Bombay High Court Monthly Digest: October 2023

Wynk Ltd. v. Tips Industries Ltd. 2023 LiveLaw (Bom) 464

Dolby Builders Private Ltd. and Anr. v. Municipal Corporation of Greater Mumbai and Ors. 2023 LiveLaw (Bom) 465

Maharashtra Rajya Apang Karmachari Sanstha v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 466

Sunil s/o Fattesing Sable v. State of Maharashtra 2023 LiveLaw (Bom) 467

State of Maharashtra v. Dr. Anil Kacharu Shinde 2023 LiveLaw (Bom) 468

Knight Riders Sports Pvt. Ltd. Versus ACIT 2023 LiveLaw (Bom) 469

Dinanath Manik Katkar v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 470

Vaibhav Subhash Raut v. State of Maharashtra (ATS) 2023 LiveLaw (Bom) 471

Hatim Fidaali Rajkotwala and Anr. v. Land Acquisition Officer 2023 LiveLaw (Bom) 472

Dr. Kamal Chandra Tiwari v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 473

Ramkali Dayakisan Gupta & Anr v. Union of India & Ors. 2023 LiveLaw (Bom) 474

Bachpan Bachao Andolan & Anr. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 475

Dr. Mahendra Vilas Phalke And Ors vs State of Maharashtra 2023 LiveLaw (Bom) 476

Mohammed Atiq Ibrahim Ansari v. Central Board of Film Certification & Ors. 2023 LiveLaw (Bom) 477

Lalit S/o Nandlal Bais v. State of Maharashtra 2023 LiveLaw (Bom) 478

ABC v. State of Maharashtra 2023 LiveLaw (Bom) 479

Ravindra Dattaram Waikar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 480

ABC v. XYZ 2023 LiveLaw (Bom) 481

Mukesh Rajaram Chaudhari v. State of Maharashtra 2023 LiveLaw (Bom) 482

Sandip Sundarrao Patil and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 483

Bhushan s/o. Sangappa Chaudhari v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 484

Satyaseelan Kuttappan v. PP Sudhakaran and Anr. 2023 LiveLaw (Bom) 485

Play Games 24X7 Pvt. Ltd. Vs Loran Leasing And Infotech Pvt. Ltd. 2023 LiveLaw (Bom) 486

Parvi Ashish Chakravarti v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 457

Baramati Agro Ltd. v. Regional Officer, Maharashtra Pollution Control Board and Ors. 2023 LiveLaw (Bom) 488

Faaiz Anwar Qureshi v. Union of India and Ors. 2023 LiveLaw (Bom) 489

Nilesh s/o Ajinath Udmale, v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 490

Dr. Mahendra Bhaskar Limaye v. Union of India 2023 LiveLaw (Bom) 491

Aarti w/o Santosh Pawar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 492

Swiss Re Services India Pvt. Ltd. v. Deputy Commissioner Of Income-Tax 2023 LiveLaw (Bom) 493

Film Farm India Pvt Ltd v. ALT Digital Media Entertainment Ltd. 2023 LiveLaw (Bom) 494

Dr. P. Varavara Rao v. National Investigation Agency and Anr. 2023 LiveLaw (Bom) 495

Indumati Borse v. Pune Municipal Corporation and Ors. 2023 LiveLaw (Bom) 496

Sameer Baijanath Joshi v. Union of India and Ors. 2023 LiveLaw (Bom) 497

Zakir Yusuf Shaikh v. State of Maharashtra 2023 LiveLaw (Bom) 498

M/s. Neelkamal Realtors Suburban Pvt Ltd v. Office of the Custodian of Enemy Property of India 2023 LiveLaw (Bom) 499

Partha Sarathy Sarkar v Insolvency & Bankruptcy Board of India & Ors. 2023 LiveLaw (Bom) 500

Rakesh Kumar Wadhawan v. State of Maharashtra 2023 LiveLaw (Bom) 501

Appasaheb Pandurang Yadav (Deceased) Through his legal heir v. Appasaheb Virupaksh Tandale 2023 LiveLaw (Bom) 502

Nitin Dwarkadas Nyati v. Union of India and Ors. 2023 LiveLaw (Bom) 503

Sanjay Nathmal Jain v. State of Maharashtra 2023 LiveLaw (Bom) 504

Sunil Shishupal Nayak v. State of Maharashtra 2023 LiveLaw (Bom) 505

Anandraj Manikam v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 506

Nikhil Ashokrao Waghmare and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 507

Manik Chandru Deokar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 508

Reports/Judgments

Wynk v. TIPS | Internet Based Music Streaming Platforms Not Eligible For Compulsory Music Licences Available For TV, Radio: Bombay HC

Case Title: Wynk Ltd. v. Tips Industries Ltd.

Citation: 2023 LiveLaw (Bom) 464

The Bombay High Court held that online music streaming and downloading platforms would not be eligible for discounted compulsory licenses to their music under Section 31D of the Copyrights Act.

This means that internet-based platforms will have to negotiate contracts with big record companies to use their repertoire of music unlike radio and television networks.

A division bench comprising Justices Gautam Patel and Gauri Godse upheld an order passed by Justice SJ Kathawalla, now retired, in a dispute between Bharati Airtel Ltd’s WYNK Ltd and Tips.

Bombay High Court Paves Way For Reconstruction Of Dainik Bhaskar Director’s House Near INS Trata Without NOC From Naval Authorities

Case Title: Dolby Builders Private Ltd. and Anr. v. Municipal Corporation of Greater Mumbai and Ors.

Citation: 2023 LiveLaw (Bom) 465

The Bombay High Court directed BMC to process within four months the application for permission to reconstruct a three-storey house in Worli for Dainik Bhaskar director Girish Agarwal without requiring a No Objection Certificate from Naval authorities- due to the site’s proximity with naval missile battery base INS Trata.

A division bench of Justice Sunil B Shukre and Justice MW Chandwani applied the Wednesbury principle of unreasonableness, and concluded that requiring an NOC for a building of the same height as the previous one, which did not pose security risks, is unreasonable.

The court also quashed four Defence Ministry circulars dated May 18, 2011, March 18, 2015, November 17, 2015 and December 23, 2022 imposing certain restrictions on use of land near “Defence Establishments” such as INS Trata.

Bombay High Court Calls For Conversion Of One Washroom In The HC Building To Make It Disabled-Friendly

Case Title: Maharashtra Rajya Apang Karmachari Sanstha v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 466

The Bombay High Court instructed its registry to propose the conversion of one of the washrooms in the High Court building in Mumbai into a facility that can be used by orthopedically disabled persons in wheelchairs.

Addressing Advocate Uday Warunjikar’s submission that the High Court building doesn’t have a single washroom accessible to the wheelchair bound persons, the court said –

“We would, therefore, request the registry to consider this difficulty, prepare an appropriate proposal for either conversion of one of the washrooms in High Court building at Mumbai into a washroom to be used for the wheel chaired, orthopedic disabled persons and place it before the appropriate committee for its due consideration as early as possible. Registrar (Original Side) is requested to do the needful”.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla was dealing with a writ petition from 2021 seeking necessary assistive devices and facilities in government establishments in the State.

POCSO Act | Bone Ossification Test Vital Only When Victim On Cusp Of Majority, Bombay HC Accepts Victim A Minor Based On Father's Evidence

Case Title: Sunil s/o Fattesing Sable v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 467

The Bombay High Court held that bone ossification test to determine the age of victim in a case under the Protection of Children from Sexual Offences Act, 2012 is required only when the victim is on the cusp of majority.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad dismissed a man’s appeal against conviction and life sentence for raping a 14-year-old child and observed that her age was proved from her father’s testimony.

Prevention Of Corruption Act | Bombay High Court Stated That Small Bribe Amount Can Be Excused From Prosecuting The Accused

Case Title: State of Maharashtra v. Dr. Anil Kacharu Shinde

Citation: 2023 LiveLaw (Bom) 468

Rs. 100 is a very trivial amount to pursue prosecution under the Prevention of Corruption Act, the Bombay High Court observed.

Justice Jitendra Jain upheld the acquittal of a medical officer accused of accepting a Rs. 100 bribe in 2007 observing –

“In the instant case, the allegation is acceptance of bribe of Rs.100/- in the year 2007. The amount appears to be too small in the year 2007 and moreso, in the year 2023 when the appeal is being heard against the acquittal. Therefore, assuming that the appellant-complainant is able to prove the charges, (although, I have already held that they have failed to prove the charges), in my view after considering quantum at the relevant time this could be a fit case to be treated as a trivial matter to uphold the acquittal order”, said the court.

The court also held that the prosecution failed to prove the charges against Dr. Anil Kacharu Shinde, the 44-year-old medical officer.

Bombay High Court Quashes Reassessment Against Knight Riders Sports

Case Title: Knight Riders Sports Pvt. Ltd. Versus ACIT

Citation: 2023 LiveLaw (Bom) 469

The Bombay High Court quashed the reassessment against Knight Riders Sport and held that a change of opinion does not constitute justification to believe income chargeable to tax escaped assessment.

The bench of Justice K. R. Shriram and Justice Kamal Khata has observed that there is a change of opinion because once a query has been raised during the assessment and has been answered and accepted by the AO while passing the assessment order, it follows that the query raised was a subject of consideration of the AO while completing the assessment.

Bombay High Court On Anticipatory Bail | POCSO Act Prevails Over Atrocities Act Only If Allegations Under POCSO Are Readily Apparent And Court Proven

Case Title: Dinanath Manik Katkar v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 470

The Bombay High Court held that provisions regarding anticipatory bail in the POCSO Act would not prevail over provisions of appeal in the SC and ST (Prevention of Atrocities) Act if the allegations under POCSO Act are not prima facie made out against the accused.

Justice NJ Jamadar, while dealing with an anticipatory bail application of a person accused under both POCSO Act and Atrocities Act, observed –

“Apart from a passing reference that there were girls in the procession and they were also video-graphed, there is no other allegation which would prima facie fall within the dragnet of section 12 of the Act, 2012. In the circumstances, it would be appropriate that the applicant prefers an appeal as envisaged by section 14A(4) of the SC and ST Act, 1989.”

Bombay High Court Grants Bail To Alleged Sanatan Sanstha Member Vaibhav Raut Accused Of Making Bombs To Attack 2018 Sunburn Festival At Pune

Case Title: Vaibhav Subhash Raut v. State of Maharashtra (ATS)

Citation: 2023 LiveLaw (Bom) 471

The Bombay High Court granted bail to Vaibhav Raut, prime accused in Nalasopara Arms Hauls case who was arrested in 2018 on charges of being a member of right wing group Sanatan Sanstha and plotting an attack on the Sunburn Festival with crude bombs.

The Maharashtra’s Anti-Terrorism Squad found eight crude bombs in Raut’s house while 12 crude bombs were recovered from a godown along with a diary which detailed his planning and preparation for crude bombs.

However, a division bench comprising Justices Revati Mohite Dere and Gauri Godse granted bail to Raut mainly on grounds of parity with other co-accused and prolonged incarceration of five years since the trial against him wouldn’t conclude anytime soon.

Land Acquisition | Bombay High Court Directs Over Rs. 1.6 Crore Interest to Landowner As Compensation Not Deposited Before Taking Possession

Case Title: Hatim Fidaali Rajkotwala and Anr. v. Land Acquisition Officer

Citation: 2023 LiveLaw (Bom) 472

The Bombay High Court held that landowners are entitled to interest on the compensation amount if the compensation is not paid or deposited before the acquiring body takes possession of the property.

A division bench of Justice BP Colabawalla and Justice MM Sathaye directed the Collector, Mumbai City, to pay interest to the tune of Rs. 1.6 Crores for acquisition of two properties in Bhendi Bazaar, Mumbai.

The court directed the Collector to pay interest to the Petitioners at a rate of 9 percent per annum for the first year from the date of taking possession and 15 percent per annum from the start of the second year until the actual payment, which was made on October 20, 2022.

The court allowed two writ petitions seeking interest on the compensation awarded to the petitioners under section 80 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the 2013 Act).

Bombay High Court Orders Police Officer To Compensate NDA Professor Falsely Prosecuted For Alleged Fake Disability Certificate

Case Title: Dr. Kamal Chandra Tiwari v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 473

The Bombay High Court ordered compensation of Rs. 25,000 to be paid to one Dr. Kamal Chandra Tiwari, an Assistant Professor at the National Defence Academy, Pune falsely prosecuted for producing fake disability certificates.

A division bench of Justice Nitin W Sambre and Justice RN Laddha ordered the compensation to be recovered from the salary of the police officer who filed a chargesheet despite being informed by the hospital that records of the disability certificates had been found.

The court observed that despite receiving a communication from Sassoon Hospital on September 9, 2016, confirming the availability of the original record, Pagare did not reexamine the case. The doctors’ statements were obtained before the original records were located; the court noted.

The court acknowledged the officer’s apology, but emphasized that his actions caused mental agony, compromised Tiwari's dignity, and constituted a malicious prosecution.

Govt Itself Seeks Needless Adjournments Then Makes Assertions About Rising Pendency Of Cases: Bombay High Court

Case Title: Ramkali Dayakisan Gupta & Anr v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 474

The Bombay High Court took a dig at the Centre’s dichotomous approach in often blaming Courts for restricting its “ease of doing business” on one hand and repeatedly seeking adjournments of cases on the other.

A division bench of Justices Gautam Patel and Kamal Khata observed,

“We are equally mindful, and we are constrained to say this, that we are no strangers to repeated assertions from the Union Government itself regarding pendency of cases, mounting arrears, frequent adjournments and impediments allegedly caused by our Courts to what the Government calls ‘the ease of doing business’.”

The court said despite these claims by the government it often sought adjournments needlessly.

“Conveniently overlooked in all these assertions is the fact that it is the Government that is by far the largest litigant, and it is the Government that most often seeks adjournments, frequently needlessly. This case is an example.”

Nullifies Spirit Of JJ Act: Bombay High Court Seeks Explanation For High Pendency Of 40K Cases Before Juvenile Justice Board And Child Welfare Committee

Case Title: Bachpan Bachao Andolan & Anr. v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 475

The Bombay High Court flagged the collective pendency of over 40,051 cases before the Juvenile Justice Board (JJB) and the Child Welfare Committee (CWC) while hearing a PIL by an NGO.

The division bench of Justices Nitin Jamdar and Manjusha Deshpande observed that the startling numbers were nullifying the spirit if the Juvenile Justice Act 2015.

“…the figures of 10,008 cases pending before the Juvenile Justice Board and 30,043 cases pending before the Child Welfare Committee would amount to nullifying of spirit of the Act.”

Bombay High Court Passes Interim Order For Reinstatement Of 17 Govt Hospital Doctors Pending Retirement Age Dispute

Case Title: Dr. Mahendra Vilas Phalke And Ors vs State of Maharashtra

Citation: 2023 LiveLaw (Bom) 476

The Bombay High Court granted interim relief to at least 17 doctors and directed the Maharashtra Government to reinstate them in government hospitals till they complete 60 years of age. The order, however, would be subject to the final outcome of the petition.

The doctors alleged they were forcefully relieved from their services of 30-35 years owing to the misinterpretation of a 2022 government notification.

Rule 10 of the Maharashtra Civil Services (Pension) Rules, 1982 specified the retirement age of government servants such as the Petitioners as 58 years. However, owing to the dearth of Medical officers, the Public Health Department issued a resolution on August 29, 2018 and decided to extend the age of retirement to 60 years. It was further resolved that an amendment would be made to the Rules. The amendment finally came to effect on February 23, 2023. However, the proviso in the said notification said its effect will be only till May 31, 2023 which resulted in such doctors being relieved from their respective posts.

“I Killed Bapu” Film Produced To Defame Mahatma Gandhi, Claims Petitioner, Bombay High Appoints Panel To Preview

Case Title: Mohammed Atiq Ibrahim Ansari v. Central Board of Film Certification & Ors.

Citation: 2023 LiveLaw (Bom) 477

Bombay High Court appointed a three-member panel to preview the film “I Killed Bapu” to check for objectionable material or any other material with the potential of seriously threatening societal disharmony.

A bench of Justices Sunil Shukre and Firdosh Pooniwalla appointed a committee comprising Chief Justices (Retd) Amjad Sayed, Justice Abhay Thipsay and veteran actor/director Amol Palekar to review the film and submit their report.

“We request the panel to take a preview of the film “ I Killed Bapu” at the place suggested by them and consider whether the film has any such objectionable material or has any potential of seriously threatening societal disharmony and submit its report accordingly to this court, within a period of two weeks of the preview taken by panel, which report shall be without prejudice to the rights and contentions of both sides,” the order stated.

Bombay High Court Calls For "Progressive" View On Obscenity, Says Wearing Short Skirts, Dancing Provocatively Not Per Se Obscene

Case Title: Lalit S/o Nandlal Bais v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 478

Women dancing provocatively in skimpy clothes or making gestures are not “obscene” or “immoral” acts which could annoy someone, the Bombay High Court's Nagpur bench has held.

A division bench of Justices Vinay Joshi and Valmiki Menezes quashed an FIR against five men accused under Section 294 (obscenity) of the IPC and under sections of the Maharashtra Police Act for indecency in public and the Maharashtra Prohibition Act, 1949.

The police filed an FIR after conducting a raid at the Banquet Hall of a Resort and Water Park where six women were allegedly found dancing in short skirts and the applicants were showering money on them. Both men and women were booked in the case.

“We are of the considered opinion that the acts of the Accused Nos.13 to 18 (female dancers) referred to in the complaint/FIR, namely wearing short skirts, dancing provocatively or making gestures that the Police Officials consider obscene cannot be termed to be per se obscene acts, which could cause annoyance to any member of the public.”

Bombay High Court Grants Relief To Minor's Father Booked After Failed Prosecution, Says Purpose Of POCSO Act Not To Discourage Victims

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 479

The Bombay High Court observed that the Protection of Children from Sexual Offences Act, 2012 is not meant to discourage victims from registering complaints due to the fear that they may be prosecuted for false evidence if the prosecution fails to prove its case.

Justice MS Karnik, while quashing a complaint against father of a minor victim booked for giving false evidence, observed –

“The object of the POCSO Act is to ensure justice to the victims who have suffered the offence...The purpose is to obligate reporting of cases and recording of offences and not to discourage victims with a sword of a prosecution hanging over them in case the prosecution is not successful in establishing the offence against the accused person/s. Section 22 provides for punishment for false complaint or false information. The present is not a case of making false complaint or providing false information. This is a case where the prosecution failed to prove the offence against the accused.”

The court held that merely victim and her father turning hostile in a case under the POCSO Act does not mean that they gave false evidence and are liable to be prosecuted under section 22 (punishment for false complaint or false information) of the Act, as there can be many reasons for a victim’s change in stance.

Bombay High Court Dismisses Uddhav Faction MLA Ravindra Waikar's Plea Alleging Discrimination In Development Fund Allocation To Opposition MLAs

Case Title: Ravindra Dattaram Waikar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 480

The Bombay High Court dismissed a plea filed by Shiv Sena (Uddhav Balasaheb Thackeray) group MLA Ravindra Waikar alleging gross discrimination in allocation of Maharashtra Local Development Funds assigned to the Members of the Legislative Assembly (MLA) and Members of the Legislative Council (MLC).

The MLD funds are meant for MLAs and MLCs to develop their respective constituencies are disbursed through the District Planning Commission by the State of Maharashtra.

The division bench comprising Justices Sunil Shukre and Rajesh Patil pronounced the order.

"We have found there is no sufficient material for us to test to fairness of the government's decision to allocate funds," it said.

Since the issue raised pertains to the administrative powers of the state, it can only be examined on Wednesbury's principle of "unreasonableness," the court said.

Child "Emotionally Attached" To Her: Bombay HC Appoints Aunt As Guardian Of 4-Yr-Old; Cites Mother's Psychological Issues, Father's Aggression

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 481

The Bombay High Court appointed the paternal aunt of a four-year-old boy as his legal guardian while allowing his parents to visit him frequently and occasionally take him for outings with the condition that the child returns to his aunt’s custody on the same day.

Justice RI Chagla observed that the child is extremely attached to his aunt and took note of the psychological issues faced by his mother as well as the aggressive behaviour of his father while granting custody of the child to his aunt.

NDPS Act | Non-Compliance With S.52A Does Not Automatically Entitle Accused To Bail, Stringent Conditions For Bail U/S 37 Still Apply: Bombay HC

Case Title: Mukesh Rajaram Chaudhari v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 482

The Bombay High Court held that an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 would not become entitled to bail merely because samples sent for forensic analysis were not drawn in front of a magistrate.

Justice MS Karnik refused bail to a man arrested for allegedly possessing commercial quantity of Codeine observing that the stringent conditions for bail under section 37 would continue to apply even if procedure prescribed under section 52A for drawing samples is not followed.

“At the stage when the court is concerned with the question of granting or refusing bail, this cannot be the sole consideration. It may be one of the relevant considerations but cannot be the sole consideration on the basis of which the moment it is shown that the procedure under Section 52A of the NDPS Act is not followed, the accused automatically becomes entitled to bail as a matter of right. The rigors of Section 37 of the NDPS Act would continue to apply”, the court held.

Bombay High Court Imposes 25K Cost On Complainant Who Admitted To Consenting To Abortion, Quashes Forced Abortion Case

Case Title: Sandip Sundarrao Patil and Ors. v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 483

While quashing a rape and causing miscarriage without consent case, the Bombay High Court imposed cost of Rs. 25000 on a woman who consented to quashing of the case admitting that she had voluntarily terminated her pregnancy.

A division bench of Justice Anuja Prabhudessai and Justice NR Borkar observed that there is no prima facie case of rape under false promise of marriage as she had been married while having physical relations with the accused. The records indicated that she consented to the termination of pregnancy, the court further noted.

Bombay High Court Refuses To Reinstate College Student Who Submitted Caste Validity Certificate After Deadline Due To Delay By Scrutiny Committee

Case Title: Bhushan s/o. Sangappa Chaudhari v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 484

The Bombay High Court refused to reinstate the college admission of a student who failed to submit a Caste Validity Certificate on time due to a delay by the Caste Scrutiny Committee in processing his application.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla explained that the fixation of specific dates as deadlines for students was a matter of policy, and the court could only direct authorities to relax the policy when necessary to protect fundamental rights or rectify illegalities. In this case, there was no such necessity.

“…it would be not appropriate on the part of this Court to direct the authorities to restore the admission of the Petitioner on the ground that there was no fault on his part in submitting the Validity Certificate on or before the last date fixed for that purpose”,

The court also held that time frame prescribed in Rule 18(5) of the Caste Certificate Rules, 2012 to process the applications is directory, not mandatory.

S. 141 NI Act | No Restriction On Making Unregistered Firm An Accused In A Cheque Bounce Case: Bombay High Court

Case Title: Satyaseelan Kuttappan v. PP Sudhakaran and Anr.

Citation: 2023 LiveLaw (Bom) 485

The Bombay High Court held that an unregistered partnership firm can be made an accused in a cheque dishonour case under the Negotiable Instruments Act, 1881 (NI Act).

Justice Anil Pansare of the Nagpur bench observed that the status of registration of the partnership firm is irrelevant on proceedings for cheque dishonour under the NI Act.

“registration or non-registration of the partnership firm will have no bearing insofar as Section 141 of the Act of 1881 is concerned. The provision under Section 141 of the Act of 1881 makes it mandatory to arraign the company or the firm, as the case may be, as party accused in the complaint. This provision or any other provision of the Act of 1881 does not put embargo on making unregistered partnership firm an accused”, the court held.

Counter Claim For Damages From Tenant No Defence To Escape Admitted Liability Of Refunding Tenant's Security Deposit: Bombay High Court

Case Title: Play Games 24X7 Pvt. Ltd. Vs Loran Leasing And Infotech Pvt. Ltd.

Citation: 2023 LiveLaw (Bom) 486

Owner filing a suit for damages from his licensee cannot be the only defense to the admitted liability of refunding a licensee’s security deposit, the Bombay High Court held while refusing to grant a company unconditional leave to defend a summary suit.

Justice Kamal Khata directed the owner of a 17,196 sq ft premises in Mumbai - Loran Leasing and Infotech Pvt.- to deposit the entire security deposit of over Rs. 90 lakh along with 18% interest in court and only then defend the suit filed by licensee Play Games 24X7 Pvt. Ltd.

If the defendant Loran fails to pay the amount, Play Games would be entitled to apply for an ex-parte decree against Loran, the court ordered.

“In the present case the defence is everything else but genuine or based on good faith… It is amply clear that the Defendant seeks to recover damages and compensation from the Plaintiff in its own suit which certainly cannot be a defence to the admitted liability of refunding the security deposit,” the court said.

Merely Displaying Jesus Christ Photo In House Doesn't Mean A Person Has Converted Into Christianity: Bombay High Court Orders Caste Certificate

Case Title: Parvi Ashish Chakravarti v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 457

Merely displaying Jesus Christ’s picture in the house wouldn’t mean a person has converted and become a Christian, the Bombay High Court at Nagpur said while taking strong exception to the Caste Scrutiny Committee’s rejection of a 17-year-old’s ‘Scheduled Caste’ claim.

“No sane man will accept or believe that merely because there is a photograph of Jesus Christ in the house would ipso facto mean that a person had converted himself into Christianity,” Justices Prithviraj Chavan and Urmila Joshi Phalke observed while allowing the petition.

The bench warned the District Caste Certificate Scrutiny Committee (DCCSC) for ignoring pre-constitution public documents of the petitioner belonging to the ‘Mahar’ caste as also all the Buddhist rituals followed by the family for generations.

Bombay High Court Quashes Closure Order Against Distillery Linked To NCP MLA Rohit Pawar, Asks Pollution Control Board To Decide Afresh

Case Title: Baramati Agro Ltd. v. Regional Officer, Maharashtra Pollution Control Board and Ors.

Citation: 2023 LiveLaw (Bom) 488

The Bombay High Court set aside an order of the Maharashtra Pollution Control Board (MPCB)’s directing closure of a distillery owned by Baramati Agro Ltd, a sugar firm controlled by NCP MLA Rohit Pawar.

Justices Nitin Jamdar and Manjusha Deshpande remanded the matter back to the MPCB for fresh consideration.

The Board overlooked various important factors like the principle of proportionality, the court said.

“To conclude, the Board, while taking the impugned decision in an expedited manner, has overlooked various important factors, such as the Petitioner's second reply, the Enforcement Policy, and the principle of proportionality. The Board had to consider aspects such as the extent of violations, degree of environmental threats, the option of setting compliance timelines, and the possibility of alternative deterrent measures. Neither the impugned order nor the reply affidavit show that a considered decision-making process was adopted before taking the decision,” the court said and remanded the matter back.

Bombay HC Dismisses Plea To Ban Engagement Of Pakistani Artists In India; Says Patriotism Is In Devotion To Country, Not Enmity Towards Another

Case Title: Faaiz Anwar Qureshi v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 489

The Bombay High Court dismissed a petition seeking a complete ban on Indian citizens, companies, and associations from engaging Pakistani artists, including actors, singers, musicians, lyricists, and technicians.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla observed that the petition is a “retrograde step in promoting cultural harmony, unity and peace, and has no merit in it.”

“A person who is good at heart would welcome in his country any activity which promotes peace, harmony, and tranquility within the country and across the border, Arts, music, sports, culture, dance and so on are the activities which rise above nationalities, cultures and nations and truly bring about peace, tranquility, unity and harmony in nation and between nations”, the court observed.

Bombay High Court Fines University For Denying PhD Admission To Candidate Due To Unavailability Of Research Guide

Case Title: Nilesh s/o Ajinath Udmale, v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 490

The Bombay High Court imposed a fine of Rs. 50,000 on Dr. Babasaheb Ambedkar Marathwada University, Aurangabad to a PhD Entrance Test (PET) topper who was not assigned a research guide before expiry of his PET result and was denied admission as a consequence.

A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme sitting at Aurangabad deprecated the university for not verifying the number of vacancies with the research guide of Fine Arts subject before inviting PhD applications.

However, the court said that while allotment of the petitioner to a research guide from another subject in the category of inter-disciplinary studies is permissible, it cannot be done after the expiration of the result's validity. The court ultimately dismissed the petitioner's writ petition, citing the expiry of his result.

Judiciary's Role In Appointing Consumer Forum Members Can't Be Diluted: Bombay High Court Strikes Down Rule 6(1) Of Consumer Protection Rules 2020

Case Title: Dr. Mahendra Bhaskar Limaye v. Union of India

Citation: 2023 LiveLaw (Bom) 491

The Bombay High Court at Nagpur quashed Rule 6(1) of the Consumer Protection Rules, 2020 which prescribed two members from the State bureaucracy and only one member from the judiciary on the Selection Committee that recommends appointment of the President and member-judges to the State and District Consumer Commissions.

The division bench comprising Justices Atul Chandurkar and Vrushali Joshi observed the rule was “diluting the involvement of the judiciary” and the “lack of judicial dominance” was in “contravention of the doctrine of separation of powers and also an encroachment on the judicial domain.”

The court further quashed Rule 10(2) to the extent it prescribed only a four-year tenure for members instead of five and additionally found the advertisement issued by Maharashtra's Department of Consumer Affairs for recruitment to be without jurisdiction for one of the two written papers.

As Rule 6(1) was struck down, the court consequently set aside the notifications issued in June this year constituting the selection committees.

Sarpanch/Upa-Sarpanch Election Must Be Conducted Via Secret Ballot Instead Of Show Of Hands If Even One Panchayat Member Demands: Bombay High Court

Case Title: Aarti w/o Santosh Pawar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 492

The Bombay High Court held that the election of Sarpanch/Upa-Sarpanch must be conducted by secret ballot even if just one panchayat member present at the meeting requests election through secret ballot election instead of show of hands.

Justice Kishore C Sant of the Aurangabad Bench held that the method of conducting election cannot be decided by the majority opinion.

“It is, therefore, provided necessary that even if one person asks for secret ballot instead of voting by show of hands, it needs to be held in that way. Whether to hold election by secret ballot or show of hands cannot be let to the will of the majority. The Presiding Officer in this case decided to take voting by show of hands by recording that the majority of the voters demanded voting by show of hands and has committed the error”, the court held.

The court upheld orders setting aside the Upa Sarpanch election of a village conducted by show of hands despite a panchayat member’s request for a secret ballot.

Admission Fees Paid To Club Towards Corporate Membership Is 'Revenue' In Nature: Bombay High Court

Case Title: Swiss Re Services India Pvt. Ltd. v. Deputy Commissioner Of Income-Tax

Citation: 2023 LiveLaw (Bom) 493

The Bombay High Court held that the admission fees paid to a club towards corporate membership are wholly and exclusively for business purposes, and the same are revenue-generating in nature.

The bench of Justice K.R. Shriram and Justice Rajesh S. Patil also observed that the expenditure incurred towards entrance fees and annual membership would be a "revenue expenditure" because it has been incurred wholly and exclusively for business and not towards the capital account.

Such expenditure only facilitates the smooth and efficient running of the business enterprise and does not add to the profit-making apparatus of the business enterprise, the bench added.

The bench made this observation while dealing with a Writ petition filed by the petitioner/assessee (Swiss Re Services India Pvt. Ltd) which received a reassessment notice stating that there were reasons to believe that the petitioner’s income chargeable to tax had escaped assessment. The petitioner was directed to file a return of income, which the petitioner did. The petitioner was provided with reasons to believe there was an escape of income. The reasons to believe were the entrance and subscription fees to Willington Sports Club (WSC).

Bombay High Court Refuses To Enforce Producers Association Award Directing ALTT To Pay Rs 1.57 Crores To Makers Of 'Mentalhood' Web Series

Case Title: Film Farm India Pvt Ltd v. ALT Digital Media Entertainment Ltd.

Citation: 2023 LiveLaw (Bom) 494

The Bombay High Court refused to enforce an award of the Western India Film Producers’ Association (WIFPA) directing Balaji Telefilms' OTT unit ALTT to pay Rs. 1,57,00,000/- to makers of the web series “Mentalhood”.

Justice SM Modak held that the decision of the Disputes Settlement Committee of WIFPA cannot be enforced as an arbitral award in the absence of an arbitration agreement between parties of the dispute, if one of the parties is not a member of WIFPA.

Bhima Koregaon: Bombay High Court Permits Accused Poet Varavara Rao To Travel To Hyderabad For Cataract Surgery

Case Title: Dr. P. Varavara Rao v. National Investigation Agency and Anr.

Citation: 2023 LiveLaw (Bom) 495

The Bombay High Court granted octogenarian Telugu poet Varavara Rao permission to travel to Hyderabad for seven days to undergo cataract surgery in one of his eyes.

Justices AS Gadkari and Shyam Chandak further asked Rao to seek permission afresh from the trial court to undergo surgery for the other eye.

Rao had approached High Court in November 2022 against the Special NIA’s court order refusing permission.

The poet is facing allegations under the UAPA over alleged Maoist links. The Supreme Court on August 10 2022 had granted him permanent medical bail but constrained him to stay within the limits of the city of Greater Mumbai. The court however, granted him liberty to approach the concerned NIA court for permission to go to Hyderabad.

Bombay High Court Dismisses Nonagenarian's Plea To Remove Statue Of Bharat Ratna Awardee Maharshi Karve In Pune

Case Title: Indumati Borse v. Pune Municipal Corporation and Ors.

Citation: 2023 LiveLaw (Bom) 496

The Bombay High Court dismissed a writ petition by a 90-year-old woman seeking removal of a statue of Maharshi Dhondo Keshav Karve, a reformer and Bharat Ratna recipient, installed by the Pune Municipal Corporation (PMC) near her property.

A division bench of Justice GS Patel and Justice Kamal Khata stated that a memorial or a monument is sufficiently a public purpose, which need not only be a public utility, and the petitioner did not show that installation of statues by a public body is forbidden.

Redevelopment Near Signal Transmitting Station Juhu Allowed As Long As Redeveloped Structure Adheres To Limit Of 15.24 Meters Height: Bombay High Court

Case Title: Sameer Baijanath Joshi v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 497

The Bombay High Court held that redevelopment of an existing permanent structure near Signal Transmitting Station, Juhu, is allowed as long as the redeveloped structure adheres to the limit of 15.24 meters height specified in a 1976 notification issued under the Works of Defence Act, 1903 (WoD Act).

The signal transmitting station in Juhu is a pre-World War II military installation for wireless communication. Several redevelopment projects in Juhu have been halted due to the Army's objection to construction near it.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla paved way for redevelopment of Mumbai’s Chandan Cinema situated near the Signal Transmitting Station which was held up due to denial of no objection certificate (NOC) by the military authorities.

Bombay High Court Discharges Man Booked For Alleged Conspiracy To Illegally Transport Two Children To USA, Says Mere Cancellation Of Flight Tickets Not Suspicious Activity

Case Title: Zakir Yusuf Shaikh v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 498

Observing that mere cancellation of return flight tickets is not a suspicious activity, the Bombay High Court discharged a man accused of conspiring to illegally transport two children to USA on forged immigration documents.

Justice Bharati Dangre observed that allegations against the accused, one Zakir Yusuf Shaikh, do not show his knowledge of the conspiracy, and in the absence of sufficient material against him, the trial would be an empty formality.

The court quashed the order of the Sessions court refusing to discharge the accused from the case. The man was booked for allegedly buying or disposing of any person as a slave, cheating and forgery, under sections 370, 419, 420, 465, 468, and 471, read with section 120B of the IPC.

Custodian Of Enemy Property Cannot Halt Project On Land Not Vested In Him: Bombay High Court

Case Title: M/s. Neelkamal Realtors Suburban Pvt Ltd v. Office of the Custodian of Enemy Property of India

Citation: 2023 LiveLaw (Bom) 499

The Custodian of Enemy Properties doesn’t have the power to issue prohibitory orders against any land parcel suspected to be an ‘enemy property’ until the Custodian is vested with the property under the Enemy Properties Act, 1968 the Bombay High Court held.

Properties owned by Pakistani Nationals and acquired by the Indian government are known as ‘enemy properties.’

A division bench comprising Justices Sunil Shukre and Rajesh Patil quashed all communications issued by the Assistant Custodian of Enemy Property directing the Tehsildar and Collector to Mira- Bhayander Municipal Corporation, to issue stop work notices to a development project undertaken by Neelkamal Realtors.

IBC | Assistant General Manager Signs Inspection Order In Place Of Executive Director Of IBBI, Bombay High Court Stays The Suspension Of Insolvency Professional

Case Title: Partha Sarathy Sarkar v Insolvency & Bankruptcy Board of India & Ors.

Citation: 2023 LiveLaw (Bom) 500

The Bombay High Court bench, comprising Justice B. P. Colabawalla and Justice M.M. Sathaye, while adjudicating a petition filed in Partha Sarathy Sarkar v Insolvency & Bankruptcy Board of India (IBBI) & Ors., has stayed the Suspension Order issued against an Insolvency Professional (“IP”) by the Insolvency and Bankruptcy Board of India (“IBBI”). The Inspection Order issued by IBBI against the IP was signed by Assistant General Manager alone, whereas, as per IBBI (Delegation of Powers and Functions) Order, 2017, any action, inspection or investigation order has to be issued by the Executive Director of IBBI. As per the IBBI (Delegation of Powers and Functions) Order, 2017, any action, inspection or investigation order has to be issued by the Executive Director of IBBI. The Bench noted that prima facie the Inspection Order was signed by the Assistant General Manager in place of the Executive Director.

Bombay High Court Denies Medical Bail To HDIL Promoter Rakesh Wadhawan, Directs JJ Hospital To Send Physiotherapist And Nurse To Prison Hospital

Case Title: Rakesh Kumar Wadhawan v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 501

The Bombay High Court refused to grant bail on medical grounds to Housing Development Infrastructure Ltd (HDIL) promoter Rakesh Wadhawan who is booked in the multi crore Punjab and Maharashtra Co-operative (PMC) Bank loan fraud case and lodged in Arthur Road Central Prison, Mumbai.

Rakesh Wadhawan and his son Sarang face allegations of fraudulently obtaining loans of Rs 2,558 crore from PMC Bank and failing to repay the due amount of Rs. 4,435 crores including interest.

Justice Bharati Dangre observed that the recommendations from doctors did not indicate an urgent need for any specific medical procedure or surgery and that the prescribed course of treatment was primarily medication and management.

Landlord Can't Be Hauled In Endless Rounds Of Meritless Litigations: Bombay High Court Ends Nearly Four Decade Long Rent Dispute

Case Title: Appasaheb Pandurang Yadav (Deceased) Through his legal heir v. Appasaheb Virupaksh Tandale

Citation: 2023 LiveLaw (Bom) 502

After a legal battle spanning nearly four decades, the Bombay High Court brought an end to a dispute involving ten rounds of litigation between the owner of agricultural land and his tenants regarding payment of accumulated rent of Rs. Rs. 3,15,250.

Justice Sandeep V Marne refused to condone a delay of over one and a half years by the tenants in filing an appeal against the Tehsildar’s 2018 order, which directed them to pay rent accumulated since 1985 to the landlord within three months. The court, despite acknowledging that this length of delay is typically not considered inordinate, deemed it immaterial in the present case.

"The issue is whether the landlord can be hauled in endless rounds of meritless litigations… Public policy demands that a quietus needs to be given to litigation between the parties in the present case. This is a reason why this court went into merits of the contentions that Petitioners wish to argue before SDO," the court stated.

The court noted that ordinarily, while deciding the issue of condonation of delay, it would not have gone into the merits of the case. However, the court decided to verify whether any merit exists in the tenants’ appeal before the SDO and concluded that the tenants did not have an arguable case.

Restriction Introduced In 2015 Civil Aviation Rules On Construction Near Defence Aerodromes Not Applicable To Constructions Approved Under 2010 Civil Aviation Notification And Initiated Within 5 Years: Bombay High Court

Case Title: Nitin Dwarkadas Nyati v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 503

Observing that the No Objection Certificate (NOC) was granted for the construction and not the builder, the Bombay High Court directed the Indian Airforce authorities to reconsider a builder’s application for revalidation of NOC for construction of a building near the IAF Airfield in Pune.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla refuted the IAF authorities’ objection that the NOC was initially issued to another builder and, in absence of any provision of transfer in the NOC, the new builder needed to apply for a fresh NOC.

The court further held that the restrictions on constructions near the NDA Aerodrome introduced in the Ministry of Civil Aviation (Height Restrictions for Safeguarding of Aircraft Operations) Rules, 2015 would not be enforceable on constructions approved under a 2010 IAF Notification whose construction began within 5 years of the issuance of the NOC.

Tenant’s Premises Demolished While They Were “Illegally” Detained By Police: Bombay HC Orders CID Probe Against Officers, Says No Sanction Required

Case Title: Sanjay Nathmal Jain v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 504

The Bombay High Court directed the Maharashtra Crime Investigation Department to investigate five police officers under Section 156 (3) of the CrPC wherein tenants’ premises were demolished while they were allegedly illegally detained at the local police station and coerced into surrendering their tenancy.

Justice RM Joshi at the Aurangabad bench held the police’s acts were not in discharge of their duties and therefore no Sanction u/s 197 of the CrPC was required to prosecute them.

The High Court dismissed a clutch of petitions by the original landlord’s bother, purchasers of the property and the police officers challenging an order of a Sessions judge directing CID investigation and registration of FIR u/s 156(3) of the CrPC.

Bombay High Court Grants Bail In NDPS Case After Seized Charas Found 10 Grams Lighter At The Time Of Inventory

Case Title: Sunil Shishupal Nayak v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 505

The Bombay High Court granted bail to a man accused of possession of commercial quantity of ‘Charas’ under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) after the weight of Charas seized from him supposedly reduced in police custody.

The prosecution claimed that the weight of Charas at the time of seizure was 1 kg and 10 grams. However, when presented before the magistrate for inventory, it weighed 1 kg only.

The court held that since the contraband seized from Nayak weighed 1 kg at the time of inventory before the Magistrate, qualifying as an intermediate quantity, the strict conditions for bail under section 37 of the NDPS Act would not apply.

The court clarified that whether the weight at the time of seizure or the weight before the Magistrate during inventory has to be considered for determining guilt of the accused will be decided at the time of trial.

S.304(A) IPC - Bombay High Court Quashes Death By Negligence Case Against Shopkeeper After 4-Yr-Old Victim’s Family Consents

Case Title: Anandraj Manikam v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 506

The Bombay High Court quashed an FIR registered against a shopkeeper and his employee for allegedly causing a 4-year-old’s death by negligence (304A IPC) after the child’s family consented to the quashing on humanitarian grounds.

A division bench of Justices AS Gadkari and Sharmila Deshmukh granted relief to shopkeeper Anandraj Manikam on the condition he would deposit Rs. 25,000 with the Advocate’s Association of Western India Generation Next Fund.

It was the prosecutions case that on 16th May 2023 when the complainant’s 4-year-old daughter visited the shop for purchasing chips, she clinged to the glass counter which collapsed and fell on her. She passed away while undergoing treatment.

CrPC Doesn’t Envisage One Sided Investigation: Bombay High Court Directs Police To Consider WhatsApp Chats Submitted By Accused

Case Title: Nikhil Ashokrao Waghmare and Ors. v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 507

Observing that the investigating officer’s role is not just to strengthen the prosecution's case but to unearth the truth, the Bombay High Court held that the investigating agency cannot refuse to go through material submitted by the accused if it is relevant to the case.

A division bench of Justice Vinay Joshi and Justice MW Chandwani sitting at Nagpur judgment directed the police to consider certain printouts of WhatsApp chats submitted by the accused during its investigation in a cruelty and suicide abetment case.

“No doubt, the investigating officer shall be given complete and full freedom to carry the investigation in accordance with law. The material which is sought to be produced by the accused may or may not help the investigating agency, but, it is totally unacceptable that he shall not look into the same. We do not see any provision of law which precludes the investigating officer to go through the material if he finds it relevant and germane to arrive at the truth”, the court held.

State Mandating Project Affected Persons To Construct House On Alternate Land Within A Year Of Allotment "Draconian": Bombay High Court

Case Title: Manik Chandru Deokar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 508

The Bombay High Court held that project affected persons are allotted alternate land on humanitarian grounds and the State cannot impose any condition on the allotment that may lead to loss of the land. The court said that such a condition would violate Article 14 of the Constitution.

“The object and purpose in rehabilitating a person like the Petitioner by allotting him the alternate land in lieu of his land being acquired for a public project is purely on special and humanitarian considerations and not merely to compensate him as in a normal case of land acquisition…This would certainly not contemplate imposing of a condition which would take away the benefits of such rehabilitation, and in fact would subject such person to a coercive taking away of the alternate land allotted to him”, the court held.

A division bench of Justice GS Kulkarni and Justice Jitendra Jain set aside an order cancelling the allotment of alternate land to a 78-year-old project affected person on the ground that he did not fulfil the condition of constructing a house on the land within a year of the allotment.