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Bombay High Court Monthly Digest:...

Bombay High Court Monthly Digest: March 2024

Amisha Shrivastava

10 April 2024 6:00 AM GMT

Reports/Judgments

Application For Enhancing Electricity Load Doesn't Constitute Intimating Supplier About Change In Class Of Usage: Bombay High Court

Case Title: Maharashtra State Electricity Distribution Company Ltd. v. Ramchandra s/o. Madhavrao Naik and Anr.

Citation: 2024 LiveLaw (Bom) 118

The Aurangabad Bench of the Bombay High Court held that an electricity consumer's application for load enhancement of electricity does not constitute intimation to the electricity supplier of change in the class of electricity usage.

Justice SG Mehare restored a bill of over Rs. 23 lakhs levied on a landlord and tenant for unauthorized usage by MSEDCL after it found that the use of the concerned premises was changed from operating a printing press (industrial use) to running a coaching class (commercial use).

“Enhancing the load and changing the user of the electricity supply from one class to another class are apparently distinct. The load may be enhanced for any class of user of electricity for the purpose for which it was supplied. The consumer is bound to inform the supplier about any change in the class/tariff”, the court observed.

The court held that usage of electricity for a purpose other than for which it was supplied as per demand is unauthorized usage.

Bombay High Court Issues Contempt Notices To Lilavati Hospital's Founder Trustee & Son On HDFC's Plea

Case Title: HDFC Bank Limited v. Kishore K. Mehta and Anr.

Citation: 2024 LiveLaw (Bom) 119

The Bombay High Court issued contempt notices against the founder trustee of Lilavati Hospital – octogenarian Kishore Mehta and his son Rajesh for alleged breach of undertakings given to the court and for allegedly failing to deposit 25% of debt amount, in proceedings filed by HDFC Bank.

HDFC claimed the respondents had deposited only Rs 3.68 crore whereas they were supposed to deposit 25% of Rs. 14.74 crore with 16% interest from 2004.

Justice AS Chandurkar and Justice Jitendra Jain noted that the duo avoided execution of the arrest warrant and automatic dismissal of their appeal, by affirming payment of amount. “The aforesaid reasons are prima facie sufficient for the Court to proceed in accordance with Rule 1036 of the Contempt of Courts (Bombay High Court) Rules, 1994.”

Unfortunate That 'Tantrics /Babas' Take Advantage Of Vulnerability & Blind Faith: Bombay HC Upholds Man's Life Term For Rape Of 6 Minor Girls

Case Title: Mehandi Kasim Jenul Abidin Shaikh @ Mehandi Kasam Shaikh @Bangali Baba v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 120

The Bombay High Court confirmed the conviction and life sentence of a man claiming to be a tantric who raped and sexually exploited seven girls, six of them minors, for over five years under the pretext of curing them from begetting intellectually challenged male children.

A division bench of Justice Revati Mohite Dere and Justice Manjusha Deshpande dismissed the appeal filed by one Mehandi Kasim Jenul Abidin Shaikh, alias Bangali Baba, against conviction by the sessions court in April 2016 observing –

“It is an unfortunate reality of our times, that people, at times knock on the doors of so called tantrics/babas, for a solution to their problems and that these so called tantrics/babas, take advantage of the vulnerability and blind faith of these people and exploit them. The so called, tantrics/babas not only exploit their vulnerability, by extracting money from them, but also many a times, sexually assault the victims, under the guise of providing solutions…The appellant took full advantage of the apprehension of the victims mothers and by manipulating their fears, assured to cure the girls and in the process, also financially exploited them.”

No Evidence To Connect Accused To Terrorist Act; Trial Failure Of Justice: Bombay High Court Acquits GN Saibaba

Case Title: G.N. Saibaba v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 121

The Bombay High Court today that the trial of former Delhi University Professor GN Saibaba and others was held despite violation of mandatory provisions of the Unlawful Activities Prevention Act (UAPA) pertaining to arrest, search and seizure, and sanction to prosecute.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes, while acquitting GN Saibaba and others in an alleged Maoist-links case, observed that the trial, held without mandatory compliance, amounts to a failure of justice.

“There is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void. There is non-compliance of the provisions of Sections 43-A and 43-B of the UAPA pertaining to arrest, search and seizure. Statutory presumption under section 43- E of the UAPA would not apply for the offences charged. We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice.”

The Court also observed, "No evidence has been led by the prosecution by any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act, either by participating in its preparation or its direction or in any manner providing support to its commission."

Mere Failure To Perform Contract Does Not Amount To Cheating: Bombay High Court Grants Bail To Man Accused Of Cheating Actor Vivek Oberoi

Case Title: Sanjay Pran Gopal Saha v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 122

The Bombay High Court granted bail to actor Vivek Oberoi's business partner Sanjay Saha arrested in a Rs. 1.55 crore cheating case filed by Oberoi for allegedly siphoning off the funds of their film production firm.

Justice NJ Jamadar held that prima facie, clauses of the partnership agreement supported Saha's contention that the money was used for purposes expressly authorised under the agreement.

“Mr. Ponda, invited the attention of the Court to the clauses in the LLP (Exh.C) especially Clauses 38 (m) and 44 which provide for incurring of expenses for the welfare of the partners and payment of remuneration to the partners. Prima facie, the aforesaid clauses in the partnership agreement support the cause of the submission sought to be advanced on behalf of the applicant”, the court observed.

The court said that the existence of fraudulent or dishonest intention since the inception of the transaction would have to be established at an appropriate stage in the proceedings before the learned Magistrate.

“Mere failure to perform the contract by itself does not amount to cheating. Likewise, the same act or omission may not constitute an offence of cheating and criminal breach of trust, simultaneously”, the court added.

NCLT Has Jurisdiction To Direct ED To Release Attached Properties Of Corporate Debtor: Bombay High Court

Case Title: Shiv Charan v. Adjudicating Authority

Citation: 2024 LiveLaw (Bom) 123

The Bombay High Court held that the NCLT has the jurisdiction to direct the Enforcement Directorate (ED) to release attached properties of a corporate debtor once the resolution plan has been approved and immunity from prosecution is triggered under Section 32A of IBC, 2016.

A division bench of Justice BP Colabawalla and Justice Somasekhar Sundaresan upheld an NCLT order directing the ED to release the properties of a corporate debtor that were attached under the Prevention of Money Laundering Act, 2002 (PMLA).

“Section 60(5) [of IBC] clearly empowers the NCLT to answer the question of whether the statutory immunity under Section 32A has accrued to a corporate debtor. As a consequence, the NCLT is well within its jurisdiction and power to rule that prior attachment of the property of a corporate debtor that is subject matter of an approved resolution plan, must be released, if the jurisdictional facts for purposes of Section 32A exist”, the court held.

TDS Not Liable To Be Deducted On Business Support Services As Not Taxable As FTS: Bombay High Court

Case Title: Shell India Markets Private Limited v. Union of India

Citation: 2024 LiveLaw (Bom) 124

The Bombay High Court held that business support services are not taxable as a fee for technical services (FTS), and no TDS is liable to be deducted.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that even if it is fees for technical or consultancy services, it can be only where fees are paid in consideration for making available technical knowledge, experience, etc. Thus, the view of the AAR that the petitioner, Shell International Petroleum Company Limited (SIPCL), works closely with and advises the employees of the petitioner and hence makes available the services is not correct. The AAR's view, in fact, suffers from fallacy since the agreement continues to operate to date. If the view of AAR is to be held correct, then the contract must be concluded, as once the services and the know-how, skills, etc. are transferred to the petitioner, the need to continue to render services must end.

Actual Agricultural Operation, Not a Necessary Condition To Qualify As Agricultural Land; Bombay High Court

Case Title: Ashok Chaganlal Thakkar v. National Faceless Assessment Centre

Citation: 2024 LiveLaw (Bom) 125

The Bombay High Court held that actual carrying on of agricultural operations is not a necessary condition for deciding that the parcels of land were agricultural lands.

The bench of Justice KR Shriram and Justice Neela Gokhale quashed the order and remanded the matter for passing the fresh assessment order. The AO will only examine whether the evidence brought on record to establish the claim that the lands sold are in the nature of agricultural land is authentic. If the AO has to reject the evidence filed by the petitioner, he shall bring contrary material on record. For that, the AO has to conduct an inquiry to ascertain the authenticity of the certificates filed by the petitioner. The AO may take such steps as required by conducting a necessary inquiry with the concerned government authorities. The contention of the petitioner cannot be rejected purely on the presumption that the lands sold were not agricultural lands because the petitioner sold the parcels of land within two years of purchase.

[MRTU & PULP Act] Working Journalists' Status Distinct From Regular Workmen Due To Special Privileges, Can't Be Considered Employees: Bombay HC

Case Title: Indrakumar Jain v. M/s. Dainik Bhaskar and Ors.

Citation: 2024 LiveLaw (Bom) 126

The Bombay High Court held that working journalists are not employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) and therefore, cannot file complaints of unfair labor practices under the said Act.

A division bench of Justice Nitin Jamdar and Justice Sandeep Marne delivered the judgment on a reference by a Single Judge in three writ petitions filed by working journalists and newspapers challenging Industrial Court orders on complaints.

“The working journalists under Section 3 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 are not included in the definition of "employee" under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Thus, a complaint of unfair labour practice filed by a working journalist under the MRTU and PULP Act is not maintainable”, the court held.

The court said that working journalists have various safeguards under the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Working Journalists Act) and can avail the machinery for dispute resolution under the Industrial Disputes Act, 1947 (ID Act).

Bombay High Court Sets Aside Police Custody Of NCP Worker Booked For Uploading Video Containing Death Threats To Dy CM Devendra Fadnavis

Case Title: Yogesh Rajendra Sawant v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 127

The Bombay High Court set aside the sessions court order granting police custody of NCP (Sharadchandra Pawar) worker Yogesh Rajendra Sawant arrested for allegedly posting a video containing death threats to Deputy CM Devendra Fadnavis.

Justice RN Laddha allowed Sawant's writ petition against the order of the Additional Sessions Judge as Sawant was already in judicial custody and no notice or hearing was given to him before setting aside the judicial custody.

“When the impugned order was passed, the petitioner was in judicial custody. Despite the possibility of promptly issuing and serving notice to the petitioner, no such notice was issued, and he was not granted an opportunity for a hearing. This omission goes against the fundamental principles of natural justice”, the court observed.

Mere Absence Of Medical Evidence Not Ground To Discard Direct And Ocular Evidence: Bombay High Court

Case Title: Bhaulal S/o. Dokraji Reswal v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 128

The Bombay High Court upheld a man's conviction for raping a six-year-old child under the pretext of exorcising and driving out evil spirit from her. The girl passed away after this incident.

Justice Abhay S Waghwase of the Aurangabad bench observed that there was sufficient eyewitness testimony to establish the rape charge despite there being no medical evidence as her family performed her last rites without medical examination.

“merely absence of medical evidence, is no good ground to discard the direct and ocular evidence of parents coupled with evidence of an independent witness regarding rape. Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence. When direct evidence inspires confidence, case of prosecution can still be accepted. Here is a case of such nature where parents and independent witness, who have seen the incident, have narrated the occurrence while in witness box. Their testimonies have not been rendered doubtful. Hence, even in absence of medical evidence, case of prosecution can safely said to be inspiring confidence and can be readily accepted.”

Bombay High Court Orders State Govt To Immediately Repair Internal Roads Of Mumbai's Aarey Milk Colony

Case Title: Binod Sitaram Agarwal v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 129

The Bombay High Court directed the state government's Department of Agriculture, Animal Husbandry, Dairy and Fisheries Development to immediately initiate the repair or reconstruction of internal roads of the Aarey Milk Colony in Mumbai.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor directed that the authorities “shall be guided by the overwhelming public interest of having proper internal roads in the area as also by the measures to be taken for preserving the wildlife and ecology and accordingly take decision at the earliest.”

The court noted that out of the total 52 kilometres of internal roads in the Sanjay Gandhi National Park Eco-Sensitive Zone (ESZ), 7 kms fall under the jurisdiction of the BMC, while the remaining 45 kms requires attention from the state government's Department of Agriculture.

The court directed a stretch of 8.22 kms out of 45 kms to be closed within 10 days, as alternate routes are available. The repair, reconstruction, and maintenance of the remaining internal roads were directed to be immediately undertaken by the Department of Agriculture, Government of Maharashtra.

“Further Detention Will Frustrate Object Of Article 21”: Bombay HC Grants Bail To Former MD Of IL&FS Hari Sankaran In Fraud Case After Nearly 5 Yrs

Case Title: Hari Sankaran v. Serious Fraud Investigation Office

Citation: 2024 LiveLaw (Bom) 130

The Bombay High Court granted bail to Hari Sankaran (63), prime accused in the high-profile Rs. 94 crore IL&FS alleged fraud case, five years after his arrest.

Sankaran, the former Vice Chairman and Managing Director of IL&FS Financial Services Ltd. (IFIN), was arrested on April 1, 2019, by the Serious Fraud Investigation Office (SFIO) for offenses punishable under Sections 447 of the Companies Act, 2013, and Sections 417, 420 read with 120B of the Indian Penal Code.

The Special Judge rejected his application for bail vide an order dated 3rd October, 2019, following which he approached the High Court.

Justice Prithviraj K. Chavan noted that Sankaran has been suffering from various severe ailments, including cardiovascular diseases, diabetes, and other comorbidities.

The court observed that continuing his detention would increase the risk of cardiac death and frustrate the very object of Article 21 of the Constitution, which guarantees the right to life and personal liberty.

NEET Applications Availing 10% Maratha Quota Subject To HC Orders In Pleas Challenging Maratha Reservation: Bombay High Court

Case Title: Dr. Jaishri Laxmanrao Patil & Ors. v. Chief Minister, State Of Maharashtra & Ors

Citation: 2024 LiveLaw (Bom) 131

The Bombay High Court held that any applications received under the advertisement for NEET exam or similar advertisements availing Maratha quota would be subject to further HC orders on petitions challenging the reservation.

The court directed that the candidates should be informed of the orders passed by it in petitions against the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2024 which grants 10% reservation to the Maratha community in jobs and education.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla said –

"in the meantime it would be in the interest of the justice that, if any applications are received under the advertisement dated 9th February 2024 or any other similar advertisements taking benefit of the impugned Act, the same shall be subject to further orders to be passed on these proceedings, on the adjourned date of hearing."

Bombay High Court: Co-Promoters Are Also Liable To Pay Refund With Interest To Allottees In Case Of Delay Under Section 18 Of The RERA.

Case Title: Wadhwa Group Housing Pvt Ltd v. Vijay Choksi and SSS Escatics Pvt. Ltd

Citation: 2024 LiveLaw (Bom) 132

The Bombay High Court bench, comprising of Justice Sandeep V Marne, held that promoters who are part of a real estate project but haven't received any consideration from the allottee will still be classified as “Promoters” under Section 2(zk). Consequently, they will be liable to refund the amount with interest to the allottees under Section 18 of the Real Estate (Regulation and Development) Act, 2016.

Boyfriend's Family Merely Opposing The Relationship On A Single Occasion Not Sufficient To Attract Offence Of Abetment Of Suicide: Bombay HC

Case Title: Mangal Kashinath Dabhade and Anr. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 133

The Bombay High Court discharged a mother-daughter duo booked in an abetment to suicide case for allegedly opposing the relationship of the son with the deceased due to her caste.

Justice MS Karnik set aside an order of the Additional Sessions Judge rejecting their discharge application observing –

“Amol was in a love relationship with the deceased for a considerable period of time. In the present facts, mere expression of opposition of the applicants to the relationship on one occasion without anything more is not sufficient to attract the ingredients of the alleged offences. In my view, a plain reading of Section 306 of IPC and applying it to the undisputed facts of the present case indicates that none of the ingredients are attracted to the case at hand.”

"Illiterate, Unable To Understand Pleadings": Bombay High Court Allows Pardanashin Woman To Add Facts Omitted Earlier In Written Statement

Case Title: Hasinabi w/o Abdul Latif v. Mohammad Sharif S/o Abdul Rajjak

Citation: 2024 LiveLaw (Bom) 134

The Bombay High Court allowed a pardanashin lady to amend her written statement in a suit against her despite the facts proposed to be introduced via the amendment being already known to her and still not included in the original written statement.

Justice BP Deshpande of the Nagpur Bench set aside appellate court's order rejecting her prayer for amendment, observing that though she knew the facts when she filed the written statement, she did not understand the requirements of pleadings in the written statement.

“the petitioner/defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected”, the court held.

Service Tax Not Liable To Be Paid On Ocean Freight/Sea Transportation Services: Bombay High Court

Case Title: M/s. Sanathan Textile Pvt Ltd. Versus Union of India

Citation: 2024 LiveLaw (Bom) 135

The Bombay High Court held that service tax is not liable to be paid on ocean freight or sea transportation services.

The bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla relied on the decision of the Gujarat High Court in the case of SAL Steel Ltd. vs. . Union of India, in which it was held that no tax is leviable under the Integrated Goods and Services Tax Act, 2007, on the ocean freight for the services provided by a person located in a non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India, and the levy and collection of tax on such ocean freight under the impugned notifications is not permissible in law.

IT Rules Amendment | Prima Facie No Case Made Out For Not Notifying Govt's Fact Check Unit: Bombay High Court Third Judge AS Chandurkar Opines

Case Title: Kunal Kamra v. Union of India with connected cases

Citation: 2024 LiveLaw (Bom) 136

In a setback for the petitioners in the 2023 IT Rules Amendment Case, the third judge—Justice AS Chandurkar—opined that prima facie, no case was made out to direct the Union government to continue its statement and not notify the Fact Check Unit.

Justice Chandurkar ruled that the balance of convenience favours the Union, considering the government's submission about not using the FCU to censor political opinions, satire, and comedy. Additionally, any action taken after notifying the FCU would be subject to the final outcome of the petition and wouldn't cause irreversible damage.

"In my opinion, no case has been made out to direct that the statement made on behalf of the non-applicants that the fact check unit should not be notified should be continued during present proceedings as an order of the court."

The court, however, referred the matter back to the division bench of Justices Gautam Patel and Neela Gokhale for pronouncement of orders on the interim applications filed by petitioners Kunal Kamra and others. They sought to restrain the government from notifying the FCU till Justice Chandurkar's final opinion on the challenge to the 2023 amendment to the IT Rules 2021.

According to the Rules, the government should establish an FCU to identify fake, false, and misleading information about its business on social media.

Bombay High Court Orders Release Of Rape Convict Found To Be Juvenile After 19 Yrs Of Imprisonment

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 137

The Bombay High Court ordered the release of a 36-year-old rape convict after 19 years of imprisonment as he was found to be a juvenile at the time of the offence in 2005.

The man was convicted and sentenced to life imprisonment for raping a three-year-old girl child in the vicinity under the guise of giving her a chocolate.

He filed an interim application for release on the grounds of his juvenility at the time of commission of the said crime. He relied on the School Leaving Certificate issued by the Head Master of a Primary School in Bankati Vasti, Uttar Pradesh.

In July 2022 the High Court directed the State to verify the convict's claim following which the Palghar police conducted an enquiry regarding the accused's school leaving certificate.

“It is categorically stated that, the date of birth of the Petitioner is 16th April, 1988,” the court noted.

“We find substance in the contentions of the learned Advocate for the Applicant/Petitioner. It is an admitted fact that, the Applicant has already undergone more than three years of actual imprisonment. In view thereof, the Applicant/Petitioner is entitled to be released from jail forthwith.”

Maharashtra Prevention Of Gambling Act | ASP Can Raid Suspected Gambling Houses Without Special Authorization From State: Bombay HC Full Bench

Case Title: Maroti s/o Gangaram Nandane & Ors. v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 138

The Aurangabad bench of Bombay High Court held that the Assistant Superintendent of Police (ASP) can conduct raids on suspected gambling houses under the Maharashtra Prevention of Gambling Act, 1887 without being specially authorized by the state government.

A full bench of Justice Mangesh Patil, Justice NB Suryawanshi and Justice RM Joshi stated that high rank officials and Magistrates like District Magistrate, Sub-Divisional Magistrate and Superintendent of Police have been conferred with the powers to conduct a raid under sub-clauses (a) to (d) of section 6(1) of the Act.

It clarified that only when delegating the authority to conduct raids to subordinates, do these high-ranking officials require special empowerment from the State Government.

Exgratia Bonus Paid By Indian Express To Employees Over And Above Eligible Bonus Is Allowable As Business Expenditure: Bombay High Court

Case Title: Indian Express Newspapers (Bombay) Ltd. v. CIT

Citation: 2024 LiveLaw (Bom) 139

The Bombay High Court held that exgratia bonuses paid to employees over and above the eligible bonus under the Payment of Bonus Act are allowable as business expenditures.

The bench of Justice KR Shriram and Justice Dr. Neela Gokhale observed that the ITAT was not right in law in holding that the liability for salary and wages arising out of the Justice Palekar Award is not allowable as expenditure in the present year but only in the year in which the agreement between the management and the employees is entered into.

Application For Compensation To Landlord During Stay On Eviction Decree Can't Be Entertained When Appeal Is Ready For Final Hearing: Bombay HC

Case Title: Brijbhushan Chandrabali Shukla v. Mahendra Yadav S/o Lavjari S. Yadav

Citation: 2024 LiveLaw (Bom) 140

The Bombay High Court held that an application for compensation to a landlord in case of interim stay on eviction decree during appeal cannot be entertained after the appeal is ready for final hearing when both parties were heard at the time of admission of the case.

Justice Rajesh S Patil, while dealing with a tenant's revision application against an eviction decree, dismissed the landlord's interim application seeking monthly compensation of Rs. 70,000 from the tenant.

“Such an application preferred much later for fixing market rent/compensation, after the Appeal is ready for final hearing, would not be entertainable when both the parties were heard at the time of Admission of Appeal and the execution of judgment and decree of eviction was stayed”, the court held.

Bombay High Court Approves Centre's 'Fact Check Unit' for Identifying Fake Social Media Content by 2:1 Majority

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 141

By a 2:1 majority and in a setback for the petitioners in the 2023 IT Rules Amendment Case, the Bombay High Court, in an interim order, refused to restrain the Union government from notifying its Fact Check Unit.

Rule 3(1)(b)(v) of the IT Rules amendment 2023 empowers the government to establish a Fact check Unit and unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading.

The social media intermediary then either has to remove the information or be ready to defend its actions in court if the need arises.

The reconstituted bench of Justices GS Patel and Neela Gokhale pronounced the interim order after the third judge, Justice Chandurkar, opined that no case was made out for interim relief until he decides the clutch of petitions.

"The third judge has rendered his opinion. Consequently, the majority view is that the interim applications for stay and continuation of the previous statement (by the Union not to notify the FCU) are rejected," the order said.

Harshad Mehta Scam: AO Can't Assess Additions Again If Deleted By CIT(A) In First Round Of Proceedings; Bombay High Court

Case Title: CCIT(OSD)/Pr. Commissioner of Income Tax, Central v. Bhupendra Champaklal Dalal

Citation: 2024 LiveLaw (Bom) 142

The Bombay High Court in the Harshad Mehta Scam case, while upholding the ITAT's ruling, held that the Assessing Officer could not have assessed additions again since the CIT (A) had deleted the same in the first round of proceedings and the concerned matters have attained finality.

The bench of Justice KR Shriram and Justice Dr. Neela Gokhale observed that various types of additions aggregating to the amount were made by the Assessing Officer in the original assessment proceedings, and in the appeal filed by the assessee, the CIT(A) deleted these additions. The Revenue did not prefer an appeal challenging the order of the CIT (A), and hence, the same has attained finality.

SC/ST Act Proceedings Even If Held In Open Court Must Be Video Recorded: Bombay High Court

Case Title: Dr. Hema Suresh Ahuja and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 143

The Bombay High Court clarified that it is mandatory to video record all proceedings, including bail proceedings, in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Sarang V Kotwal court answered a reference by a single judge bench holding that the proceedings must be video recorded even if they are held in open court.

“It would be necessary to video record any proceeding relating to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 even though the proceedings are held in open court...Hearing of a bail application under section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 is a 'judicial proceeding' as contemplated under section 15-A of the Atrocities Act.”

"Unbecoming Conduct": Bombay HC Upholds Action Against CISF Constable Who Knocked On Female Neighbour's Door After Consuming Alcohol, To Ask For 'Lemon' In Her Husband's Absence

Case Title: Arvind Kumar v. Laxmi Sanjay Nikam

Citation: 2024 LiveLaw (Bom) 144

The Bombay High Court upheld the disciplinary action taken against a Central Industrial Security Force (CISF) constable for knocking on the door of a female colleague's quarters late at night for lime, terming his conduct as "unbecoming of a government servant."

The court rejected the constable's claim that the actions were not in the course of duty and therefore, the incident does not amount to misconduct under Rule 1.3(1) of the Central Civil Service (Conduct) Rules, 1964.

A division bench of Justices Nitin Jamdar and MM Sathaye dismissed the writ petition filed by Arvind Kumar, a CISF constable, challenging the orders imposing a penalty of reduction in pay for his “misconduct.”

Information Commissioner Can Direct Public Trust Receiving State Grants To Provide Info Pertaining To Its Educational Institutions Under The RTI Act: Bombay High Court Full Bench

Case Title: People Welfare Society v. State Information Commissioner and Ors.

Citation: 2024 LiveLaw (Bom) 145

The full bench of the Bombay High Court at Nagpur clarified the obligations of public trusts registered under the Maharashtra Public Trusts Act, 1950 in providing information under the Right to Information (RTI) Act, 2005 when they run institutions receiving grants from the state government.

The key question before the court was: Whether a public trust registered under the Maharashtra Public Trusts Act 1950, which is running an institution that receives grants from the state, is duty-bound to supply information sought from it under the provisions of the RTI Act, 2005?

In its detailed ruling, the full bench laid down the following principles:

If the information sought under the RTI Act, is regarding the Public Trust, then there is no obligation to supply the information
If the Public Trust, is NOT a “body owned, controlled or substantially financed” under Sec 2 (h)(i) of the RTI Act and not received substantial Government largesse or land on concession, to implement the aims and objects of the said Public Trust even then there isnt't an obligation to provide information.
However, if the information sought under the RTI Act pertains to Educational or other Institutions run by the Public Trust and if substantial financial support is given by the government, then the Information Commissioner can direct the Institution to supply the information.
The Charity Commissioner, would also not be legally obliged to supply information he may have collected about the Public Trust, if the information falls under Section 8(j) of the RTI Act.
But if the information sought doesn't fall in the exempted category under sec.8 of the RTI Act, them it can be supplied by the Authority who has the custody of such information.

Bombay High Court Summons Commissioner Of Police Pimpri Chinchwad Over Ill-Preparedness Of His Officers In Assisting Public Prosecutors

Case Title: Akshay Londhe v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 146

The Bombay High Court expressed displeasure at the lack of assistance and insufficient knowledge about the case displayed by police officers meant to assist prosecutors during bail hearings.

Justice Madhav Jamdar observed that such behaviour was adversely affecting the administration of justice and summoned the commissioner of Pimpri–Chinchwad to appear in the matter either physically or through video conferencing on March 20, 2024.

“The Police personnel who come to Court for giving instructions to the learned APPs appearing in the matters, are often neither aware nor well-versed with the relevant details of the case,” the court lamented.

Advocate Enrolled Elsewhere Must File Vakalatnama Along With Maharashtra-Based Lawyer To Appear In Courts Here: Bombay High Court

Case Title: Moinoddin Golder Aminoddin Golder v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 147

The Bombay High Court called for appropriate action against Uttar Pradesh based lawyer Avnendra Kumar for breach of rules that govern lawyers not registered with the Bar Council of Maharashtra and Goa (BCMG).

Justice Prithviraj K. Chavan observed that despite the Advocates Rules regarding the conditions subject to which an Advocate shall practice, mandating Kumar to file his vakalatnama along with a lawyer enrolled with the BCMG if he was to appear in a court in Maharashtra, his name found no mention in the filed document.

To add to Kumar's woes his Bar licence seemed to have expired in December 2022.

“Let the copy of this order be immediately forwarded to the Chairman of Bar Council of Maharashtra & Goa to initiate appropriate action agaisnt Mr. Avnendra Kumar,” the bench thus ordered.

Not only that, the court further found that the accused - Moinoddin Golder- had filed two bail applications and secured bail from a coordinate bench.

Bombay High Court Quashes Reassessment Proceedings Against Castrol India Initiated On Basis Of A Change Of Opinion

Case Title: Castrol India Ltd. v. Deputy Commissioner of Income-tax

Citation: 2024 LiveLaw (Bom) 148

The Bombay High Court quashed reassessment proceedings against Castrol India initiated on the basis of a change of opinion.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the reasons to believe notice itself indicates that the AO was already seized with information prior to passing the original assessment order, and as such, there is no tangible information on the basis of which he has allegedly formed the requisite belief.

Bombay High Court Intervention Temporarily Halts Transportation Of Kolhapur Elephant To Jamnagar

Case Title: Swasthishri Jinsen Bhattark Pattacharya Mahaswami Sanstha Math v. Union of India and Ors.

Citation: 2024 LiveLaw (Bom) 149

The Bombay High Court directed the High-Power Committee to hear a Jain trust before finalizing the transfer of an elephant named 'Madhuri' from Kolhapur to the Radhe Krishna Temple Elephant Welfare Trust (RKTEWT) in Jamnagar, Gujarat. The court emphasized the importance of seeking the opinion of the owner, as the Jain Trust possesses a declaration under Section 40(2) of the Wildlife Protection Act, 1972.

The dispute arose when the High-Power Committee decided to transfer Madhuri based on a proposal by the NGO PETA, citing concerns about the elephant's well-being. However, the Jain trust, which has cared for Madhuri since 1992, approached the High Court, claiming that the decision was unilateral and seeking a fair chance to be heard.

The court requested the High-Power Committee to hear all parties involved before making a decision and recorded RKTEWT's statement agreeing not to transfer Madhuri until the Jain trust's representation was considered. However, the court clarified that it hadn't formed an opinion on PETA's representation, allowing the committee to consider all relevant aspects.

The High-Power Committee, initially formed in a PIL before the Tripura High Court, has expanded jurisdiction over the entire country since 2023 and deals with various animal-related matters, including transfers and rescues.

“Certificate Of Practice Subsists” – Bombay High Court Decides Not To Precipitate Action Against Lawyer Whose Bar Council ID Card Expired

Case Title: Moinoddin Golder Aminoddin Golder v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 150

The Bombay High Court decided not to initiate any further action against advocate Avnendra Kumar, who had appeared without a valid identity card during a bail hearing, after accepting his unconditional apology.

Justice Karnik observed, “In any case the Certificate of Practice issued by the Bar Council of India subsists, which could not be produced before the coordinate bench, hence any further action is now not necessary.”

On March 13th when Kumar appeared before a coordinate bench seeking adjournment in a bail application filed by advocate Abdul Karim Pathan on behalf of an accused. However, Kumar's identity card issued by the Bar Council of Uttar Pradesh expired on December 31, 2022.

Mumbai Police Fake Encounter: Bombay High Court Affirms Conviction of Police Officers | Life Term for Ex-Cop Pradeep Sharma

Case Title: The State of Maharashtra v. Pradeep Rameshwar Sharma

Citation: 2024 LiveLaw (Bom) 151

The Bombay High Court sentenced former Mumbai Police encounter specialist Pradeep Sharma to life imprisonment while upholding the life imprisonment awarded to 13 others, including 12 police personnel, in the case of the fake encounter killing of Lakhan Bhaiya in 2006, who allegedly was the former aide of the notorious gangster Chhota Rajan.

It was the first conviction of police officers in a fake encounter.

The HC upheld the life sentence of 13 convicts and acquitted six civilians. The offence against one civilian and one cop was abated as they died after conviction.

Justices Revati Mohite Dere and Gauri Godse said –

“All the circumstances led by the prosecution, right from the formation of the police squad, wrongful confinement, criminal abduction and fake encounter, has been proved.”

However, the court lamented the “gruesome” death of sole eye witness Anil Bheda days before his deposition in 2011, calling it a “shame” and a “travesty of justice” that the prime witness lost his life, but no one is booked to date. It hoped that Bheda's perpetrators would be prosecuted.

Regarding Pradeep Sharma, the sole accused to be acquitted by the trial court, the High Court said all circumstances were “overlooked” by the trial judge and the finding of acquittal “perverse” and “unsustainable” by ignoring and excluding relevant material. “The circumstances point towards the guilt of Pradeep Sharma,” the court said.

Provisions Of Section 12(5) R/W 7th Schedule Of The A&C Act Also Apply To Institutional Arbitrations: Bombay High Court

Case Title: Era International v. Aditya Birla Global Trading India Pvt. Ltd

Citation: 2024 LiveLaw (Bom) 152

The High Court of Bombay held that that provisions of Section 12(5) r/w 7th Schedule of the A&C Act also apply to Institutional Arbitrations.

The bench of Justice Bharati Dangre held that rules of an arbitral institution cannot override the provisions of the A&C Act. It held that even if parties agree to institutional arbitration, it does not exclude the Court's power to decide on the termination of an arbitrator's mandate if a controversy arises regarding the grounds mentioned in Section 14(1)(a).

“Can't Render Wife Homeless For Senior Citizen In-Laws' Peace”: Bombay HC Stays Eviction Till Interim Decision On Shared Household Under DV Act

Case Title: Sanjivani Jayesh Seernani v. Kavita Shyam Seernani & Ors.

Citation: 2024 LiveLaw (Bom) 153

The Bombay High Court stayed an order directing a daughter-in-law to vacate her matrimonial home under the Senior Citizens Act for six months until a Magistrate decides her interim application for residence under the Domestic Violence Act.

Justice Sandeep Marne held that when there's a conflict between the rights of senior citizens under the Senior Citizens Act and those of women under the Domestic Violence Act, a balanced approach is required and the rights of senior citizens cannot be determined in isolation.

“Petitioner cannot be rendered homeless to ensure peace of mind of the senior citizens,” the court added.

Banks And Financial Institutions Should Pass Reasoned Orders While Declaring Entity/Person Wilful Defaulter: Bombay High Court

Case Title: Milind Patel v. Union Bank of India

Citation: 2024 LiveLaw (Bom) 154

The Bombay High Court emphasized that the banks and financial institutions must provide reasoned orders before labeling an individual or entity as a wilful defaulter under the Reserve Bank of India's Master Circular.

The Court observed that being branded as a wilful defaulter bars one from accessing the financial sector. Consequently, the discretion granted to banks by the circular must be wielded judiciously, in line with the RBI's directives.

In a ruling dated March 4, a division bench comprising Justice BP Colabawalla and Justice Somasekhar Sundaresan underscored, “Banks and financial institutions that seek to invoke the Master Circular to declare occurrence of wilful default, must share the reasoned orders passed by its Identification Committee and Review Committee.”

Bombay High Court Issues Non-Bailable Warrant Against Promoter Of Varanium Cloud IT Services Provider, Orders For His Assets To Be Frozen

Case Title: Cherag Shah v. Harshwardhan H. Sabal

Citation: 2024 LiveLaw (Bom) 155

The Bombay High Court issued a non-bailable warrant and further directed Red Corner Notice proceedings, if required, to be initiated against Harshwardhan H. Sabale – promoter of IT company Varanium Cloud Ltd for defaulting in payment of over Rs. 49.53 crores to his creditor.

The court further ordered the attachment of Sabale's bank accounts with a total balance exceeding over Rs. 3 crore and further directed taking charge of all his demat accounts and all unencumbered shares of Varanium Cloud Limited.

Justice Abhay Ahuja passed the order due to Sabale's failure to appear before the court as directed earlier or pay his debt. Creditor Cherag Shah had approached the HC seeking execution of an arbitral award directing Sabale and Ogle Technologies Ltd to pay Shah $ 4441520 with 6% interest.

“It is clear that the Judgment Debtor No.1 is deliberately avoiding this Court and has been in violation/breach of the orders of this Court despite opportunity granted to him," the Court said.

Accordingly, the court directed the Commissioner of Police, Mumbai to secure Sabale's presence on the next date. The judge further directed the police to take steps to have a Red Corner Notice issued against Sabale with the assistance of the Ministry of External Affairs if Sabale is in the UAE.

Trademark Suit Can Be Filed At 'Principal Place Of Business', Doesn't Need To Be Filed At Company's Registered Address: Bombay High Court

Case Title: Prince Pipes and Fittings Ltd. v. Shree Sai Plast Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 156

The Bombay High Court ruled that a company's registered office may not necessarily be its principal place of business for the purposes of filing a trademark infringement suit. The court held that a suit for infringement of trademark can be filed at the "principal office" of the company, even if the registered office is located elsewhere.

The ruling came in an interim application filed by Shree Sai Plast Pvt. Ltd., seeking the return of a suit filed against it by Prince Pipes and Fittings Ltd. for trademark infringement. Prince Pipes has its registered office in Goa but its principal place of business is Mumbai, where it carries out all major business activities.

Justice Bharati Dangre dismissed Shree Sai's application, holding that the suit was rightly filed in Mumbai as that is Prince Pipes' principal place of business.

Bombay High Court Raps Commissioner Of Customs For Prohibiting Import Of Body Massagers Citing Probable Use As 'Adult Sex Toys'

Case Title: Commissioner of Customs v. DOC Brown Industries LLP

Citation: 2024 LiveLaw (Bom) 157

The Bombay High Court held that the probable or imaginative use of an item cannot be used by customs officials to prohibit it's import on grounds of obscenity. The Court dismissed an appeal filed by the Commissioner of Customs who confiscated imported body massagers on the grounds of possibly being used as “adult sex toys.”

A division bench of Justices GS Kulkarni upheld the May 2023 order of the Central Excise and Service Tax Appellate Tribunal by which it aside the Commissioner of Customs order against DOC Brown Industries LLP in April 2022.

The Commissioner had relied heavily on the opinion of psychologists and gynaecologists who opined that “Caresmith Wave Body Massager” could be subjected to other uses.

“Thus, merely because the goods can be subjected to an alternative use, of the nature, as the Commissioner contemplated, this can never be the test to hold that the goods were prohibited, when they otherwise satisfied the test of goods, which could be imported and sold.”

The court noted that the massager was confiscated citing a 60-year-old notification 'No. 01/1964,' some of whose contents may have lost its efficacy in contemporary times. It stated that the notification prohibited the import of obscene books, pamphlets, papers, writing, drawings, paintings, representations, figures or articles, and objectional descriptions.

Justice G.S. Kulkarni made scathing observations on the Commissioner's approach, calling it "astonishing and too far-fetched" and a product of "vivid imagination."

Variance In Allowable Deductions Doesn't Amount To Furnishing Inaccurate Particulars Of Income: Bombay High Court

Case Title: Pr. Commissioner of Income Tax v. ICICI Bank Ltd

Citation: 2024 LiveLaw (Bom) 158

The Bombay High Court held that the assessee cannot be said to furnish inaccurate particulars of income merely for variance in allowable deductions.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the ITAT was of the view and rightly so that the assessee had made a bona fide claim under Section 36(1)(viii), as such deductions claimed are linked to the business profit. Only because there was variance in the deductions allowable due to a change in the determination of business profit can it be said that the assessee has furnished inaccurate particulars of income or concealed inaccurate particulars of income.

Time-Barred Claims Must Not Be Entertained, Doing So Would Perpetuate Injustice Than Serving Justice: Bombay High Court

Case Title: Mahavir Enterprise v. Chandravati Sunder Salian

Citation: 2024 LiveLaw (Bom) 159

The Bombay High Court single bench of Justice Bharati Dangre held that claims that are clearly time-barred must not be entertained, as doing so would perpetuate injustice rather than serving justice. The High Court held that even the slightest doubt regarding the timeliness of a claim warrants its referral to arbitration, as interfering in such matters would encroach upon the tribunal's jurisdiction.

Further, the High Court emphasized that mere exchanges of letters or settlement discussions do not extend the period of limitation for issuing a notice of arbitration. It is imperative for a clear notice invoking arbitration to be presented within three years from the rejection of a final bill. In this instance, the notice invoking arbitration was issued 5½ years after the rejection of claims, rendering it ex facie time-barred.

Appropriately Sanctioned Work Order Can't Be Cancelled Due To Slackness Of Executing Agency, Can't Make Residents Suffer: Bombay High Court

Case Title: Ravindra Hemraj Dhangekar v. District Collector, Pune District and Ors.

Citation: 2024 LiveLaw (Bom) 160

Observing that residents cannot be penalised for authorities' delay in execution of works for public amenities, the Bombay High Court set aside cancellation of previously sanctioned works in Kasba Legislative Constituency, Pune and redirection of the funds to works in other constituencies.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor struck down two Government Resolutions (GRs) dated July 27, 2023 and August 22, 2023 to the extent of those works in other constituencies for which work orders have not yet been issued.

“If a work is duly and appropriately sanctioned and on account of any slackness or indifferent approach of the executing agency, the work could not be started or commenced, cancellation of such work leads to depriving the residents of a particular municipality of the public amenities. For such a lackadaisical approach in commencement of the work by the executing agency, the residents of the municipalities cannot be penalised”, the court observed.

The court clarified that work orders for other constituencies already issued as per the impugned GRs shall remain unaffected. However, it directed the state to execute the originally sanctioned works for Kasba in the upcoming financial year.

Holi Colours: Pidilite Industries Gets Injunction Against Rang Rasayan & Others Over Rangeela Packaging

Case Title: Pidilite Industries Limited v. Radha KishanBishan Dass Rang Rasayan Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 161

Following the Bombay High Court's intervention in a copyright suit filed by Pidilite Industries Limited, Rang Rasayan Pvt Ltd undertook to not manufacture, sell or distribute any products using packaging similar to Pidilite's "Rangeela" brand of colored powders for Holi.

Justice Bharati Dangre further ordered the company to file details of the stock sold in the last one year.

Pidilite had filed a commercial IP suit alleging copyright infringement and passing off by the defendants over the use of lookalike packaging.

As per the terms of the injunction, the defendants have agreed to several commitments, including not manufacturing, selling or exporting the infringing products through any offline or online channels. They are also required to inform dealers, distributors and e-commerce platforms like Amazon, Flipkart and others to cease selling the impugned products.

Technical Difficulties Shouldn't Thwart Objectives Of Arbitral Proceeding: Bombay High Court Allows Petition For Replacement Of Arbitrator

Case Title: M/s. Paresh Construction & Foundation Ltd. v. Hindustan Petroleum Corp. Ltd.

Citation: 2024 LiveLaw (Bom) 162

The Bombay High Court single bench of Justice Bharti Dangre held although there might be an impression that with the legal termination of the arbitral tribunal's mandate upon the expiration of one year from the reference entry, as per Section 29A of the Arbitration and Conciliation Act 1996 there might be a technical difficulty. However, it held that such technicalities should not thwart the overarching objective of the proceedings.

Where Arbitral Award In Nature Of Money Decree, Requirement Of 100% Deposit Of Award For Grand Of Stay: Bombay High Court

Case Title: Balmer Lawrie & Co.Ltd v. M/s. Shilpi Engineering Pvt.Ltd.

Citation: 2024 LiveLaw (Bom) 163

The Bombay High Court single bench of Justice R.I. Chagla held that where the arbitral award is in the nature of money decree, there is a requirement for deposit of 100% of the awarded amount for grant of stay. Further, it held that there is no distinction in the application of parameters between stays sought under Section 36(3) and Section 37 of the Arbitration Act, as neither provision specifies such differentiation

Section 36(3):

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing.

Bombay High Court Issues Show Cause Notice For Contempt Against Borrower For Using “Extra- Judicial Pressure”

Case Title: Cholamandalam Investment & Finance Company Ltd. v. State of Maharahstra & Ors.

Citation: 2024 LiveLaw (Bom) 164

Observing that defaulting borrowers are increasingly taking law into their own hands, the Bombay High Court directed certain borrowers to explain why contempt notices shouldn't be issued against them.

A division bench of Justices BP Colabawalla and Somasekhar Sundaresan prima facie observed that even after handing over physical possession of the secured asset to the non-banking financial institution, the borrowers had re-entered the premises and by breaking open the locks.

“From what has transpired in the above matter, we find that that after giving a solemn undertaking to this Court, the borrowers have sought to put extra-judicial pressure on the authorised officer of the Petitioner-NBFC. This cannot be tolerated even for a minute. We are increasingly finding that borrowers are taking the law into their own hands.”

Accordingly, the court directed borrowers Prashant Tanaji Shinde, Yamuna Tanaji Shinde & Tanvi Chavan to remain present in court on March 28 along with their advocates and explain why contempt proceedings shouldn't be initiated against them.

Domestic Violence | Court Can't Direct Parties To File Affidavit Of Assets & Liabilities In Appeal Against Final Trial Court Judgment: Bombay HC

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 165

The Bombay High Court held that the appellate court cannot direct parties to file affidavit of disclosure of assets and liabilities in proceedings challenging final judgment of the trial court in a domestic violence case.

Justice Sharmila U Deshmukh clarified that such affidavits are only required at the interim stage for the purpose of deciding interim maintenance.

“filing of affidavit of assets and liabilities would amount to bringing in new material which will have to be tested on the touchstone of evidence which will not be permissible at the appellate stage after final adjudication. At the appellate stage, where challenge is to the final judgment, as opposed to an appeal against an order of interim maintenance, in my view, upon reading of the decision of Rajnesh v. Neha (supra), the direction of filing of affidavit of disclosure cannot be said to apply inasmuch as at the time of final determination, there is material available before the Trial Court supported by evidence on the basis of which rights of the parties have been determined”, the court stated.

Minimum Three Bidders, Not Three Technically Qualified Bidders Needed For Competitive Tender Process: Bombay High Court

Case Title: Kanchan India Limited & Anr. v. Government of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 166

The Bombay High Court clarified that minimum of three bidders, not three technically qualified bidders, are required make a tender process competitive as per paragraph 4.4.3.1 of the Procurement Manual of the state.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor reasoned that tendering authorities cannot predict the technical qualifications of bidders before evaluating their bids.

“As to whether participating tenders were technically qualified or not could be known to the tendering authority only after the bids are technically evaluated. The requirement of paragraph 4.4.3.1 is participation by minimum three bidders and not participation by three technically qualified bidders. If we read paragraph 4.4.3.1 to mean that it requires participation by minimum of three technically qualified bidders, such an interpretation will make the provision non-workable. The reason is very clear. No tendering authority can be said to be in know of the fact forehand as to whether the participating tenderer is technically qualified or not.”

Bombay High Court Orders Legal Action Against Doctor For Gross Negligence In Postmortem Procedure

Case Title: Jaywant @ Bhau Mukund Bhoir v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 167

The Bombay High Court ordered the Secretary of Health, Government of Maharashtra, and the Commissioner of Police, Thane to take legal action against a medical officer for gross negligence in conducting the postmortem of a deceased in a murder case.

“The Secretary, Health, Government of Maharashtra as well as Commissioner of Police Thane are directed to take cognizance of the said report as well as the order passed by this Court and initiate an appropriate legal action against Dr. Phad and the concerned for such a gross negligence and illegality in conducting a postmortem of the deceased-Mohan Bhoir”, Justice Prithviraj K Chavan directed.

The court was dealing with a bail application filed by one Jaywant Bhoir accused of murdering a man in 2020. Bhoir filed the present bail application on the ground that the post-mortem report did not specify the cause of death of the victim. The medical officer mentioned in the post-mortem report that the cause of death will be given after receipt of the chemical analysis report.

No By-Election For Akola West Assembly Constituency: Bombay High Court Quashes ECI's Notification

Case Title: Anil S/o. Shivkumar Dubey v. Election Commission of India and Ors.

Citation: 2024 LiveLaw (Bom) 168

The Bombay High Court quashed the Election Commission of India's (ECI) by-election notification for the Akola West Assembly Constituency, Maharashtra and held that there will be no bye-poll for the constituency.

A division bench of Justice Anil S Kilor and Justice MS Jawalkar sitting at Nagpur noted that the incoming member would have a term of less than a year till the expiry of the current Assembly's term.

“As the period of less than one year is left as a balance term an incoming member would get from the date of declaration of the result of the bye-election, we have no hesitation to hold that the impugned notification dated 16/03/2024 issued by the respondent No.1 (ECI) is contrary to proviso (a) to Section 151-A of the Act of 1951”, the court observed.

[Domestic Violence Act] Bombay High Court Upholds ₹3 Crores Compensation For Woman Whose Husband Called Her “Second-Hand”

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 169

The Bombay High Court upheld a trial court's order directing a man to pay Rs. 3 crores compensation to his ex-wife for various acts of domestic violence including calling her “Second Hand” as her engagement with another person was called off.

Justice Sharmila U. Deshmukh rejected the man's revision application against the orders observing –

“Although the abuse will necessarily result in mental torture and emotional distress for the aggrieved person, the gravity will differ from person to person. In the present case admittedly both the parties are well educated and highly placed in their workplace and in social life. That being the social standing, the acts of domestic violence would be greater felt by the Respondent No 1 as it would affect her self worth”

No Contributory Negligence By Car Driver Who Rammed Into Truck From Behind Due To Non-Functional Brake Lights: Bombay High Court

Case Title: New India Assurance Co. Ltd. v. Mangal Ravindra Divate

Citation: 2024 LiveLaw (Bom) 170

The Bombay High Court held that if a truck's brake lights or taillights are not working and a car rams into it from behind, the driver of the car vehicle is not liable for any negligence contributing to the collision.

Justice Shivkumar Dige set aside an order of the Motor Accident Claims Tribunal which held the deceased 50% responsible for the accident. The court enhanced the compensation awarded to the deceased car driver, nearly doubling the amount to Rs. 29,40,000.

“Driving 70 feet long trailer without any break light or tale lamps is a grievous negligence, but these facts are not considered by the Tribunal and has fixed 50% contributory negligence on the deceased, which is erroneous. Hence, I hold that accident occurred due to sole negligence of the driver of the offending trailer."

'No Sane Man Would Believe It': Bombay HC Grants Bail To Accused Who Allegedly Raped Victim In Broad Daylight At Crowded Juhu Chowpatty

Case Title: Baharul Islam Mujibur Rehman Laskar v. State of Maharashtra and Anr

Citation: 2024 LiveLaw (Bom) 171

The Bombay High Court granted bail to a watchman accused of raping a house help behind a rock at Juhu Chowpatty in May 2021 after the court found the woman's version of events to be prima facie un-believable.

Justice Prithviraj K. Chavan stated, "Since the victim was major at the time of alleged offence, prima facie, it does not appeal to one's mind that in a broad daylight at a crowded Juhu Chowpatty on the day of Id-Ul-Fitra, the applicant would commit forcible sexual intercourse with the victim. No sane man would believe it."

The prosecution had alleged that the accused, who was working as a watchman, had developed a friendship with the victim, who was employed as a housemaid. On May 14, 2021, it was alleged that he had taken the victim to Juhu Chowpatty and sexually assaulted her behind some stones, despite her refusal and threatened her with dire consequences.

Secured Creditor Registered With CERSAI Will Have Precedence Over VAT Authorities Against Proceeds Of Enforcement: Bombay HC

Case Title: Indian Overseas Bank v. Deputy Commissioner of State Tax

Citation: 2024 LiveLaw (Bom) 172

The Bombay High Court clarified that in a sale of a mortgaged asset, where the mortgage in favour of a secured creditor is registered prior in time with CERSAI, and the MVAT Authorities too have a charge, the proceeds of the enforcement of the mortgage would first go towards discharging the dues owed to the secured creditor.

It is only the residue, if any, after discharging the dues of the mortgagee, that may flow to the MVAT Authorities, added the Court.

The High Court therefore held that once a secured creditor registers its security interest u/s 26-B of the SARFAESI Act notwithstanding any other law in force, the debts owed to the secured creditor shall be paid in priority over all other debts including taxes payable to the State Government.

A Division Bench of Justice Somasekhar Sundaresan and Justice BP Colabawalla observed, “The only effect of the interplay between Section 26-E of the SARFAESI Act and Section 37 of the MVAT Act would be that MVAT Authorities would not have priority in the recourse to the assets that are secured in favour of the secured creditor and registered in priority with CERSAI”.

Patent Illegality | For Claim For Damages There Must Be Proof Of Actual Loss: Bombay High Court Stays Arbitral Award

Case Title: Alkem Laboratories Limited v. Issar Pharmaceuticals Pvt. Limited

Citation: 2024 LiveLaw (Bom) 173

The Bombay High Court single bench of Justice RI Chagla stayed an arbitral award noting that the Arbitrator contravened the settled law that for a claim for damages, there must be proof of actual loss which is sine qua non for such claim. It held that the Arbitrator failed to consider the proof of loss while awarding damages to the Claimant.

Maharashtra Govt's Action In Levying Stamp Duty On 'DO' Is Within Legislative Competence Of State: Bombay High Court

Case Title: Saurer Textile Solutions Pvt Ltd v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 174

The Bombay High Court held that the action of the Maharashtra Government in levying stamp duty on delivery orders (DO) is within the legislative competence of the state.

The bench of Justice GS Patel and Justice Neela Gokhale observed that the action of the State of Maharashtra in levying stamp duty on Delivery Orders (DO) as provided in Article 29 of Schedule I of the Maharashtra Stamp Act, 1958 (MSA) is well within the legislative competence of the State and does not intrude upon the legislative domain of the Parliament as reserved in Entries 41 and 83 of List I of Schedule VII of the Constitution of India and is not ultra vires Article 246(1), 286(1)(b) and 286(2) of the Constitution of India.

Detention Under MCOCA Can't Continue Despite Lawful Extension If Sanction To Prosecute Accused Rejected: Bombay High Court

Case Title: Dinesh Ganesh Indre and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 175

The Bombay High Court held that once the competent authority under the Maharashtra Control of Organised Crimes Act, 1999 (MCOCA) denies sanction to prosecute an accused, their detention under MCOCA must be terminated, even if it had been lawfully extended earlier by the special MCOCA court.

Justice NJ Jamadar granted default bail to four accused individuals under MCOCA, emphasizing that without the necessary sanction, there cannot be a case under the Act.

“once the competent authority declines to grant sanction under Section 23(2) of the Act, 1999, the extended period for completion of investigation, would terminate on the day the competent authority declines to grant sanction and on the next day, the right to seek default bail, in the event chargesheet is not filed, accrues to the accused”, the court further observed.

The accused were implicated in a criminal conspiracy involving a robbery and were seeking bail.