Bombay High Court Monthly Digest: May 2023
Amisha Shrivastava
10 Jun 2023 12:50 PM GMT
Nominal Index [Citation 223 – 266]Areeb Hasan Ansari Najeeb Hasan Ansari v. State of Maharashtra 2023 LiveLaw (Bom) 223Indian Performing Right Society Ltd. v. Rajasthan Patrika Pvt. Ltd. 2023 LiveLaw (Bom) 224Arjun Amarjeet Rampal v. Union of India and Ors. 2023 LiveLaw (Bom) 225Sayli B Parkhi v. State of Maharashtra 2023 LiveLaw (Bom) 226M/s Bharti Telemedia Ltd. v. State of Goa 2023...
Nominal Index [Citation 223 – 266]
Areeb Hasan Ansari Najeeb Hasan Ansari v. State of Maharashtra 2023 LiveLaw (Bom) 223
Indian Performing Right Society Ltd. v. Rajasthan Patrika Pvt. Ltd. 2023 LiveLaw (Bom) 224
Arjun Amarjeet Rampal v. Union of India and Ors. 2023 LiveLaw (Bom) 225
Sayli B Parkhi v. State of Maharashtra 2023 LiveLaw (Bom) 226
M/s Bharti Telemedia Ltd. v. State of Goa 2023 LiveLaw (Bom) 227
Anubha Shrivastava Sahai v. National Testing Agency 2023 LiveLaw (Bom) 228
L & T Finance Limited v. State of Maharashtra 2023 LiveLaw (Bom) 229
Gurumahima Heights Co-operative Housing Society Ltd v. M/s Admirecon Infrastructure Pvt Ltd 2023 LiveLaw (Bom) 230
Imran Iqbal Shaikh v. State of Maharashtra and Anr 2023 LiveLaw (Bom) 231
Chanda Kochhar v. ICICI Bank Limited 2023 LiveLaw (Bom) 232
Amol Ramesh Bole and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 233
Rana Kapoor v. Directorate of Enforcement and Anr 2023 LiveLaw (Bom) 234
Palmview Investments Overseas Limited v. Ravi Arya 2023 LiveLaw (Bom) 235
Applause Entertainment Pvt. Ltd. v. Meta Platforms Inc. and Ors. 2023 LiveLaw (Bom) 236
MV Golden Pride v. GAC Shipping (India) Pvt. Ltd. 2023 LiveLaw (Bom) 237
Alice D'souza v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 238
Buddheshwar S/o Babulal Lilhare v. Maharashtra State Electricity Distribution Company and Ors 2023 LiveLaw (Bom) 239
XYZ v. ABC 2023 LiveLaw (Bom) 240
Sunil Wamanrao Sakore v. Union of India 2023 LiveLaw (Bom) 241
Everest Entertainment LLP v. Hridaynath D. Kadudeshmukh and Others 2023 LiveLaw (Bom) 242
Maherban Hasan Babu Khan v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 243
Sunil Kumar Jindal v. Union of India 2023 LiveLaw (Bom) 244
Patanjali Foods Limited v. Meta Platforms Inc & Ors. 2023 LiveLaw (Bom) 245
Pravin Naik v. Shrinivas Prabhu Dessai 2023 LiveLaw (Bom) 246
RNA Palazzo Residents Welfare Association v. East and West Builders and Ors. 2023 LiveLaw (Bom) 247
Radheshyam Jangad v. Shanti Pralhad Sakla through Satish Sakla 2023 LiveLaw (Bom) 248
TML Business Services Limited v. Deputy Commissioner of State Tax 2023 LiveLaw (Bom) 249
M/s. Aditi Constructions v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 250
ABC v. XYZ 2023 LiveLaw (Bom) 251
Harish Kumar Garg v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 252
Chanchal Bhagwatilal Gokhru v. Union of India 2023 LiveLaw (Bom) 253
Ashish Devidas Morkhade v. State of Maharashtra 2023 LiveLaw (Bom) 254
Nalini W/o Natthuji Shende v. State of Maharashtra 2023 LiveLaw (Bom) 255
Baliram S/o Reva Chavhan v. Gajanan S/o Shekrao Wanjare 2023 LiveLaw (Bom) 256
Joan Mascarenhas E D'Souza v. State of Goa 2023 LiveLaw (Bom) 257
Mahendra Dattu Gore v. State of Maharashtra 2023 LiveLaw (Bom) 258
Reliance General Insurance Co. Ltd. v. Aman Sanjay Tak and Anr. 2023 LiveLaw (Bom) 259
Kavita w/o. Waman Kokode vs Govt of Maha 2023 LiveLaw (Bom) 260
Robin Karamchandani v. Jem and Associates & Ors 2023 LiveLaw (Bom) 261
Pramod v. State of Maharashtra 2023 LiveLaw (Bom) 262
Sanville Adrian Dsouza Alias Sam Dsouza v. Union Of India and Ors. 2023 LiveLaw (Bom) 263
Irfan Moiuddeen Saiyyed and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 264
Pinkesh Dhiraj Patel and Anr. v. State of Maharashtra 2023 LiveLaw (Bom) 265
Shubhash Waman Baviskar and Ors. v. Adinath Hambirrao Budhwant and Ors. 2023 LiveLaw (Bom) 266
Reports/Judgments
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.
Case Title: Indian Performing Right Society Ltd. v. Rajasthan Patrika Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 224
The Bombay High Court temporarily restrained FM radio stations - Radio Tadka and Radio City from broadcasting songs authored by the members of Indian Performing Rights Society (IPRS) without paying royalties to the authors.
Justice Manish Pitale held that prima facie, the original authors (authors, composers, publishers etc.) of the literary or musical works used in films and sound recordings are entitled to royalties equal to the producer for utilization of their works.
The court said that prima facie, due to a 2012 amendment in the Copyright Act, the original authors, who were earlier not entitled to royalty once their work became part of a film, can now claim royalty for any use of their work, except screening in a cinema hall in a movie. The amendment has fundamentally changed the manner in which the rights of authors of original works have to be treated, the court added.
Case Title: Arjun Amarjeet Rampal v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 225
The Bombay High Court permitted actor Arjun Rampal to belatedly avail of the Sabka Vikas Legacy Dispute Resolution Scheme 2019 to settle service tax dues for the year 2016-2017.
A division bench of Justices Nitin Jamdar and Abhay Ahuja observed that Rampal couldn't be denied benefits of the scheme due to a technical glitch for no fault of his.
Therefore, the court directed authorities to allow Rampal to make the challan payment of Rs. 2.74 lakhs under the SVLDR, settle his tax dues of over Rs. 9.16 lakhs and to issue the necessary discharge certificate under the scheme.
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 Upholds The Validity Of Goa Tax on Entry of Goods Act, 2000
Case Title: M/s Bharti Telemedia Ltd. v. State of Goa
Citation: 2023 LiveLaw (Bom) 227
The Bombay High Court upheld the validity of the Goa Tax on Entry of Goods Act, 2000.
The bench of Justice M. S. Sonak & Justice Valmiki Sa Menezes relied on the decision of the 9-judge bench of the Supreme Court in the case of Jindal Stainless Limited and another vs. State of Haryana and ors. which upheld the constitutional validity of entry taxes imposed by states on goods coming in from other states.
Case Title: Anubha Shrivastava Sahai v. National Testing Agency
Citation: 2023 LiveLaw (Bom) 228
The Bombay High Court refused to order relaxation of minimum 75 percent 12th standard board score eligibility criterion for admission to IITs, NITs, IIITs, and CFTIs/GFTIs through JEE Main and JEE Advance examinations.
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne held –
"The students, whose cause petitioner is allegedly espousing, neither have any vested right nor legitimate expectation to claim relaxation in the eligibility criteria for admissions to NITs, IITs and CFITs during the current year. Since grant of relaxation is a policy decision, the same can be taken by the Government of India in appropriate circumstances.”
The court said that the eligibility criteria was relaxed in previous three years due to special circumstances. Just because relaxation was granted in the previous three years due to COVID, the students are not entitled to continue to claim relaxation indefinitely, the court said. The court did not find the eligibility condition to be arbitrary in any manner.
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.
Case Title: Gurumahima Heights Co-operative Housing Society Ltd v. M/s Admirecon Infrastructure Pvt Ltd
Citation: 2023 LiveLaw (Bom) 230
The Bombay High Court ruled that mere signing of the arbitral award at a place cannot be the determinative factor for ascertaining the place of arbitration. It added that if there is no agreement between the parties regarding the place of arbitration and the arbitrator has not determined the place of arbitration, the overall circumstances of the case would have to be taken into consideration to reach a conclusion regarding the same.
The bench of Justice Manish Pitale was dealing with a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), which was disputed on the ground that the court lacked jurisdiction to entertain the same. The court observed that there was a lack of material to show agreement between the parties with respect to the place of arbitration, as contemplated under Section 20(1) of the A&C Act. Further, in such a situation, the arbitrator could have determined the place of arbitration under Section 20(2) of the A&C Act, which he had failed to do so.
POCSO Act Not Meant To Punish Minors In Romantic Relationships: Bombay High Court
Case Title: Imran Iqbal Shaikh v. State of Maharashtra and Anr
Citation: 2023 LiveLaw (Bom) 231
The Protection of Children of From Sexual Offences Act (POCSO) was enacted to protect minors from sexual assault, not to punish minors in romantic or consensual relationship and brand them as criminals, the Bombay High Court said.
Justice Anuja Prabhudessai observed thus and granted bail to a 22-year-old accused of kidnapping and rape of a minor under sections 363, 376 of the IPC and section 4 of the POCSO Act.
Case Title: Chanda Kochhar v. ICICI Bank Limited
Citation: 2023 LiveLaw (Bom) 232
The Bombay High Court upheld a single judge's order and refused to grant interim relief to the former CEO and MD of ICICI Bank Chanda Kochhar in her suit seeking specific performance of her retirement benefits and other entitlements.
The court refused to stay the ICICI bank's email dated January 30, 2019, terminating her employment and allowing her unexercised vested stock of 1,25,42,750 to lapse.
A division bench of Justices KR Shriram and Rajesh Patil observed “reliefs sought by appellant (Kochhar) are in the nature of final reliefs and grant of such reliefs would amount to decreeing appellant's suit at the interim stage.”
Case Title: Amol Ramesh Bole and Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 233
The Maharashtra Government agreed to withdraw prohibitory orders against eight villagers from Ratnagiri, who were leading protests against the multi-billion project of Ratnagiri Refinery & Petrochemicals Ltd.
The orders passed under section 144(2) of the CrPC barred them from entering their hometown Rajapur Taluka for a month from April 21 – May 31, 2023 and from publishing adverse posts on social media which may cause confusion or incite a law-and-order situation in the area.
After hearing the petitioners, the Bombay High Court questioned how such orders could be passed and asked the state government's lawyer to take appropriate instruction.
A division bench of Justices Revati Mohite Dere and Sharmila Deshmukh subsequently recorded the state government's statement and disposed of the plea filed by the eight villagers to quash the orders.
Yes Bank-DHFL Loan Fraud Case: Bombay High Court Rejects Second Bail Plea By Rana Kapoor
Case Title: Rana Kapoor v. Directorate of Enforcement and Anr
Citation: 2023 LiveLaw (Bom) 234
The Bombay High Court denied bail to Yes Bank founder Rana Kapoor in the Yes Bank-DHFL loan fraud case.
Justice PD Naik reasoned that Kapoor is facing serious allegation of laundering public money, and refused bail on ground of long incarceration.
Though the Supreme Court and Bombay High Court have granted bail on the ground of long incarceration, gravity of accusations cannot be brushed aside, the court said.
The court further noted that Kapoor is involved in seven other similar cases. Allegedly, Rs. 378 Crores out of proceeds of crime of Rs. 600 Crores have been invested overseas. Thus, the court held that Kapoor is not entitled to bail considering his alleged role and magnitude of the crime.
Case Title: Palmview Investments Overseas Limited v. Ravi Arya
Citation: 2023 LiveLaw (Bom) 235
The Bombay High Court held that any defect in the board resolution authorizing a person to initiate arbitration is only a procedural and a curable defect, thus, it cannot be a ground for the rejection of the claims and termination of the arbitral proceedings.
The bench of Justices K.R. Shriram and Rajesh S. Patil held that requirement of a board resolution authorizing a person to take legal action on behalf of a company is a procedural requirement and any defect in such a resolution would only be a procedural irregularity and thus it cannot be allowed to defeat a substantive right of a party.
The Court held that in view of Section 19 of the Act, an arbitrator is not bound by the CPC, however, it does not mean that the arbitrator cannot draw sustenance from the procedures as laid down under the Code. It further held that the arbitrator can in fact travel beyond CPC and only fetter on its powers is to observe the principles of Natural Justice.
Case Title: Applause Entertainment Pvt. Ltd. v. Meta Platforms Inc. and Ors.
Citation: 2023 LiveLaw (Bom) 236
The Bombay High Court granted an ad-interim dynamic injunction against 33 Instagram handles and Ashok Kumar (unknown persons) restraining them from using parts of Scam 1992: The Harshad Mehta Story to promote their businesses.
Justice Manish Pitale held that the makers made out a strong prima facie case that the posts violated the proprietary rights of the makers.
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.
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.
Case Title: Buddheshwar S/o Babulal Lilhare v. Maharashtra State Electricity Distribution Company and Ors
Citation: 2023 LiveLaw (Bom) 239
The Bombay High Court clarified that an employer is not bound to terminate an employee who suppresses the fact about the pendency of a criminal case against him.
A division bench of Justice Rohit B Deo and Justice Anil L Pansare said that suppression by a person on a higher post which may be sensitive in nature may be on a different pedestal than suppression by a Class IV employee who is not on a sensitive post.
The court said that other factors such as the nature of accusation and appointment on compassionate ground can be taken into consideration while deciding whether or not to terminate the employee.
Citation: 2023 LiveLaw (Bom) 240
Child custody orders can be altered and moulded at various stages of a child's life keeping in mind his welfare, the Bombay High Court has observed.
A single bench of Justice Neela Gokhale allowed a man to re-approach the Family Court to alter the mutual consent divorce terms with his ex-wife regarding child access, owing to the wife's remarriage.
Case Title: Sunil Wamanrao Sakore v. Union of India
Citation: 2023 LiveLaw (Bom) 241
The Bombay High Court held that the money lying in the corpus of the revenue had simply to be adjusted by way of a mathematical exercise and benefit accorded to the petitioner under the Direct Tax Vivad Se Vishwas Act, 2020 (DTVSV).
The bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata directed the department to issue a fresh Form-3 after giving the petitioner credit for the amount paid under the Income Declaration Scheme, 2016 (IDS) and the balance amount.
An IDS was introduced by Chapter IX of the Finance Act, 2016, which envisaged granting an opportunity to persons to come forward and declare their undisclosed income and pay the applicable tax, surcharge, and penalty on the income so disclosed. The scheme also provided a declarant, among others, immunity from prosecution. The petitioner, with a view to seeking benefits under the IDS, filled up Form-1, dated September 30, 2016, for the relevant year and disclosed an undisclosed income of Rs. 15,50,000.
Bombay High Court Restrains Trust In Late Actor Dada Kondke's Name From Exercising Rights Over 12 Of His Films
Case Title: Everest Entertainment LLP v. Hridaynath D. Kadudeshmukh and Others
Citation: 2023 LiveLaw (Bom) 242
The Bombay High Court temporarily restrained the trust named after Marathi actor-filmmaker Dada Kondke from dealing in the copyrights of 12 of his films.
Justice Manish Pitale passed the order in an Intellectual Property Right suit filed by Everest Entertainment Ltd against Shahir Dada Kondke Pratishthan and others. Everest contended it had acquired the film's rights from Kondke's heir Manik Padmakar More.
The court said it was prima facie satisfied that More had acquired rights in the 12 films, under Kondke's probated Will and therefore restrained two different organisations from handing over the film's negatives.
Case Title: Maherban Hasan Babu Khan v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 243
The Bombay High Court held that the mere non-eruption of wisdom teeth of a person is not sufficient to prove that the person is a minor, while acquitting a man convicted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
Justice Anuja Prabhudessai held that the prosecution could not prove beyond reasonable doubt that the complainant was a child at the time of the incident.
“Eruption of wisdom tooth may at the most suggest that the age of the person is 17 years or above but non-eruption or absence of wisdom tooth does not conclusively prove that the person is below 18 years of age. Therefore, the mere fact that wisdom tooth have not erupted is not of great importance in assessing the age”, the court held.
Case Title: Sunil Kumar Jindal v. Union of India
Citation: 2023 LiveLaw (Bom) 244
The Bombay High Court held that illegality of the appointment procedure does not render the entire arbitration agreement invalid.
The bench of Justice Avinash G. Gharote held that merely because the procedure for the appointment of the arbitrator under the arbitration agreement is rendered invalid on account of the insertion of Section 12(5) and the Supreme Court judgment in Perkins Eastman, the same would not make the entire arbitration agreement unworkable.
The Court held that the choice of getting the dispute resolved through arbitration is one thing and the choice of a specific arbitrator is another thing and both are severable and different from each other. It held that the Courts while dealing with an arbitration clause that has partially become invalid can sever the illegal part and retain the remaining portion when the intention to arbitration is evident.
Case Title: Patanjali Foods Limited v. Meta Platforms Inc & Ors.
Citation: 2023 LiveLaw (Bom) 245
The Bombay High Court temporarily restrained Meta Platforms and Ashok Kumar (unknown persons) from circulating a video regarding Patanjali's Mahakosh Refined Soyabean Oil on Meta's online platforms Facebook and WhatsApp during the pendency of Patanjali's trademark infringement suit.
Justice Manish Pitale held that Patanjali made out a strong prima facie case that the video circulating on Facebook and WhatsApp infringed its registered trademarks and directed Meta to remove the URLs provided in Patanjali's plaint.
“this Court is satisfied that prima facie the ingredients of Section 29(8) (a) and (c) of the aforesaid Act are made out. The contents of the video in question, available an the platform of Defendant No. 1 (Meta Platforms), prima facie appears to have infringed upon the registered trademark of the Plaintiff (Patanjali). A strong prima facie case is indeed made out for granting ad-interim reliefs in favour of the Plaintiff”, the court held.
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 recently 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.
The court held that if the appellant does not deposit the costs, then the appeal will be deemed to have been dismissed.
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.
Case Title: Radheshyam Jangad v. Shanti Pralhad Sakla through Satish Sakla
Citation: 2023 LiveLaw (Bom) 248
The Bombay High Court ordered criminal action against three individuals for producing fake High Court orders before the Small Causes Court in order to gain advantage in a dispute related to a property in Bandra.
Justice Madhav Jamdar ordered action against Satish Sakla, Manisha More and Sagar Patil, who were plaintiffs before the Small Causes Court and submitted the forged documents along with an application to produce additional documents.
Case Title: TML Business Services Limited v. Deputy Commissioner of State Tax
Citation: 2023 LiveLaw (Bom) 249
The Bombay High Court held that the action of the department in making the adjustment of a refund due to the petitioner while considering the application under the Amnesty Scheme without notice to the petitioner is in utter disregard of the well-established principles of natural justice and has caused grave prejudice to the petitioner.
The bench of Justice Nitin Jamdar and Justice Abhay Ahuja has observed that the Statement of Objects and Reasons for Introducing the Amnesty Scheme clearly records that a large number of cases and litigation are pending in respect of the repealed laws pursuant to the introduction of the GST Act, locking in a substantial amount of tax. Therefore, the government considered it expedient to provide a scheme for the settlement of arrears of tax, interest, penalty, or late fee for the period ending on or before June 30, 2017, so that the settlement of such disputes would safeguard the revenue and also settle the arrears of tax.
Case Title: M/s. Aditi Constructions v. Deputy Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 250
The Bombay High Court held that the onus lies on the AO to provide reasons to disbelieve the bank statements and supporting documents for reopening the assessment.
The bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata has observed that the AO has acted in excess of the limit of his jurisdiction to reopen the assessment in the exercise of powers under Section 147 read with Section 148 of the Income Tax Act.
Citation: 2023 LiveLaw (Bom) 251
The Bombay High Court quashed a C-Summary Report filed by the Investigating Officer before a Judicial Magistrate in a case wherein the allegations of the offence of Bigamy (Section 494 IPC) were involved.
The bench of Justice PD Naik and Justice AS Gadkari also slammed the Investigating Officer for the recording of the second 'main' statement of the victim by terming the same to be contrary to the basic provisions of Cr.P.C. and criminal jurisprudence.
A 'C-Summary' Report is filed by the police before the Concerned court in matters when the criminal case is registered due to a mistake of facts or the offence complained about is of a civil nature.
As per Law, the Investigating Officer could not have recorded the second main statement of the victim as the Law only provides for the recording of a supplementary statement and the main/first statement can be recorded only once.
Case Title: Harish Kumar Garg v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 252
The Bombay High Court recently refused to quash a lawyer's defamation complaint against Bombay Presidency Radio Club President Harish Kumar Garg for his remarks about a dispute regarding the election to the club's management committee held in 2018.
Justice Amit Borkar refused to quash the complaint against Garg's comments given to Mumbai Mirror, published on September 29, 2018, observing that they appeared to be only partly true and advocate Ravi Goenka, the complainant, deserves a chance to prove his allegations.
The court said that at some stage some relief was granted to Goenka and in the subsequent stages the relief was refused. However, whether the statement that 'no court has granted him any interim relief' is true or false has to be ascertained at the stage of trial, the court held.
The court reiterated that truth as a defence must extend to the entire statement, and it is not sufficient that only part of the statement is proved to be true.
Case Title: Chanchal Bhagwatilal Gokhru v. Union of India
Citation: 2023 LiveLaw (Bom) 253
The Bombay High Court quashed the reassessment proceedings triggered by a change of opinion as to the calculation of tax payable by the assessee.
The bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata has found no substance in the AO's reason to believe that income chargeable to tax has escaped assessment in so far as there is no mention of any tangible material that led to his conclusion.
The petitioner/assessee had filed her return of income for AY 2014-15 on July 28, 2014. The AO had passed an order under Section 143 (3) by which he added Rs. 1,07,18,922 to the total income on account of the withdrawal of exemption claimed by the petitioner under Section 10(38), and the petitioner paid tax on it. The petitioner was granted a waiver of penalty for the AY 2014–15 on an application under Section 273A by the PCIT.
The reassessment notice was issued after a period of four years, following which a return of income was filed by the petitioner. It was followed by a notice under Section 143(2) and a notice under Section 142(1) seeking details, to which the petitioner filed a response and objected to the reassessment by communication.
The court held that reconsideration of the material available at the time of the original assessment proceedings was tantamount to a change of opinion and therefore invalid.
Case Title: Ashish Devidas Morkhade v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 254
The Bombay High Court recently upheld an order directing criminal prosecution of the investigating officer (IO) under Section 59 of the NDPS Act for his prima facie failure to file the chargesheet within the stipulated period.
Under Section 59 an officer who fails to perform his duty prescribed under the act or who connives with an accused can be punished with imprisonment for a term extendable up to one year and/or with fine.
“It needs to be stated that as and when it is found by any Court at any stage of proceeding that the actionable wrong within the meaning of Section 59 of the NDPS. Act has been committed then in that event it has to be approached and dealt with firmly by initiating an appropriate action,” Justice GA Sanap said.
The bench rejected the officer's explanation that he was busy with other investigations entrusted by his superiors and therefore wasn't able to file the chargesheet in time.
Case Title: Nalini W/o Natthuji Shende v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 255
The Nagpur bench of Bombay High Court recently held that a private school employee terminated on proven misconduct is a dismissed employee and is not eligible to compassionate pension.
A division bench of Justice Rohit B Deo and Justice Vrushali V Joshi dismissed a writ petition filed by a terminated private school employee, who sought compassionate pension claiming she was “removed” and not “dismissed” from service.
“Unlike the Discipline and Appeal Rules, the MEPS Rules do not envisage the removal, termination or dismissal as separate and independent penalties. There is no special significance to the expression removal or termination or dismissal in the context of the major penalty prescribed. In our considered view, an employee, who is terminated on proven charge constituting serious misconduct, is a dismissed employee, who is ineligible to compassionate pension under Rule 101(3) of the Pension Rules and the authority is absolutely right in the view taken”, the court held.
Case Title: Baliram S/o Reva Chavhan v. Gajanan S/o Shekrao Wanjare
Citation: 2023 LiveLaw (Bom) 256
The Bombay High Court recently held that recognition of a person as Tribal after the date he transfers his land to a non-tribal would not entitle the transferrer to restoration of the land under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.
A full bench comprising of Justice Sunil B Shukre, Justice AS Chandurkar, and Justice Anil L Pansare sitting at Nagpur held –
“Subsequent recognition of a transferor as a Tribal within the meaning of Section 2(1)(j) of the Restoration Act would not entitle him to seek restoration of the land transferred by him to a non-Tribal-transferee and his subsequent recognition as such is of no assistance to him for the purpose of availing of the benefit of Section 3 of the Restoration Act.”
The court held that a tribal-transferor who is the beneficiary of the Restoration Act must be a person belonging to a Scheduled Tribe at the time when the he transfers his land to a non-tribal transferee.
“…the social status of a person as a Scheduled Tribe on the date of the transaction and not his natural identity as a member of a tribe is what matters and if he does not possess that status on the date of transaction, he would not be entitled to restoration of his land from the non-tribal”, the court added.
Case Title: Joan Mascarenhas E D'Souza v. State of Goa
Citation: 2023 LiveLaw (Bom) 257
Prohibiting individuals from carrying out any religious activities on their property through an order under section 144 of the CrPC is a direct violation of their fundamental rights enshrined in Article19(1), Articles 25 and 26 of the Constitution of India the Bombay High Court held.
The Goa bench comprising Justices Mahesh Sonak and Valmiki Menezes quashed an order passed under section 144 of the CrPC by the district magistrate against a Christian couple accused of religious conversion.
The court said that the petitioner and her husband were within their rights to propagate their own religion and to profess it in any manner that they please though within the bounds of law, more so, when it is within their own private property.
Case Title: Mahendra Dattu Gore v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 258
The Bombay High Court ordered de-sealing of factory premises in Chakan near Pune and observed that police don't have the power under section 115 of the Trademarks Act to seal factory premises where incriminating articles were situated.
A vacation bench of Justice Sharmila Deshmukh and Arif Doctor noted,
“The provisions of sub-section (4) of section 115 of the Trade Marks Act, 1999 permits the police officer to seize without warrant the articles / items which are enumerated in the said sub-section. It is not disputed that there is no power vested with the police to seal the factory premises.”
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: Kavita w/o. Waman Kokode vs Govt of Maha
Citation: 2023 LiveLaw (Bom) 260
The Bombay High Court has awarded Rs. 1 lakh compensation to a woman for the trauma of surviving a tiger attack and expressed shock at the casual manner in which forest officials wrote off the bravery awardee's wounds as 'simple injuries.'
A division bench comprising Justices Rohit Deo and Vrushali Joshi set aside the order of the Assistant Conservator of Forest.
“We are shocked with the decision taken by the Assistant Conservator of Forrest considering the injuries sustained in Tiger attack as simple injuries and calculating the amount of Rs.10,000/- towards compensation when the Government has honoured her by giving Bravery Certificate.”
“Considering the trauma received by her without considering the nature of injury whether simple or grievous, the respondents should have to consider the attack by the wild animal that too the Tiger, she is entitled to receive Rs.1,00,000/- as per the Government Resolution,” the bench said.
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.
Case Title: Pramod v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 262
The Bombay High Court held that on superannuation, non-teaching staff of aided social work colleges are also entitled to leave encashment under the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Rules, 1984.
A division bench comprising Justices Rohit Deo and Vrushali Joshi allowed an Assistant Librarian's plea who was directed to return Rs. 5.2 lakh he received as leave encashment after 34 years of service.
“We have no hesitation in holding, that the petitioner and similarly situated employees are entitled to the benefit of leave encashment in view of Rule 39 of the Rules of 1984,” the bench ruled.
This judgment assumes significance as the State stopped leave encashment for non-teaching staff on the ground that it was not specifically provided in a Government Resolution issued in 2014. The court found the State's reliance on the GR untenable.
Case Title: Sanville Adrian Dsouza Alias Sam Dsouza v. Union Of India and Ors.
Citation: 2023 LiveLaw (Bom) 263
Sam D'Souza, accused in Rs 25 Crore extortion case regarding Aryan Khan's arrest in 2021, withdrew his quashing petition after the Bombay High Court expressed disinclination to grant him interim protection from arrest.
A vacation bench of Justice Abhay Ahuja allowed D'Souza to withdraw his petition while keeping all his contentions open.
D'Souza can seek anticipatory bail before the Sessions Court.
Case Title: Irfan Moiuddeen Saiyyed and Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 264
The Bombay High Court recently held that police cannot seek to add additional sections and extension of judicial custody by a mere letter to the judge without submitting remand papers and bringing the new sections to the notice of the accused.
Justice SG Mehare of the Aurangabad bench observed that the accused has to be given an opportunity to contest the additional charges brought against him. It granted default bail to four persons accused of cryptocurrency fraud.
“…in the absence of submitting the remand papers without knowledge of the accused, the prosecution cannot by a bare letter addressed to the Court, seek the extension of remand more than the period prescribed under Section 167 of the Cr.P.C…the extension of remand, particularly after adding new sections constituting the serious offence, is not a bare formality. The Court extending the detention of the accused for a period more than prescribed under the law has to pass a speaking order after hearing both sides,” the court held.
Case Title: Pinkesh Dhiraj Patel and Anr. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 265
The Bombay High Court refused to quash a culpable homicide case against two sub-contractors of a construction site in Goregaon where a worker died after falling on exposed iron bars in an RCC column.
A division bench of Justice Sunil B Shukre and Justice MM Sathaye held that leaving the vertical iron bars exposed prima facie makes out a case for culpable homicide not amounting to murder as the accused knew that workers in cranes suspended in air are working over them.
“apart from omission on the part of the Petitioners, there is also prima facie an overt act on their part which is in the nature of leaving dangerously exposed vertical iron bars embedded in the RCC column at the construction site. The Petitioners had, prima facie, knowledge that construction work over these bars was being carried out by men sitting in cabins of the cranes suspended in air and, therefore, leaving dangerously exposed vertical iron bars was like an invitation to disaster. It is this material which prima facie makes out a case for proceeding further against the Petitioners in the present criminal trial”, 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.
