Urban Poor scheme being implemented by the Kalyan-Dombivali Municipal Corporation, located just outside Mumbai.
Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor observed:
“The scheme has a laudable object of not only developing the area but also providing basic infrastructure facilities such as housing and shops etc. to the urban poor; however, as per the allegations, the said scheme has been marred by large scale irregularities.”
Christian Members Of OBC Communities Not Entitled To Reservation Unless Specifically Included In State OBC List: Bombay High Court At Goa
Case Title: Uday Chari v. State of Goa and Ors.
Citation: 2023 LiveLaw (Bom) 408
The Bombay High Court at Goa held that Christian members of a community listed the Goa State OBC list are not entitled to reservation benefits unless the state government specifically notifies the Christian members of the community to be included in the OBC list.
A division bench of Justice MS Sonak and Justice Bharat P Deshpande set aside the caste certificate of a Zilla Panchayat member observing that the notification for including Mesta community in the state OBC list does not include “Christian Mesta”, to which he belongs.
Frame Policy To Regulate Celebration Of Festivals As Per Capacity Of Mumbai's Public Spaces: Bombay High Court Urges State
Case Title: Sachin D. Basare v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 412
The Bombay High Court asked the Maharashtra government to frame a comprehensive policy for public celebration of festivals in Mumbai taking into account the city's increasing population and the limited capacity of its public spaces.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla opined that the current policy does not adequately consider the potential inconveniences and traffic congestion arising from public celebrations in Mumbai's streets and squares.
'Invidious Discrimination Impermissible': High Court Paves Way For High Rise In Mumbai's Fort Heritage Precinct, Strikes Off BMC Condition
Case Title: Shreeji Realty v. Brihanmumbai Municipal Corporation and Ors.
Citation: 2023 LiveLaw (Bom) 415
The Bombay High Court quashed Brihanmumbai Municipal Corporation's (BMC) condition requiring a no-objection certificate (NOC) from the Mumbai Heritage Conservation Committee (MHCC) for the construction of a 69.90-meter-tall building in Mumbai's Fort Heritage Precinct.
A division bench of Justice GS Patel and Justice Kamal Khata observed that no such condition was imposed by the BMC while granting permission for construction of a 60-meter-tall building opposite the concerned property.
The court said that this was a case under Article 14 of the Constitution, which mandates equality before the law and equal protection of laws. The court opined that Condition 38 in the IOD is contrary to Clause 9(D)(b) of the Regulation 52 of DCPR 2034 because that clause does not provide that MHCC NOC is mandatory. It only requires that guidelines may be taken into consideration, giving discretion to the Municipal Commissioner, the court noted.
No Teachers, Principal In College; Classrooms Had Toys: Bombay High Court Upholds Marathwada University's Decision To Withdraw Affiliation
Case Title: Nisargadeep Shikshan Prasarak Mandal v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 420
The Bombay High Court upheld Marathwada University's decision to withdraw the affiliation of Shri Tulja Bhavani Arts and Science College, Aurangabad, due to severe lack of academic and infrastructural facilities.
A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme at Aurangabad, in a writ petition against the university's decision, observed that there were serious lapses in the college and the university had followed proper procedure for withdrawal of affiliation.
Bombay High Court Dismisses Shiv Sena (UBT) MLA Ravindra Waikar's Plea Against BMC Order Revoking Hotel Permission
Case Title: Ravindra Waikar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 423
The Bombay High Court dismissed the petition filed by MLA Ravindra Waikar from Shiv Sena (Uddhav Balasaheb Thackeray) party regarding cancellation of permission granted to him and four others to build a luxury hotel in Mumbai.
The order was passed in chambers by a bench of Justice Sunil Shukre and Justice Rajesh Patil who observed that rules of natural justice were followed BMC issued a Waikar a notice and asked to clarify his position in writing before cancelling construction permission.
"We find that there are no malafides or any lapses on the part of the Corporation in taking the decision impugned in the present Petition," the order read. The court, however, stayed its order for four weeks to enable Waikar to approach the Supreme Court.
Time To Bury Pernicious Practice Of Submitting Information In 'Sealed Cover': Bombay High Court
Case Title: Sonali Ashok Tandle v. Ranka Lifestyle Ventures and Ors.
Citation: 2023 LiveLaw (Bom) 424
Taking a firm stance against practice of parties submitting information in sealed cover to the court, the Bombay High Court refused to accept Income Tax returns and financial statements of a developer in a sealed cover and directed it to file an affidavit for the same.
A division bench of Justice GS Patel and Justice Kamal Khata observed that no court shout permit a litigant to disadvantage the opposing party by submitting material in a sealed cover.
The court further said that filing information in sealed cover when the court has ordered the party to file an affidavit for the information will invite contempt proceedings.
Bombay High Court Imposes ₹3 Lakh Cost On Scrutiny Committee For Delay In Issuing Student's Caste Validity Certificate
Case Title: Iqra Maqsood Ahmed Ansari v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 427
The Bombay High Court imposed cost of Rs. 3 Lakhs on the Chairperson and members of District Caste Certificate Scrutiny Committee, Mumbai Suburban for "extreme stress and inconvenience" caused to a student due to delay in issuance of her caste validity certificate.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla held that the delay, solely attributable to the Scrutiny Committee, should not cause injustice to the student who couldn't submit the certificate to the college authorities in time for her admission.
No Fundamental Right To Privately Create Immersion Pond In Public Park For Ganesh Visarjan: Bombay High Court
Case Title: Shri Durga Parmeshwari Seva Mandal & Ors. v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 429
The Bombay High Court dismissed the plea filed by a former Nationalist Congress Party (NCP) corporator seeking to organise Ganpati immersion in a private artificial pond at a municipal garden at Ghatkopar.
A division bench of Justices GS Patel and Kamal Khata observed,
“No person, let alone a Mandal, has any fundamental — or any other — right to privately create an immersion pond in a public park maintained by the Municipal Corporation. That permission is required, and that this is in the discretion of the Municipal Corporation, is not just undeniable, but is not disputed.”
Set Up New Bio-Medical Waste Plant In Two Years Or Face Action: Bombay High Court Warns BMC
Case Title: Govandi New Sangam Welfare Society v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 433
The Bombay High Court directed that work on a new facility to dispose of bio-medical waste should be commissioned within two years otherwise and all those involved will be held accountable for failure on their part.
According to the petition filed by Govandi New Sangam Welfare Society, the incinerator facility owned by SMS Enviroclean Pvt. Ltd is a cause of major pollution in Govandi, affecting the residents of the area.
“In view of the aforesaid, we direct that the new incinerator facility shall be commissioned within two years from today. All the authorities, including respondent no.5, shall be held accountable in case there is any lapse on their part in establishing the new incinerator facility within two years from today”, the court held
Comity Of Courts Not Weapon To Leave Litigant Remediless: Bombay High Court Stays Singapore Court Order Against Shaadi.com CEO Anupam Mittal
Case Title: Anupam Mittal v. People Interactive (India) Pvt. Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 434
The Bombay High Court temporarily stayed the enforcement of an anti-suit permanent injunction order issued by the Singapore High Court against Anupam Mittal, the founder and CEO of Shaadi.com.
The Singapore High Court order restrained Mittal from proceeding with his petition before the National Company Law Tribunal (NCLT) alleging oppression and mismanagement of People Interactive (India) Pvt. Ltd, the parent company of Shaadi.com.
Justice Manish Pitale observed that disputes regarding oppression and mismanagement are non-arbitrable in India and the principle of comity of courts cannot prevent a litigant from pursuing the only available legal remedy.
Bombay HC Orders Aurangabad Collector To Provide Proper Boats, Life Jackets To Students Crossing Backwaters On Thermocol Rafts To Reach School
Case Title: Registrar Judicial, High Court of Bombay Bench at Aurangabad v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 435
The Bombay High Court directed the District Collector, Aurangabad to provide proper boats with specialised operator, life jackets, and rescue air tubes to children rowing thermocol rafts with makeshift oars to cross backwaters of Jayakwadi dam and reach school.
A division bench of Justice Ravindra Ghuge and Justice YG Khobragade sitting at Aurangabad recommended having at least two boats to operate in multiple shifts, enabling 24/7 access to transportation.
Bombay High Court Comes To Aid Of Woman Stuck With Ex-Husband's Name Wrongly Added To Child's Birth Certificate
Case Title: M v. Navi Municipal Corporation and Anr.
Citation: 2023 LiveLaw (Bom) 440
Expressing surprise at the Navi Mumbai Municipal Corporation's unwillingness to correct the father's name on the birth certificate of a 3-year-old, the Bombay High Court directed the Municipal body to immediately replace the woman's ex-husband's name with the child's biological father's name on the birth certificate.
“We confess we are unable to understand the approach of the Municipal Corporation and, for that matter, that of the JMFC,” Justice GS Patel and Kamal Khata observed regarding the mother's failed attempts before the NMMC and magistrate.
Supreme Court in ABC v. State (NCT of Delhi) said that whenever a single parent or an unwed mother applies for a birth certificate the only requirement should be that she should furnish an affidavit to that effect. The corrected birth certificate must then be issued.
The High Court observed these case laws couldn't have been overlooked by the NMMC and JMFC. “This is the binding law declared by the Supreme Court and the Bombay High Court. The Municipal Corporation is not at liberty to say “there is no law.” There is indeed a law.”, said the court
IBC | Only Whole-Time Members And Not Chairperson Of IBBI Can Pass Order In Disciplinary Proceedings: Bombay High Court
Case Title: Poonam Basak v. Union of India & Ors.
Citation: 2023 LiveLaw (Bom) 447
The Bombay High Court held that only Whole-Time members and not the Chairperson of the Insolvency and Bankruptcy Board of India (IBBI) can pass an order in disciplinary proceedings under IBC.
A division bench of Justice BP Colabawalla and Justice MM Sathaye held that, prima facie, the Chairperson and Whole Time Members were distinct categories, as the nomination of Whole Time Members and the appointment of the Chairperson are separate processes under IBC. The court noted that considering the Chairperson a whole-time member effectively means there are 6 Whole Time Members instead of five on the IBBI board, which would contravene Section 189 of IBC.
Bombay High Court Upholds Constitutional Validity Of Goa Green Cess Act For 'Reduction Of Carbon Footprint'
Case Title: South Port Limited v. State of Goa
Citation: 2023 LiveLaw (Bom) 449
The Bombay High Court at Goa upheld the constitutional validity of the Goa's Green Cess Act which enables the state government to collect cess on the utilisation of pollution causing hazardous products and uses it to reduce the effects of carbon footprint in the State.
The Act is called The Goa Cess on Products and Substances Causing Pollution (Green Cess) Act, 2013 or the Green Cess Act 2013.
A division bench of Justices MS Sonak and Bharat P Deshpande dismissed a clutch of petitions filed by various companies including Goa Carbon Limited and Vedanta Ltd that challenged the Act citing the State's lack of legislative competence to enact such a statute.
The court rejected the petitioner's argument that the cess collected from them didn't specifically benefit the companies. Therefore, it wouldn't be a 'fee,' but a 'tax' beyond the legislative competence of the state.
Bombay High Court Paves Way For Allotment Of Houses To Society Of High Court Employees
Case Title: Milind Dashrath Narvekar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 453
The Bombay High Court cleared the way for construction of housing units for a society of 398 state government employees working in the High Court.
A division bench of Justice GS Patel and Justice Kamal Khata directed MHADA to allot a 2,769.75 square meter plot of land to members of the society without inviting applications from other High Court employees or reserving 50 percent of the flats for public purpose.
The court opined that the petitioners agreed to scale down from their original demand, thus releasing additional areas for the availability of the 50 percent reservation. The court agreed that the imposition of 50 percent reservation condition would result in flats of a meaningless size and potentially exclude eligible members.
Bombay High Court Orders Passport Authorities To Reconsider Former Journalist Jigna Vora's Plea For Passport
Case Title: Jigna Jitendra Vora v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 454
The Bombay High Court frowned at CBI's unreasonable approach while opposing former journalist Jigna Vora's plea for a fresh passport and directed passport authorities to consider her application afresh.
A division bench of Justices Revati Mohite Dere and Gauri Godse took exception to the CBI's constant objection in granting her relief despite no pending appeals against her acquittal.
“The object of Section 437A is to secure the presence of an accused before the higher forum, after the acquittal. The petitioner had infact furnished PR Bond of Rs. 50,000/- before the trial Court. In the present case, the petitioner infact, appeared before the High Court, pursuant to the notice issued in the appeal filed by the CBI. In these circumstances, the CBI ought to have been fair and ought to have accordingly given a report, instead of stating that the case matter is still pending in CBI and her file should not be cleared, when infact, there was no proceeding pending before any Court of law, at the relevant time”, the court observed.
Vora, a former deputy editor of Asian Age newspaper was accused by the CBI of giving crucial information about journalist J Dey to alleged gangster Chhota Rajan, which led to the senior journalist's murder in June 2011. In 2018, a special court found Rajan and eight others guilty under sections 302, 120-B of the IPC and sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (MCOCA) and sentenced them to life imprisonment for Dey's murder. Vora and one more accused were acquitted. Her acquittal was later upheld by the High Court in 2019.
Cause Of Action Arose Partly In Mumbai: Bombay High Court Allows Akasa Air To Proceed In Mumbai Against Pilots Who Left Without Serving Notice Period
Case Title: SNV Aviation Pvt. Ltd. v. Capt. Gareema Kumar
Citation: 2023 LiveLaw (Bom) 458
The Bombay High Court allowed a leave petition filed by Akasa Air, a low-cost airline, seeking permission to proceed against five pilots who resigned from the company without serving their notice period.
Justice SM Modak observed that part of the cause of action arose within the jurisdiction of Bombay High Court as the resignations were accepted by the company in Mumbai.
“...place where resignation was received can be part of cause of action. Sending a resignation through email cannot be sufficient. Ultimately, the company has to take a call on that. Either company may refuse to accept the resignation, or may accept it conditionally, or may accept it for future date. If these options are available to employer and these options can be exercised only when email (of resignation) is received, part of cause of action has arisen in Mumbai”, the court observed.
Bombay High Court Temporarily Restrains Fashion TV From Executing Franchise Agreements In Lucknow Without Making Offer To Current Franchisees
Case Title: Manoj Agarwal and Anr. v. Fashion TV Ltd.
Citation: 2023 LiveLaw (Bom) 462
The Bombay High Court issued an ad-interim direction restraining fashion media company Fashion TV Limited (FTV), from executing franchise agreements in Lucknow with third parties without first offering the franchise to their current franchisees.
Justice Manish Pitale observed that prima facie, despite a First Right of Refusal (FROR) clause in the franchise agreement, FTV executed another franchise agreement with third parties.
“a specific Right of First Refusal in the territory i.e. territory of Lucknow for the period of the agreement, was granted to the petitioners. The effect of the said clauses makes out a prima facie case in favour of the petitioners that if the respondent intended to enter into a further franchisee agreement, the petitioners ought to have been first offered such a franchisee and if the petitioners refused to accept the offer, the respondent could engage with third party”, the court observed.
Bombay High Court Paves Way For Reconstruction Of Dainik Bhaskar Director's House Near INS Trata Without NOC From Naval Authorities
Case Title: Dolby Builders Private Ltd. and Anr. v. Municipal Corporation of Greater Mumbai and Ors.
Citation: 2023 LiveLaw (Bom) 465
The Bombay High Court directed BMC to process within four months the application for permission to reconstruct a three-storey house in Worli for Dainik Bhaskar director Girish Agarwal without requiring a No Objection Certificate from Naval authorities- due to the site's proximity with naval missile battery base INS Trata.
A division bench of Justice Sunil B Shukre and Justice MW Chandwani applied the Wednesbury principle of unreasonableness, and concluded that requiring an NOC for a building of the same height as the previous one, which did not pose security risks, is unreasonable.
The court also quashed four Defence Ministry circulars dated May 18, 2011, March 18, 2015, November 17, 2015 and December 23, 2022 imposing certain restrictions on use of land near “Defence Establishments” such as INS Trata.
Bombay High Court Calls For Conversion Of One Washroom In The HC Building To Make It Disabled-Friendly
Case Title: Maharashtra Rajya Apang Karmachari Sanstha v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 466
The Bombay High Court instructed its registry to propose the conversion of one of the washrooms in the High Court building in Mumbai into a facility that can be used by orthopedically disabled persons in wheelchairs.
Addressing Advocate Uday Warunjikar's submission that the High Court building doesn't have a single washroom accessible to the wheelchair bound persons, the court said –
“We would, therefore, request the registry to consider this difficulty, prepare an appropriate proposal for either conversion of one of the washrooms in High Court building at Mumbai into a washroom to be used for the wheel chaired, orthopedic disabled persons and place it before the appropriate committee for its due consideration as early as possible. Registrar (Original Side) is requested to do the needful”.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla was dealing with a writ petition from 2021 seeking necessary assistive devices and facilities in government establishments in the State.
“I Killed Bapu” Film Produced To Defame Mahatma Gandhi, Claims Petitioner, Bombay High Appoints Panel To Preview
Case Title: Mohammed Atiq Ibrahim Ansari v. Central Board of Film Certification & Ors.
Citation: 2023 LiveLaw (Bom) 477
Bombay High Court appointed a three-member panel to preview the film “I Killed Bapu” to check for objectionable material or any other material with the potential of seriously threatening societal disharmony.
A bench of Justices Sunil Shukre and Firdosh Pooniwalla appointed a committee comprising Chief Justices (Retd) Amjad Sayed, Justice Abhay Thipsay and veteran actor/director Amol Palekar to review the film and submit their report.
“We request the panel to take a preview of the film “ I Killed Bapu” at the place suggested by them and consider whether the film has any such objectionable material or has any potential of seriously threatening societal disharmony and submit its report accordingly to this court, within a period of two weeks of the preview taken by panel, which report shall be without prejudice to the rights and contentions of both sides,” the order stated.
Bombay High Court Dismisses Uddhav Faction MLA Ravindra Waikar's Plea Alleging Discrimination In Development Fund Allocation To Opposition MLAs
Case Title: Ravindra Dattaram Waikar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 480
The Bombay High Court dismissed a plea filed by Shiv Sena (Uddhav Balasaheb Thackeray) group MLA Ravindra Waikar alleging gross discrimination in allocation of Maharashtra Local Development Funds assigned to the Members of the Legislative Assembly (MLA) and Members of the Legislative Council (MLC).
The MLD funds are meant for MLAs and MLCs to develop their respective constituencies are disbursed through the District Planning Commission by the State of Maharashtra.
The division bench comprising Justices Sunil Shukre and Rajesh Patil pronounced the order.
"We have found there is no sufficient material for us to test to fairness of the government's decision to allocate funds," it said.
Since the issue raised pertains to the administrative powers of the state, it can only be examined on Wednesbury's principle of "unreasonableness," the court said.
Bombay High Court Refuses To Reinstate College Student Who Submitted Caste Validity Certificate After Deadline Due To Delay By Scrutiny Committee
Case Title: Bhushan s/o. Sangappa Chaudhari v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 484
The Bombay High Court refused to reinstate the college admission of a student who failed to submit a Caste Validity Certificate on time due to a delay by the Caste Scrutiny Committee in processing his application.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla explained that the fixation of specific dates as deadlines for students was a matter of policy, and the court could only direct authorities to relax the policy when necessary to protect fundamental rights or rectify illegalities. In this case, there was no such necessity.
“…it would be not appropriate on the part of this Court to direct the authorities to restore the admission of the Petitioner on the ground that there was no fault on his part in submitting the Validity Certificate on or before the last date fixed for that purpose”,
The court also held that time frame prescribed in Rule 18(5) of the Caste Certificate Rules, 2012 to process the applications is directory, not mandatory.
Counter Claim For Damages From Tenant No Defence To Escape Admitted Liability Of Refunding Tenant's Security Deposit: Bombay High Court
Case Title: Play Games 24X7 Pvt. Ltd. Vs Loran Leasing And Infotech Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 486
Owner filing a suit for damages from his licensee cannot be the only defense to the admitted liability of refunding a licensee's security deposit, the Bombay High Court held while refusing to grant a company unconditional leave to defend a summary suit.
Justice Kamal Khata directed the owner of a 17,196 sq ft premises in Mumbai - Loran Leasing and Infotech Pvt.- to deposit the entire security deposit of over Rs. 90 lakh along with 18% interest in court and only then defend the suit filed by licensee Play Games 24X7 Pvt. Ltd.
If the defendant Loran fails to pay the amount, Play Games would be entitled to apply for an ex-parte decree against Loran, the court ordered.
“In the present case the defence is everything else but genuine or based on good faith… It is amply clear that the Defendant seeks to recover damages and compensation from the Plaintiff in its own suit which certainly cannot be a defence to the admitted liability of refunding the security deposit,” the court said.
Merely Displaying Jesus Christ Photo In House Doesn't Mean A Person Has Converted Into Christianity: Bombay High Court Orders Caste Certificate
Case Title: Parvi Ashish Chakravarti v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 457
Merely displaying Jesus Christ's picture in the house wouldn't mean a person has converted and become a Christian, the Bombay High Court at Nagpur said while taking strong exception to the Caste Scrutiny Committee's rejection of a 17-year-old's 'Scheduled Caste' claim.
“No sane man will accept or believe that merely because there is a photograph of Jesus Christ in the house would ipso facto mean that a person had converted himself into Christianity,” Justices Prithviraj Chavan and Urmila Joshi Phalke observed while allowing the petition.
The bench warned the District Caste Certificate Scrutiny Committee (DCCSC) for ignoring pre-constitution public documents of the petitioner belonging to the 'Mahar' caste as also all the Buddhist rituals followed by the family for generations.
Bombay High Court Quashes Closure Order Against Distillery Linked To NCP MLA Rohit Pawar, Asks Pollution Control Board To Decide Afresh
Case Title: Baramati Agro Ltd. v. Regional Officer, Maharashtra Pollution Control Board and Ors.
Citation: 2023 LiveLaw (Bom) 488
The Bombay High Court set aside an order of the Maharashtra Pollution Control Board (MPCB)'s directing closure of a distillery owned by Baramati Agro Ltd, a sugar firm controlled by NCP MLA Rohit Pawar.
Justices Nitin Jamdar and Manjusha Deshpande remanded the matter back to the MPCB for fresh consideration.
The Board overlooked various important factors like the principle of proportionality, the court said.
“To conclude, the Board, while taking the impugned decision in an expedited manner, has overlooked various important factors, such as the Petitioner's second reply, the Enforcement Policy, and the principle of proportionality. The Board had to consider aspects such as the extent of violations, degree of environmental threats, the option of setting compliance timelines, and the possibility of alternative deterrent measures. Neither the impugned order nor the reply affidavit show that a considered decision-making process was adopted before taking the decision,” the court said and remanded the matter back.
Bombay HC Dismisses Plea To Ban Engagement Of Pakistani Artists In India; Says Patriotism Is In Devotion To Country, Not Enmity Towards Another
Case Title: Faaiz Anwar Qureshi v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 489
The Bombay High Court dismissed a petition seeking a complete ban on Indian citizens, companies, and associations from engaging Pakistani artists, including actors, singers, musicians, lyricists, and technicians.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla observed that the petition is a “retrograde step in promoting cultural harmony, unity and peace, and has no merit in it.”
“A person who is good at heart would welcome in his country any activity which promotes peace, harmony, and tranquility within the country and across the border, Arts, music, sports, culture, dance and so on are the activities which rise above nationalities, cultures and nations and truly bring about peace, tranquility, unity and harmony in nation and between nations”, the court observed.
Bombay High Court Fines University For Denying PhD Admission To Candidate Due To Unavailability Of Research Guide
Case Title: Nilesh s/o Ajinath Udmale, v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 490
The Bombay High Court imposed a fine of Rs. 50,000 on Dr. Babasaheb Ambedkar Marathwada University, Aurangabad to a PhD Entrance Test (PET) topper who was not assigned a research guide before expiry of his PET result and was denied admission as a consequence.
A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme sitting at Aurangabad deprecated the university for not verifying the number of vacancies with the research guide of Fine Arts subject before inviting PhD applications.
However, the court said that while allotment of the petitioner to a research guide from another subject in the category of inter-disciplinary studies is permissible, it cannot be done after the expiration of the result's validity. The court ultimately dismissed the petitioner's writ petition, citing the expiry of his result.
Judiciary's Role In Appointing Consumer Forum Members Can't Be Diluted: Bombay High Court Strikes Down Rule 6(1) Of Consumer Protection Rules 2020
Case Title: Dr. Mahendra Bhaskar Limaye v. Union of India
Citation: 2023 LiveLaw (Bom) 491
The Bombay High Court at Nagpur quashed Rule 6(1) of the Consumer Protection Rules, 2020 which prescribed two members from the State bureaucracy and only one member from the judiciary on the Selection Committee that recommends appointment of the President and member-judges to the State and District Consumer Commissions.
The division bench comprising Justices Atul Chandurkar and Vrushali Joshi observed the rule was “diluting the involvement of the judiciary” and the “lack of judicial dominance” was in “contravention of the doctrine of separation of powers and also an encroachment on the judicial domain.”
The court further quashed Rule 10(2) to the extent it prescribed only a four-year tenure for members instead of five and additionally found the advertisement issued by Maharashtra's Department of Consumer Affairs for recruitment to be without jurisdiction for one of the two written papers.
As Rule 6(1) was struck down, the court consequently set aside the notifications issued in June this year constituting the selection committees.
Bombay High Court Refuses To Enforce Producers Association Award Directing ALTT To Pay Rs 1.57 Crores To Makers Of 'Mentalhood' Web Series
Case Title: Film Farm India Pvt Ltd v. ALT Digital Media Entertainment Ltd.
Citation: 2023 LiveLaw (Bom) 494
The Bombay High Court refused to enforce an award of the Western India Film Producers' Association (WIFPA) directing Balaji Telefilms' OTT unit ALTT to pay Rs. 1,57,00,000/- to makers of the web series “Mentalhood”.
Justice SM Modak held that the decision of the Disputes Settlement Committee of WIFPA cannot be enforced as an arbitral award in the absence of an arbitration agreement between parties of the dispute, if one of the parties is not a member of WIFPA.
Bombay High Court Dismisses Nonagenarian's Plea To Remove Statue Of Bharat Ratna Awardee Maharshi Karve In Pune
Case Title: Indumati Borse v. Pune Municipal Corporation and Ors.
Citation: 2023 LiveLaw (Bom) 496
The Bombay High Court dismissed a writ petition by a 90-year-old woman seeking removal of a statue of Maharshi Dhondo Keshav Karve, a reformer and Bharat Ratna recipient, installed by the Pune Municipal Corporation (PMC) near her property.
A division bench of Justice GS Patel and Justice Kamal Khata stated that a memorial or a monument is sufficiently a public purpose, which need not only be a public utility, and the petitioner did not show that installation of statues by a public body is forbidden.
Redevelopment Near Signal Transmitting Station Juhu Allowed As Long As Redeveloped Structure Adheres To Limit Of 15.24 Meters Height: Bombay High Court
Case Title: Sameer Baijanath Joshi v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 497
The Bombay High Court held that redevelopment of an existing permanent structure near Signal Transmitting Station, Juhu, is allowed as long as the redeveloped structure adheres to the limit of 15.24 meters height specified in a 1976 notification issued under the Works of Defence Act, 1903 (WoD Act).
The signal transmitting station in Juhu is a pre-World War II military installation for wireless communication. Several redevelopment projects in Juhu have been halted due to the Army's objection to construction near it.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla paved way for redevelopment of Mumbai's Chandan Cinema situated near the Signal Transmitting Station which was held up due to denial of no objection certificate (NOC) by the military authorities.
Custodian Of Enemy Property Cannot Halt Project On Land Not Vested In Him: Bombay High Court
Case Title: M/s. Neelkamal Realtors Suburban Pvt Ltd v. Office of the Custodian of Enemy Property of India
Citation: 2023 LiveLaw (Bom) 499
The Custodian of Enemy Properties doesn't have the power to issue prohibitory orders against any land parcel suspected to be an 'enemy property' until the Custodian is vested with the property under the Enemy Properties Act, 1968 the Bombay High Court held.
Properties owned by Pakistani Nationals and acquired by the Indian government are known as 'enemy properties.'
A division bench comprising Justices Sunil Shukre and Rajesh Patil quashed all communications issued by the Assistant Custodian of Enemy Property directing the Tehsildar and Collector to Mira- Bhayander Municipal Corporation, to issue stop work notices to a development project undertaken by Neelkamal Realtors.
IBC | Assistant General Manager Signs Inspection Order In Place Of Executive Director Of IBBI, Bombay High Court Stays The Suspension Of Insolvency Professional
Case Title: Partha Sarathy Sarkar v Insolvency & Bankruptcy Board of India & Ors.
Citation: 2023 LiveLaw (Bom) 500
The Bombay High Court bench, comprising Justice B. P. Colabawalla and Justice M.M. Sathaye, while adjudicating a petition filed in Partha Sarathy Sarkar v Insolvency & Bankruptcy Board of India (IBBI) & Ors., has stayed the Suspension Order issued against an Insolvency Professional (“IP”) by the Insolvency and Bankruptcy Board of India (“IBBI”). The Inspection Order issued by IBBI against the IP was signed by Assistant General Manager alone, whereas, as per IBBI (Delegation of Powers and Functions) Order, 2017, any action, inspection or investigation order has to be issued by the Executive Director of IBBI. As per the IBBI (Delegation of Powers and Functions) Order, 2017, any action, inspection or investigation order has to be issued by the Executive Director of IBBI. The Bench noted that prima facie the Inspection Order was signed by the Assistant General Manager in place of the Executive Director.
Landlord Can't Be Hauled In Endless Rounds Of Meritless Litigations: Bombay High Court Ends Nearly Four Decade Long Rent Dispute
Case Title: Appasaheb Pandurang Yadav (Deceased) Through his legal heir v. Appasaheb Virupaksh Tandale
Citation: 2023 LiveLaw (Bom) 502
After a legal battle spanning nearly four decades, the Bombay High Court brought an end to a dispute involving ten rounds of litigation between the owner of agricultural land and his tenants regarding payment of accumulated rent of Rs. Rs. 3,15,250.
Justice Sandeep V Marne refused to condone a delay of over one and a half years by the tenants in filing an appeal against the Tehsildar's 2018 order, which directed them to pay rent accumulated since 1985 to the landlord within three months. The court, despite acknowledging that this length of delay is typically not considered inordinate, deemed it immaterial in the present case.
"The issue is whether the landlord can be hauled in endless rounds of meritless litigations… Public policy demands that a quietus needs to be given to litigation between the parties in the present case. This is a reason why this court went into merits of the contentions that Petitioners wish to argue before SDO," the court stated.
The court noted that ordinarily, while deciding the issue of condonation of delay, it would not have gone into the merits of the case. However, the court decided to verify whether any merit exists in the tenants' appeal before the SDO and concluded that the tenants did not have an arguable case.
Restriction Introduced In 2015 Civil Aviation Rules On Construction Near Defence Aerodromes Not Applicable To Constructions Approved Under 2010 Civil Aviation Notification And Initiated Within 5 Years: Bombay High Court
Case Title: Nitin Dwarkadas Nyati v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 503
Observing that the No Objection Certificate (NOC) was granted for the construction and not the builder, the Bombay High Court directed the Indian Airforce authorities to reconsider a builder's application for revalidation of NOC for construction of a building near the IAF Airfield in Pune.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla refuted the IAF authorities' objection that the NOC was initially issued to another builder and, in absence of any provision of transfer in the NOC, the new builder needed to apply for a fresh NOC.
The court further held that the restrictions on constructions near the NDA Aerodrome introduced in the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 would not be enforceable on constructions approved under a 2010 IAF Notification whose construction began within 5 years of the issuance of the NOC.
Tenant's Premises Demolished While They Were “Illegally” Detained By Police: Bombay HC Orders CID Probe Against Officers, Says No Sanction Required
Case Title: Sanjay Nathmal Jain v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 504
The Bombay High Court directed the Maharashtra Crime Investigation Department to investigate five police officers under Section 156 (3) of the CrPC wherein tenants' premises were demolished while they were allegedly illegally detained at the local police station and coerced into surrendering their tenancy.
Justice RM Joshi at the Aurangabad bench held the police's acts were not in discharge of their duties and therefore no Sanction u/s 197 of the CrPC was required to prosecute them.
The High Court dismissed a clutch of petitions by the original landlord's bother, purchasers of the property and the police officers challenging an order of a Sessions judge directing CID investigation and registration of FIR u/s 156(3) of the CrPC.
Tenants Can Reconstruct Demolished Premises Without NOC From Landlord, Recover Costs If Owner Fails To Redevelop: Bombay High Court
Case Title: Chandralok People Welfare Association v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 511
The Bombay High Court allowed tenants to reconstruct their demolished premises under Section 499 (6) of the Mumbai Municipal Corporation Act sans the landlord's permission, and recover costs from him in the absence of a redevelopment plan within a year of demolition.
However, the division bench comprising Justices Gautam Patel and Kamal Khata clarified that the tenants wouldn't be entitled to redevelop the premises and occupy flats on ownership basis. Meaning the tenants would continue to remain tenants after reconstruction.
“The [tenants] association must make its own arrangements for financing the reconstruction. We have only affirmed their statutory right to reconstruction and the MCGM (BMC)'s obligation to permit it without requiring the prior consent of [the landlord].”
Bombay High Court Appoints Advocate Commissioners To Assess Transit Space For Washermen At Mumbai's Dhobighat
Case Title: Dr. Vijay Uma Shankar Mishra v. Commissioner, MCGM and Ors.
Citation: 2023 LiveLaw (Bom) 532
The Bombay High Court appointed two lawyers practicing in the HC as Advocate Commissioners to ascertain the status of transit rent payment and the transit space available for drying clothes for the Washermen and Rassiholders of Dhobighat situated on Dr. E. Moses Road, Jacob Circle, Mumbai. These persons, operating on a heritage site, have been washing and drying clothes for over a century.
Considering the scarcity of space and modern technology, a division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor in a PIL regarding the welfare of the washermen opined that in the building the Washermen/Rassiholders should be provided with mechanized facility for drying clothes.
Bombay High Court Stays Demolition Notice Against Senior Advocate, Flags 'Selective Approach' Of Mumbai Civic Body
Case Title: V Sridharan v. Brihanmumbai Municipal Corporation & Ors
Citation: 2023 LiveLaw (Bom) 535
The Bombay High Court stayed a notice by the Brihanmumbai Municipal Corporation (BMC) directing a practicing senior advocate at the HC - V Sridharan- to remove or demolish an alleged illegal merging of a niche area into his office space.
A division bench comprising Justice Gautam Patel and Kamal Khata noted neither was the advocate heard before the order was passed nor was any decision taken on the Society's plea to regularize the construction.
The bench specifically made prima facie observations regarding the selective approach of the BMC wherein owners of large-scale illegal constructions were merely served notices and alleged minor illegalities were dealt with an iron hand.
“…for the most minor irregularity, the entire machinery of the Municipal Corporation of Greater Mumbai(MCGM( is thrown at it with considerable aggression, but for anything that is on a larger scale, other than a stop work notice, nothing at all happens.
The court said the BMC's actions would have to be considered on Wednesbury's principle of unreasonableness.
Covid Rebate On Premium FSI Applicable Till Completion Of Project For Builders Who Availed 2021 GR & Fulfilled Conditions: Bombay High Court
Case Title: Prestige Estate Projects Ltd v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 539
In a relief for numerous developers and flat purchasers, the Bombay High Court held that the 50% rebate for purchasing additional floor space index (FSI) granted by the Maharashtra Government to developers during the Covid-19 pandemic would be applicable till completion of the project and the difference amount couldn't be recovered subsequently.
A division bench comprising Justices GS Patel and Kamal Khata has directed the Municipal Corporation of Greater Mumbai (MCGM) to re-issue Intimations of Disapproval (IoDs) and Commencement Certificates (CC) to petitioner developers without any additional payment.
Bombay High Court Refuses to Stay Release of Web Series Inspired by Bhopal Gas Tragedy on Plea By Former Employees of Union Carbide
Case Title: Satya Prakash Choudhry v. Yash Raj Films Pvt Ltd
Citation: 2023 LiveLaw (Bom) 540
The Bombay High Court refused to stay the OTT release of web series “The Railway Men – The Untold Story of Bhopal 1984,” inspired by events around the Bhopal Gas Tragedy and dismissed appeals filed by two convicts, erstwhile employees of Union Carbide India Private Ltd.
The duo approached the High Court in two separate petitions against orders of the City Civil Court refusing ad-interim relief. They sought a pre-screening of the web series citing certain factual errors in the trailer and a stay on the release.
The court observed there was a disclaimer at the beginning of the film stating it was a “work of fiction” and only 'inspired' by the tragedy, moreover events of the gas leak have been discussed and analysed nationally and internationally. Further there was a delay in approaching the court late.
NOC From Owner Not Required To Give New Electricity Connection To Tenant: Bombay High Court
Case Title: M/s Singh Automobiles v. Principal Secretary, Ministry of Energy & Ors.
Citation: 2023 LiveLaw (Bom) 541
The Nagpur bench of Bombay High Court reiterated that a No Objection Certificate (NOC) from the owner of the premises is not required for a tenant to get a new electricity connection.
A division bench of Justice AS Chandurkar and Justice Abhay J Mantri set aside a communication from Maharashtra State Electricity Distribution Company Ltd. requiring NOC from owner to provide new connection to the petitioner.
Explanation For Each Day Of Delay Not Required For Condonation Of Delay In Filing A Case: Bombay High Court
Case Title: Brihan Mumbai Electric Supply and Transport v. BEST Jagrut Kamgar Sanghatana and Ors.
Citation: 2023 LiveLaw (Bom) 544
Bombay High Court held that explanation for each day of delay is not required to condone the delay in filing a case when broad reasons sufficient as per SC guidelines are given in the delay condonation application.
Justice Milind Jadhav upheld condonation of delay of over 5 years by a labour union in filing a complaint against BEST challenging termination observing that the union had sufficiently explained the delay before the labour court.
“By objecting to the delay, rather reasons for the delay, these workers will be deprived of their legitimate right of getting their complaint adjudicated. Insistence by the Petitioner that delay has to be explained for each day of delay cannot be countenanced…In view of the guidelines laid down by the Supreme Court, explanation for day-to-day delay is not necessarily to be given. Broadly the reasons for the delay are mentioned and they cannot be disbelieved”, the court observed.
Tenants' Limited Right To Seek Building Repair Can't Obliterate Landlord's Right To Redevelop It: Bombay High Court
Case Title: Anandrao G Pawar v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 551
The Bombay High Court held that tenants cannot stretch their limited right to reconstruct or repair a dilapidated building in order to obstruct the property owner/landlord from redeveloping his property.
Ruling in favor of the petitioner/landlord, division bench of Justice GS Patel and Justice Kamal Khata set aside the no-objection certificate ("NOC") and subsequent repair permissions granted to tenants w.r.t. a building in Worli.
The court observed that the petitioner/owner was desirous of redeveloping the property and was willing to re-accomodate tenants free of cost on basis of ownership. As such, he was entitled to “enjoy the fruits of development of that property to the fullest possible extent.”
It was added that when an owner does not exercise his rights, "and stands idly by doing nothing to the prejudice of the tenants", the tenants are not without a remedy. They can have the building repaired or rebuilt to its original condition, but no more.
Electricity Connection On Particular Address Not Proof Of Ownership, Legality Of Construction: Bombay High Court
Case Title: High Court On Its Own Motion v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 557
A division bench of Justices Gautam S Patel and Kamal Khata of the Bombay High Court held that an electricity bill or connection on a certain address is not proof of ownership or legality of construction.
An electricity distribution licensee cannot possibly assess questions of title of the property and check if the apartment or units have the necessary planning permissions, the court said.
“An electricity connection application and a bill cannot be used to prove ownership because that is not even the demand of the distribution licensee... It is impossible to expect a distribution licensee to act beyond the remit of the statute to assess questions of title to the property in question let alone assess questions of whether the structure or structures or apartments or units do or do not have the requisite planning permissions.
Bombay HC Rebukes SEBI For Non-Compliance With Court Order, Says Being A Public Body It Must Inspire Confidence Of Investors, Court
Case Title: Ashok Dayabhai Shah And Ors. v. Securities And Exchange Board of India And Ors.
Citation: 2023 LiveLaw (Bom) 558
The Bombay High Court pulled up the Securities and Exchange Board of India (SEBI) for not complying with the Court's order directing it to furnish documents concerning proceedings initiated against Bharat Nidhi Ltd (BNL), a company owned by Times Group MD Vineet Jain.
A division bench of Justice GS Kulkarni and Justice Jitendra Jain, while directing SEBI to comply with the concerned order dated October 23, 2023 and furnish the requested documents to the complainants, observed that SEBI's conduct is damaging to the confidence of investors.
“There has been persistent non-compliance of such orders passed by the Court, despite the Special Leave Petition of the SEBI being rejected, is too far to be imagined nay totally unacceptable. SEBI is a public body, it is required to act in public interest, it needs to comply with the orders passed by this Court...Such approach of the SEBI, in our opinion, would cause a dent to the confidence, the investors would repose in the SEBI, which needs to function solely to further the object and purpose, for which it is created by the Act of the Parliament”, the court observed.
The observation was made by the court while dealing with a writ petition filed by minority shareholders of BNL seeking documents related to an investigation on their complaint.
Teacher Allegedly Working In Two Places With Connivance Of Headmaster No Ground To Appoint Administrator Over School: Bombay High Court
Case Title: Mataji Educational Institution and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 562
The Aurangabad bench of the Bombay High Court set aside a state government order appointing an administrator over an Ashram School in Nanded District on the ground that one of the teachers had secured employment elsewhere with the connivance of the headmaster.
A division bench of Justice Mangesh S Patil and Justice Neeraj P Dhote held that the order is unsustainable as the reason for the appointment of the administrator does not fall within the 12 circumstances given in clause 3.2 (Appointment of Administrator) of the Ashram School Code.
The court further observed that the Deputy Secretary, Other Backward Bahujan Welfare Department, who issued the order, had no power to appoint an administrator under the Ashram School Code read with section 3 of the Educational Institute Management Act, 1976.
'Can't Allow Weaponization Of Writ Jurisdiction In Private Dispute': Bombay HC Junks Padma Shri Awardee's Plea Alleging Illegal Repairs
Case Title: Mustansir Barma v. Executive Engineer A ward & Ors.
Citation: 2023 LiveLaw (Bom) 572
The Bombay High Court dismissed a petition by Padma Shri awardee Mustansir Barma alleging illegal repairs by the owner of ground floor of a building in Colaba observing that the court cannot permit writ jurisdiction to be “weaponized” by delving into disputed questions of fact.
A division bench of Justice GS Patel and Justice Kamal Khata deemed the issue a private dispute and observed –
“If the dispute from this individual Petitioner (who repeatedly asserts that he has been conferred a Padma Shri, as if this is of the slightest consequence to his status as a litigant like any other before us) is that the works are not tenantable repairs, then he should have the courage and take the trouble to file a suit, pay court fees and step into the witness box. Simply put, we are not prepared to accept his word for it (and most certainly not merely because he has a Padma Shri).”
The court criticized the conduct of the petitioner stating that it led to an undue consumption of judicial time. The court concluded that the petition lacks bona fides and appears to be an attempt to involve the court in private disputes.
Acting On Non-Advertised And Non-Publicized Tender Condition Amounts To Denial Of Opportunity To Eligible Bidders: Bombay High Court
Case Title: M/s. Siddhivinayak Enterprises v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 574
The Bombay High Court observed that processing of tenders as per a tender condition which was neither publicized nor made part of the tender document amounts to denial of opportunity to eligible bidders and can be challenged under Article 226 of the Constitution.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor temporarily restrained the Pune Municipal Corporation ("PMC") from issuing work order, observing –
“...we are of the, prima facie, opinion that any tender condition not publicized and not made part of the tender document, if permitted to be acted upon at the time of processing the tenders, it amounts to denial of opportunity of participation of many eligible tenderers who otherwise would have been eligible but for altered tender condition.”
The relief came to be granted in a writ petition filed by M/s Siddhivinayak Enterprises, which challenged a tender issued by the PMC on June 21, 2023, inviting bids for the supply of contract labor for sweeping work in specific areas.
High Court Denies Protection To Vithal-Rukumai Temple In South Mumbai Citing Lack Of Declaration As Monument Of National Or State Importance
Case Title: Shaila Madhukar Gore and Ors. v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 582
The Bombay High Court held that it cannot issue direction for protection of a site as a monument of historical importance in the absence of a formal declaration of the site as a monument of State/National importance or a heritage site under a Central or State law or the Development Control and Promotion Regulations for Greater Mumbai (DCR).
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor refused to order protection of Vithal – Rukumai/Rukhmini Temple in South Mumbai observing –
“we are unable to grant the prayers in this Writ Petition in absence of declaration or inclusion of the temple site in question as an ancient monument of National / State importance or as a heritage site.”
The court dismissed a writ petition by four persons seeking protection and preservation of the temple, situated in Girgaum, Mumbai, claiming it to be an ancient temple over 200 years old, associated with historical events.
The court, however, permitted the petitioners to approach authorities in the Central and State Governments, or the MCGM, to seek formal declaration of the temple site as an ancient and historical monument or for inclusion in the list of heritage buildings and precincts.
Bombay High Court Upholds Eviction Citing Genuine Need Of Owners Living With 11 Family Members, Says Tenant Can't Ask Landlord To 'Adjust'
Case Title: Ajay Mahasukhlal Shah v. Chandrakant Babulal Shah and Ors.
Citation: 2023 LiveLaw (Bom) 583
The Bombay High Court observed that the property owner is the best judge of his residential needs, and the tenant cannot make the landlord adjust to smaller premises to protect the tenancy.
Justice Anuja Prabhudessai upheld an eviction decree observing that the landlords showed a “reasonable and bonafide requirement” of the premises as they along with 11 family members were currently occupying premises only 400 sq ft in area.
“The proven fact is that the need of the Plaintiffs (owners) for additional accommodation is genuine, honest and conceived in good faith and thus reasonable and bonafide. In such circumstances, challenge to the finding rendered by the courts below on the issue of bonafide and reasonable need of the premises cannot be countenanced for the simple reason that the landlord is the best judge of his residential requirement and the tenant cannot dictate terms to him as to how he can and how he should adjust in the available premises”.
People Cannot Go Unrepresented, Not For ECI To Decide Effectiveness Of Candidate's Term: Bombay High Court Directs ECI To Conduct Bye-Election for Vacant Pune Lok Sabha Seat
Case Title: Sughosh Joshi v. ECI and Anr.
Citation: 2023 LiveLaw (Bom) 585
The Bombay High Court ordered the Election Commission of India (ECI) to conduct a bye-election immediately for the Pune Lok Sabha constituency, which has been vacant since the death of MP Girish Bapat on March 29, 2023.
A division bench of Justice GS Patel and Justice Kamal Khata criticized the ECI's reasoning for not conducting the by-election, claiming that it has been too busy since March 2023 with preparations for the 2024 Lok Sabha elections.
“In any parliamentary democracy, governance is by elected representatives. Those elected to Parliament are the voice of the people. If the representative is no more, another must be elected in his place. The people choose their representatives. A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure”, the court observed.
The court quashed ECI's certificate stating that bye-elections will not be held as it is busy with preparation for 2024 General Elections and the candidate elected in the bye-election will have a very short tenure.
Licensee Appointed As Telegraph Authority Can Determine Compensation For Using Land To Instal Electricity Transmission Line: Bombay High Court
Case Title: Maharashtra Eastern Grid Power Transmission Company Ltd. v. Collector of Buldhana and Ors.
Citation: 2023 LiveLaw (Bom) 590
The Bombay High Court held that a transmission licensee appointed as the Telegraph Authority also has the power to determine the compensation amount along with the power to pay compensation for using land for installing electricity transmission lines.
Justice Avinash G Gharote of the Nagpur bench observed that the power to pay compensation under section 10(d) of the Indian Telegraph Act, 1885 includes the power to determine compensation as without determination of compensation, there cannot be any payment.
“The contention of Mr. Kothari, learned counsel for the respondent No.4 (landowner) that section 10(d) of the Telegraph Act only contemplates a power to pay and not to determine the compensation and the compensation has to be determined by the District Collector, in my considered opinion is misconceived…”, the court held.
If the District Collector had the authority to determine the compensation, section 10(d) of the Telegraph Act would have contained such a provision, the court observed.
Maratha Candidates Who Applied For Govt Jobs Under SEBC In 2019 Can Be Considered Under EWS Category: Bombay High Court
Case Title: Akshay Ashok Chaudhari and Ors. v. Government of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 604
The Bombay High Court set aside the Maharashtra Administrative Tribunal's (MAT) February 2023 order barring candidates from the Maratha community from being considered for government jobs under the Economically Weaker Sections (EWS) category in the recruitment processes of 2019.
A division bench of Justice Nitin Jamadar and Justice Manjusha Deshpande upheld the state government's decision to allow candidates who initially applied under the Socially and Educationally Backward Class (SEBC) in 2019, to switch to the EWS category during the ongoing recruitment process.
The court highlighted the one-time situation created after the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Class Act, 2018 (SEBC Act), leading to government resolutions extending the EWS quota to candidates who had initially applied under through SEBC category.
The court noted that no alteration occurred in EWS reservation and the original EWS candidates had not been disqualified, they just had to compete with a larger pool of candidates when the state allowed SEBC candidates to apply under EWS. The SEBC candidates still had to produce due EWS certificates to be eligible under EWS category, the court said.
Additional Fees For Changing Slum Developer's Structure Not Applicable When Owner Inducts Legal Heirs As Partners: Bombay High Court
Case Title: Gemini Developers v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 607
The Bombay High Court held that additional fees applicable for changing the structure of a slum developer company/firm and inducting third parties is not applicable when the owner inducts his legal heirs as partners in order to ensure smooth transition after his death.
Justice Milind N Jadhav quashed an order of the Slum Development Authority (SRA) directing a slum developer to pay additional fees after the owner converted the sole proprietorship to a partnership and inducted his legal heirs as partners.
“it is crystal clear that the exemption provided in clause (ix) of the SRA office order dated 23.03.2015 is applicable to the facts of the Petitioner's case as the conversion of the proprietorship firm into partnership firm was never intended to induct any third party but only the legal heirs, which even otherwise eventually would have taken place after the demise of Mr. Ramesh Malhotra”, the court observed.
Fundamental Right to Travel Abroad, Authority Can't Cite Ongoing Dispute Over Applicant's Address To Deny Passport: Bombay High Court
Case Title: Rajinder Kaur Jaspal Singh Layal v. Union of India
Citation: 2023 LiveLaw (Bom) 612
The Bombay High Court directed the Regional Passport Officer, Mumbai to renew the passports of a woman and her two sons, which were earlier rejected by the Passport Authority due to objections raised by the woman's brother-in-law over the address mentioned by them in their passport applications.
Delivering the judgement, Justices AS Chandurkar and Firdosh P Pooniwalla stated, "A person cannot be deprived of his/her fundamental right to travel abroad on the ground that there is a dispute in respect of the property which is mentioned in the address given by the applicant for the purposes of including it in the passport."
The court however clarified the Petitioners' address in the passport would not by itself confer on them any right in respect of the said property so as to prejudice the brother-in-law in any way.
Nonetheless, the court observed that the right to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution. Therefore, no person can be deprived of this right except according to the procedure established by law as laid down in the Passports Act, 1967.
Grievance Body Of Slum Rehabilitation Authority Cannot Review Its Earlier Order Under The Guise Of Speaking To Its Minutes: Bombay High Court
Case Title: Sitara Anil Sharma v. Apex Grievance Redressal Committee, Slum Rehabilitation Authority, Bandra, Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 619
The Bombay High Court held that the Apex Grievance Redressal Committee (AGRC) of the Slum Rehabilitation Authority (SRA) cannot review its own order in the guise of speaking to the minutes of the order.
Justice Madhav J Jamdar quashed an Order passed by the AGRC while speaking to the minutes of it earlier order, directing the parties to register a different agreement than the one mentioned in the original order.
