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Bombay High Court Weekly Round-Up: September 26 To October 2, 2022

Amisha Shrivastava
3 Oct 2022 4:15 AM GMT
Bombay High Court Weekly Round-Up: September 26 To October 2, 2022
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Nominal Index 1. Suresh @ Pintya Kashinath Kamble v. State of Maharashtra 2022 LiveLaw (Bom) 352 2. Anuja Arun Redij v. State of Maharashtra 2022 LiveLaw (Bom) 353 3. M/s. Magnum Opus IT Consulting Private Limited versus M/s. Artcad Systems 2022 LiveLaw (Bom) 354 4. Lata v. State of Maharashtra and Anr. 2022 LiveLaw (Bom) 355 5. Ajaz Mohammad Shaf Khan...

Nominal Index

1. Suresh @ Pintya Kashinath Kamble v. State of Maharashtra 2022 LiveLaw (Bom) 352

2. Anuja Arun Redij v. State of Maharashtra 2022 LiveLaw (Bom) 353

3. M/s. Magnum Opus IT Consulting Private Limited versus M/s. Artcad Systems 2022 LiveLaw (Bom) 354

4. Lata v. State of Maharashtra and Anr. 2022 LiveLaw (Bom) 355

5. Ajaz Mohammad Shaf Khan v. Union of India & Anr. 2022 LiveLaw (Bom) 356

6. Aruna Mohanbabu Jaiswal and Anr. v. The Collector, State Excise Department, Amravati 2022 LiveLaw (Bom) 357

7. Rabia Khan v. Union of India and Ors. 2022 LiveLaw (Bom) 358

8. Ramani Suchit Malushte v. Union of India and Ors. 2022 LiveLaw (Bom) 359

9. Chetan Vyas v. Union of India & Anr. 2022 LiveLaw (Bom) 360

10. Pawan Shamsundar Sarda and Ors. v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 361

11. All India Service Engineers Association v. Union of India & Ors. 2022 LiveLaw (Bom) 362

12. High Court of Judicature at Bombay v. Mathews J Nedumpara, Advocate 2022 LiveLaw (Bom) 363

13. Secretary to the Government of India, Ministry of Shipping, Road Transport and Highways & Anr. v. The Additional Commissioner, Nagpur & Ors. 2022 LiveLaw (Bom) 364

14. Faiyyaz Mullaji v. Secretary, Urban Development Department and Ors. 2022 LiveLaw (Bom) 365

15. Shree Atma Kamal Labdhisurishwarji Jain Gyanrnandir Trust and Ors. v. Union and Ors. 2022 LiveLaw (Bom) 366

16. Rashmi Taylor v. State of Maharashtra & Ors. 2022 LiveLaw (Bom) 367

17. Shailesh Shah, Legal Heir of Late Shri Ramniklal Harilal Shah v. The Income Tax Officer 2022 LiveLaw (Bom) 368

18. M/s. Pernod Ricard India Pvt Ltd v. Food Safety and Standards Authority of India 2022 LiveLaw (Bom) 369

Reports/Judgments

1. Half of Life Imprisonment Is 10 Years for POCSO Offences: Bombay High Court

Case Title: Suresh @ Pintya Kashinath Kamble v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 352

The Bombay High Court sentenced a convict to one half of life imprisonment under the POCSO Act, who will have to undergo a sentence of 10-years.

Justice Sarang Kotwal held that since life imprisonment was not defined under the POCSO Act, the definition of life imprisonment under section 57 of the Indian Penal Code would apply.

The section provides that for calculating a fraction or part of an entire sentence, life imprisonment would be equivalent to imprisonment for twenty years.

"Thus, half of life imprisonment in such cases would mean imprisonment for ten years," Justice Kotwal observed while disposing off the petition.

2. State's Obligation To Protect Citizens From Wild Animal Attacks, Any Injury Caused Is Govt's Failure: Bombay High Court

Case Title: Anuja Arun Redij v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 353

Stating that while it is the duty of the State government to protect wild animals and not allow them wander outside the restricted zone, the Bombay High Court Monday said it is also obligatory upon the state to protect the citizens from any injuries by the wild animals.

A division bench of Justice G. S. Patel and Justice Gauri Godse ruled that it is a twin obligation of the State Government to protect wild animals and the citizens from any injuries by the wild animals. "If any wild animal causes injury to any person, this in fact is a failure of the State Government to protect right to life guaranteed under Article 21 of the Constitution of India", the court held.

3. Reference Made Under MSMED Act; District Court Has Power To Extend Mandate Or Substitute Arbitrator Under Section 29A Of A&C Act: Bombay High Court

Case title: M/s. Magnum Opus IT Consulting Private Limited versus M/s. Artcad Systems

Citation: 2022 LiveLaw (Bom) 354

The Bombay High Court has ruled that the provisions of Section 29A of the Arbitration & Conciliation Act, 1996 (A&C Act), which enables the Court to extend the mandate of the Arbitrator or substitute the Arbitrator, would be applicable to the reference made under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act).

The Single Bench of Justice Anuja Prabhudessai held that since there is no provision under the MSMED Act to extend the mandate of the arbitrator or substitute the arbitrator, hence, if the provisions of Section 29A of the A&C Act are made inapplicable to the reference made under the MSMED Act, it would render the arbitral scheme under the MSMED Act otiose.

4. Daughter Making Monetary Demand From Father Not Meant To Abet His Suicide: Bombay High Court Quashes FIR

Case title: Lata v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 355

The Nagpur bench of the Bombay High Court has quashed an FIR registered against a woman accused of abetting her father's suicide, observing that it is unlikely that she demanded money from him with the purpose of driving him to commit suicide.

Justice Manish Pitale and Justice G. A. Sanap allowed a writ petition for quashing of FIR and observed that it would be 'stretching things a bit far' to conclude that the accused, through her mother, intentionally drove her father to commit suicide.

5. Actor Ajaz Khan Prima Facie Connected To Subsequent Recoveries: Bombay HC Refuses Bail Despite Possession of Small Quantity Contraband

Case Title: Ajaz Mohammad Shaf Khan v. Union of India & Anr.

Citation: 2022 LiveLaw (Bom) 356

The Bombay High Court rejected bail plea of Bollywood actor Ajaz Khan in an alleged financing of illicit drug trade case despite recovery of small quantity of contraband from him, on the ground that his role in the conspiracy was revealed by statements of witnesses and co-accused.

Justice Bharti Dangre said that he is connected to recovery of commercial quantity from the co-accused.

6. Liquor License Can't Be Suspended Citing Family Dispute Between Legal Heirs After Death Of License Holder In Partnership: Bombay HC

Case Title: Aruna Mohanbabu Jaiswal and Anr. v. The Collector, State Excise Department, Amravati.

Citation: 2022 LiveLaw (Bom) 357

A dispute between legal heirs cannot be a ground to suspend the liquor license held in the name of a deceased partner of a firm under the Maharashtra Prohibition Act 1949 and rules thereunder, the Bombay High Court's Nagpur bench held while quashing the order passed by Collector of State Excise.

Justice Manish Pitale relied on two circulars which stated that licenses should be temporarily renewed subject to the outcome of the dispute, if a valid application is made by even one of the disputing partners with proper compliance.

7. Bombay HC Dismisses Plea By Jiah Khan's Mother Seeking Fresh Investigation Into Actress' Death

Case Title: Rabia Khan v. Union of India and Ors.

Citation: 2022 LiveLaw (Bom) 358

The Bombay High Court dismissed Rabia Khan's petition seeking fresh investigation into her daughter and Bollywood actress Jiah Khan's suicide by the stating that CBI has carried out a 'fair, impartial, and transparent' probe into the case in a 'thorough' manner.

The court said that Rabia Khan is trying to delay the trial by repeatedly filing petitions having identical grounds and prayers. The court strongly deprecated the repeated filing of proceedings by the petitioner for the same cause of action.

8. Limitation Period Starts After Affixing Signatures On GST Registration Cancellation Order: Bombay High Court

Case Title: Ramani Suchit Malushte v. Union of India and Ors.

Citation: 2022 LiveLaw (Bom) 359

The Bombay High Court has held that the limitation period would start only after the affixing of signatures on the GST registration cancellation order.

"Only on the date on which the signature of Respondent issuing authority was put on the order dated November 14, 2019, for the purpose of attestation, would time to file an appeal commence," the division bench of Justice K.R. Shriram and Justice A.S. Doctor said.

The court observed that unless a digital signature is put by the issuing authority, the order will have no effect in the eyes of the law.

9. 'Demolished Without Hearing Fisherfolk' - Bombay High Court Directs Mumbai Suburban Collector To Reconstruct Crematorium

Case Title: Chetan Vyas v. Union of India & Anr.

Citation: 2022 LiveLaw (Bom) 360

The Bombay High Court has directed the District Collector Mumbai Suburban to reconstruct a decades-old crematorium on Erangal Beach in Mumbai which was earlier demolished for alleged Coastal Regulation Zone (CRZ) violations without hearing the local fisherfolk who built it.

A division bench of Chief Justice Dipankar Datta and Justice Madhav Jamdar noted that the crematorium was in existence even before the CRZ notification of February 18, 1991 and therefore quashed Maharashtra Coastal Zone Management Authority (MCZMA)'s order declaring it illegal.

10. Dandiya And Garba Can Be Performed Without Loudspeakers And DJ Sound, Celebrate Navratri In Traditional Way: Bombay High Court To RWA

Case Title: Pawan Shamsundar Sarda and Ors. v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 361

Granting permission to Ramdaspeth Plot Owners and Residents Association to organize its Navratri festival including dandiya and garba performances in a silence zone, the Nagpur bench of Bombay High Court said the religious celebration can still be performed in a purely traditional and religious way.

"Dandiya and Garba performances being intrinsic part of a religious celebration can still be performed in purely traditional and religious way, which do not contemplate use of modern gadgets like, music system, loudspeakers, DJ sound and the like", the court said.

A division bench of Justice Sunil Shukre and Justice Govind Sanap passed the order in a writ petition objecting to the organization of Navratra Festival wherein the petitioners are apprehending playing of loud music on DJ causing loud noise harmful to humans.

11. Air India Employees' Accommodation: Bombay HC Directs Centre To Take 'Fresh Decision' On Reference Of Dispute To Industrial Tribunal

Case Title: All India Service Engineers Association v. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 362

The Bombay High Court held that if the Government declines reference of a dispute to the Industrial Disputes Tribunal, it must do so based on a final, and not prima facie satisfaction that no industrial dispute arises in the case.

The court held that the decision of the Central Government not to refer a dispute between Air India employees and Air India Ltd. regarding vacation of their allotted residences to the Tribunal was patently illegal and without application of mind as it not recorded r.

The court noted that the government held the demands of the joint committee to be 'extraneous' and declined to refer the dispute to the tribunal without giving the reasoning behind this conclusion.

12. Bombay HC Full Bench Accepts Apology From Adv Mathews Nedumpara, Discharges Contempt Notice

Case Title: High Court of Judicature at Bombay v. Mathews J Nedumpara, Advocate

Citation: 2022 LiveLaw (Bom) 363

The Bombay High Court discharged a 2017 contempt notice against Advocate Mathews Nedumpara after accepting his "bona fide, unconditional and unqualified" apology.

"We do so because it is within our power and remit to accept an apology in these terms, and also because we believe that the contempt powers of this Court must be exercised sparingly. Where there is an apology that meets the requirements of the statute itself, and is to the satisfaction of the Court, surely no further action is required," a full bench of Justices Gautam Patel, MS Karnik and Bharati Dangre observed.

13. Reliance On Evidence Filed After Conclusion Of Hearing; Award Is Patently Illegal: Bombay High Court

Case Title: Secretary to the Government of India, Ministry of Shipping, Road Transport and Highways & Anr. v. The Additional Commissioner, Nagpur & Ors.

Citation: 2022 LiveLaw (Bom) 364

The Bombay High Court ruled that where the only documentary material relied upon by the claimant in the arbitral proceedings, is introduced on record surreptitiously and after the conclusion of hearing, the arbitral award is vitiated on account of patent illegality.

The Single Bench of Justice Rohit B. Deo held that the power of the court under Section 34 (4) of the Arbitration and Conciliation Act, 1996 (A&C Act) to remand the matter back to the arbitrator is discretionary, which must be exercised judiciously and only in appropriate cases. The Court added that where the integrity of the arbitral proceedings was compromised, and crucial evidence was introduced on record after conclusion of hearing, it was not an appropriate case to exercise discretion under Section 34 (4).

14. Bombay High Court Orders Demolition Of Illegal Portions Of Former BJP MLA Narendra Mehta's Hotel

Case Title: Faiyyaz Mullaji v. Secretary, Urban Development Department and Ors.

Citation: 2022 LiveLaw (Bom) 365

The Bombay High Court ordered demolition of substantial portions of former BJP MLA Narendra Mehta's Seven Eleven Hotel in Mira Road.

The division bench of Chief Justice Dipankar Datta and Justice MS Karnik allowed the PIL filed by one Faiyyaz Mullahji and directed all construction beyond 0.2 FSI to be demolished by Mehta within two months.

15. 'Why Are You Encroaching On Others' Rights': Bombay High Court on PIL Seeking Ban on Advertising Non-Veg Food

Case Title: Shree Atma Kamal Labdhisurishwarji Jain Gyanrnandir Trust and Ors. v. Union and Ors.

Citation: 2022 LiveLaw (Bom) 366

The Bombay High Court questioned the Jain religious bodies, who were seeking a ban on advertising of non-vegetarian food items, as to why they were encroaching on someone else's right by making the demand.

"There is no law that provides this. You are asking us to frame law. And what about violation of Article 19 of the Constitution? Why are you encroaching on other's rights?," Chief Justice Dipankar Datta observed and granted the three trusts liberty to withdraw the petition and come with "better particulars and appropriate prayers."

16. 'Directions May Be Passed On Administrative Side': Bombay High Court On PIL For Timely Recording Of POCSO Victim's Testimony

Case Title: Rashmi Taylor v. State of Maharashtra & Ors.

Citation: 2022 LiveLaw (Bom) 367

The Bombay High Court directed a public interest litigant seeking proper enforcement of POCSO Act, to approach the High Court Committee on POCSO matters, with his suggestions.

The petition sought directions to the Special Courts to ensure that the testimony of the minor victim is recorded within one month, as per Section 35(1) of the POCSO Act. The ad-hoc committee overseeing POCSO matters comprises of Justice Revati Mohite Dere, Justice A. S. Gadkari and Justice Bharati Dangre.

The petition challenged non-compliance of Section 35 of the POCSO Act read with section 309 of CrPC and the directions of Supreme Court in Alakh Alok Shrivastava v. Union of India. The PIL also sought a direction to all Special POCSO Courts for a time bound conclusion of cases.

17. Reassessment Notice Issued Against A Dead Person Would Be Invalid: Bombay High Court

Case Title: Shailesh Shah, Legal Heir of Late Shri Ramniklal Harilal Shah Versus The Income Tax Officer

Citation: 2022 LiveLaw (Bom) 368

The Bombay High Court held that a reassessment notice against a dead person would be invalid unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection.

The division bench of Justice Dhiraj Singh Thakur and Justice Valmiki Sa Menezes observed that where the legal representatives do not waive their right to a notice under Section 148 of the Income Tax Act, it cannot be said that the notice issued against the dead person is in conformity with the intent and purpose of the Income Tax Act.

18. 'Lab Lacked Accreditation To Analyse Whiskey Samples': Bombay High Court Quashes FSSA Proceedings Against Alcohol Manufacturer

Case Title: M/s. Pernod Ricard India Pvt Ltd v. Food Safety and Standards Authority of India

Citation: 2022 LiveLaw (Bom) 369

The Bombay High Court quashed the proceedings initiated by the Food and Drugs Administration against the alcohol manufacturer Pernod Ricard in 2021 for alleged violation of the regulation on declared level of ethyl alcohol content in the whisky.

The court observed that the lab that analysed the sample was not accredited for testing whisky. The court stated that the tests must be carried within the valid scope of recognition of the Food and Drugs Administration Laboratory that had tested the samples.

Other Developments

1. Bombay HC Stays IT Dept's Prosecution Notice To Anil Ambani Over Alleged Secret Funds In Swiss Bank Accounts

The Bombay High Court granted interim relief to Reliance ADA Group chairman Anil Ambani and restrained the Income Tax Department from acting on a prosecution notice issued to him for alleged non-disclosure of money in two Swiss Bank Accounts amounting to approximately Rs. 814 crores.

A division bench of Justices SV Gangapurwala and RN Laddha noted that petitions regarding the retrospective applicability of the Act were pending before various High Courts, including the Bombay High Court.

2. 'Why Are You Encroaching On Others' Rights': Bombay High Court on PIL Seeking Ban on Advertising Non-Veg Food

The Bombay High Court questioned the Jain religious bodies, who were seeking a ban on advertising of non-vegetarian food items, as to why they were encroaching on someone else's right by making the demand.

"There is no law that provides this. You are asking us to frame law. And what about violation of Article 19 of the Constitution? Why are you encroaching on other's rights?," Chief Justice Dipankar Datta observed and granted the three trusts liberty to withdraw the petition and come with "better particulars and appropriate prayers."

3. Sikh Couple Approaches Bombay High Court For Implementation of Anand Marriage Act in Maharashtra

A Sikh lawyer-couple, who married last year, approached the Bombay High Court seeking directions for implementation of Anand Marriage Act in the state.

Their plea seeks formulation of rules under the Anand Marriage Act 1909 and registration of their marriage under the law.

The Act was enacted in 1909 to give legality and sanctity to the marriage ceremony among Sikhs known as Anand Karaj. In 2012, it was amended by incorporating Section 6, which required each state to formulate their own rules. Ten years since, the State of Maharashtra is yet to formulate rules on the same, the petition states.

4. Lack Of Specialist Doctors Affecting Tribal Women & Children: Bombay High Court On '62% Medico Vacancies' In Govt Hospitals

The Bombay High Court was recently informed that 62% of the Group A posts of MBBS and BAMS doctors in Maharashtra Medical and Health Services are lying vacant. Out of 1786 posts, 1112 are vacant.

A division bench of Chief Justice Dipankar Datta and Justice M. S. Karnik took note of this in a Public Interest Litigation regarding deaths of women and children due to lack of proper medical care in the tribal belt of Maharashtra.

74% of Maharashtra General State Service Group B (BAMS Doctors) posts are vacant, the court was told. For Group C (Staff nurses, paramedical staff etc.) and Group D (peons, janitors etc), there are an unusually high 30% of vacant posts. For Group C, 22234 posts have been filled while 9351 posts are vacant, the court was told.

5. Justice Ravindra Ghuge Recuses From Hearing Plea Accusing Sitting Bombay HC Judge of Involvement In A Tender Process

Justice Ravindra Ghuge heading a division bench at Aurangabad recused from hearing a contractor's plea against the rejection of his technical bid to construct a ground plus 10 storey structure for High Court judges at Sneha Nagar, Aurangabad.

The petition filed by Tajuddin Pathan of Baba Construction, through Advocates Gunratan Sadavarte and Jaishri Patil, alleges malafide against an MLA and a sitting HC judge, however, neither of them have been impleaded as respondents.

6. After Bombay HC Nudge, Dr. Ambedkar's MSc Thesis To Be Published

The Maharashtra government informed the Bombay High Court that it will publish Dr. B. R. Ambedkar's M. Sc. thesis.

A division bench of Justices Prasanna Varale and Kishore Sant was hearing a suo moto PIL taking cognizance of government's earlier decision to halt a project for preservation and publication of Ambedkar's works.

The state informed the court that the UK Senate library has granted permission to the state to publish his thesis titled 'Decentralisation of Provincial Imperial Finance in British India'.

7. BMC Be Made Single Planning Authority For Mumbai, 20 Worst Roads To Be Repaired In Next 3 Months: Municipal Commissioner To Bombay High Court

The BMC Commissioner Iqbal Chahal suggested that the roads and bridges in Greater Mumbai owned by authorities such as MMRDA, MSRDC, PWD, MIDC, Railways and Port Trust should be handed over to the urban local body for regular maintenance.

The submission was made before the Bombay High Court during the hearing of a case related to bad condition of roads in the state. Chahal told the court that concretization of roads is the way to move forward as the same has a 30-years pothole-free guarantee.

8. 'Deceptively Similar Design': Bombay High Court Halts Sale of Polycab Wizzy After Atomberg Alleges Infringement

The Bombay High Court restrained a leading electrical appliance manufacturer Polycab India Ltd. from marketing its fan in an ex parte order stating that prima facie it has identical design as that of 'Atomberg Renesa Ceiling Fan'.

Justice R. I. Chagla granted temporary injunction in favour of the Mumbai based fan manufacturer Atomberg Technologies Pvt. Ltd. in a commercial IPR suit stating that Polycab has reproduced the overall design, shape, configuration, and get-up of Atomberg's Renesa Ceiling Fan.


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