Bombay High Court Monthly Digest: December 2023
Amisha Shrivastava
1 Jan 2024 12:00 PM GMT
Nominal Index [Citation 553 - 619]The Hongkong and Shanghai Banking Corporation v. UoI 2023 LiveLaw (Bom) 553Shonali Kedar Dighe v. Ashita Tham and Ors. 2023 LiveLaw (Bom) 554Anuradha Kapoor and Ors. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 555Patanjali Foods Ltd. v. SE Oil Products Pvt Ltd. & Anr 2023 LiveLaw (Bom) 556High Court On Its Own Motion v. State of Maharashtra...
Nominal Index [Citation 553 - 619]
The Hongkong and Shanghai Banking Corporation v. UoI 2023 LiveLaw (Bom) 553
Shonali Kedar Dighe v. Ashita Tham and Ors. 2023 LiveLaw (Bom) 554
Anuradha Kapoor and Ors. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 555
Patanjali Foods Ltd. v. SE Oil Products Pvt Ltd. & Anr 2023 LiveLaw (Bom) 556
High Court On Its Own Motion v. State of Maharashtra 2023 LiveLaw (Bom) 557
Ashok Dayabhai Shah And Ors. v. Securities And Exchange Board of India And Ors. 2023 LiveLaw (Bom) 558
Tribhuvansing Raghunath Yadav v. State of Maharashtra 2023 LiveLaw (Bom) 559
Shantapa alias Shantesh S. Kalasgond v. M/s. Anna 2023 LiveLaw (Bom) 560
Madgavkar Salvage v. Bergen Offshore Logistics Pvt Ltd. 2023 LiveLaw (Bom) 561
Mataji Educational Institution and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 562
Sunil Achyutrao Thete v. State of Maharashtra 2023 LiveLaw (Bom) 563
Peoples Education Society Thane v. Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 564
Harish B. Bhoite v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 565
Ashok Bhikanrao Deshmukh v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 566
Aarti Shailesh Shah v. Satish Vasant Dharukkar & Anr. 2023 LiveLaw (Bom) 567
Serum Institute of India Private Limited v. Union of India 2023 LiveLaw (Bom) 568
Sadanand Gangaram Kadam v. Directorate of Enforcement and Anr. 2023 LiveLaw (Bom)
TV Patel Pvt. Ltd. v. Dy. Commissioner of Income Tax 2023 LiveLaw (Bom) 570
ABC v. XYZ 2023 LiveLaw (Bom) 571
Mustansir Barma v. Executive Engineer A ward & Ors. 2023 LiveLaw (Bom) 572
Nikhil H Malkan v. Standard Chartered Investment and Loans (India) Ltd. 2023 LiveLaw (Bom) 573
M/s. Siddhivinayak Enterprises v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 574
Manisha G. Shah v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 575
Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr. 2023 LiveLaw (Bom) 576
Dadaso Balaso Awad and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 577
Nita Narendra Nadgouda v. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors. 2023 LiveLaw (Bom) 578
High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 579
High Court of Judicature at Bombay on its own Motion v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 580
Nutan Warehousing Company Pvt. Ltd. v. The Commissioner 2023 LiveLaw (Bom) 581
Shaila Madhukar Gore and Ors. v. Union of India and Ors. 2023 LiveLaw (Bom) 582
Ajay Mahasukhlal Shah v. Chandrakant Babulal Shah and Ors. 2023 LiveLaw (Bom) 583
Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu 2023 LiveLaw (Bom) 584
Sughosh Joshi v. ECI and Anr. 2023 LiveLaw (Bom) 585
Special Director, Directorate of Enforcement v. Jaipur IPL Cricket Pvt. Ltd. 2023 LiveLaw (Bom) 586
National Insurance Co. Ltd. v. Lauretta Shashi Mogale and Ors. 2023 LiveLaw (Bom) 587
Tribhuvansingh Raghunath Yadav v. State of Maharashtra 2023 LiveLaw (Bom) 588
Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad 2023 LiveLaw (Bom) 589
Maharashtra Eastern Grid Power Transmission Company Ltd. v. Collector of Buldhana and Ors. 2023 LiveLaw (Bom) 590
Star Engineers (I) Pvt. Ltd. v. Union of India 2023 LiveLaw (Bom) 591
Shreem Electric Limited v. Transformers and Rectifers India Ltd. and Ors. 2023 LiveLaw (Bom) 592
Bank of India v. M/s. Maruti Civil Works 2023 LiveLaw (Bom) 593
Manya Vejju v. Sapna Bhog 2023 LiveLaw (Bom) 594
HDFC ERGO General Insurance Company Ltd. v. Nayajoddin Nijamuddin and Ors. 2023 LiveLaw (Bom) 595
Dr. Sublendu Prakash Diwakar v. State of Maharashtra 2023 LiveLaw (Bom) 596
Gautam P Navlakha v. National Investigating Agency 2023 LiveLaw (Bom) 597
Atos India Private Limited v. State of Maharashtra 2023 LiveLaw (Bom) 598
Isha Exim v. UoI 2023 LiveLaw (Bom) 599
Jahid alias Javed Liyakat Ansari v. State of Maharashtra 2023 LiveLaw (Bom) 600
Aniket s/o Shahadev Labade v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 601
Parvej Khan v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 602
Leyla Mohmoodi v. Additional Commissioner of Customs 2023 LiveLaw (Bom) 603
Akshay Ashok Chaudhari and Ors. v. Government of Maharashtra and Ors. 2023 LiveLaw (Bom) 604
Harjinder Kaur v. The Foreigner Regional Registration Office & Anr. 2023 LiveLaw (Bom) 605
Phonographic Performance Ltd. v. Kaamakazi Solution Pvt. Ltd. & Ors. 2023 LiveLaw (Bom) 606
Gemini Developers v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 607
Arti Rajesh Karangutkar v. Anna Rocky Fernandes and Anr. 2023 LiveLaw (Bom) 608
Chintan Vidyasagar Upadhyay v. State of Maharashtra 2023 LiveLaw (Bom) 609
Tata Motors Finance Solutions Ltd v. Naushad Khan 2023 LiveLaw (Bom) 610
Amar Sadhuram Mulchandani v. Directorate Of Enforcement 2023 LiveLaw (Bom) 611
Rajinder Kaur Jaspal Singh Layal v. Union of India 2023 LiveLaw (Bom) 612
Marico Limited v. KLF Nirmal Industries Pvt. Ltd. 2023 LiveLaw (Bom) 613
Tohid Rehman Shaikh v. State of Maharashtra 2023 LiveLaw (Bom) 614
Nitin Shivdas Satpute v. State of Maharashtra 2023 LiveLaw (Bom) 615
Shailesh Ranka and Ors v. Windsor Machines Ltd. 2023 LiveLaw (Bom) 616
K Raj & Company & Anr v. State of Maharashtra & Ors 2023 LiveLaw (Bom) 617
Deepak Sitaram Modhe v. State of Maharashtra 2023 LiveLaw (Bom) 618
Sitara Anil Sharma v. Apex Grievance Redressal Committee, Slum Rehabilitation Authority, Bandra, Mumbai & Ors. 2023 LiveLaw (Bom) 619
Reports/Judgments
Bombay High Court Orders Dept. To Refund Tax Deposited By HSBC Under Protest
Case Title: The Hongkong and Shanghai Banking Corporation v. UoI
Citation: 2023 LiveLaw (Bom) 553
The Bombay High Court ordered the department to refund the tax deposited by HSBC under protest.
The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that once the amounts were deposited by the petitioner and retained by the department without the authority of law, the claim of the petitioner for refund could not have been denied. It was appropriate for the petitioner to invoke the jurisdiction under Article 226 of the Constitution, praying for a writ for the refund of money illegally retained or withheld.
The petitioner/assessee challenged the actions of the department/respondents in retaining the amount of Rs. 56,19,84,075, which was contended by the petitioner to be without any authority in law and that no tax is leviable or payable by the petitioner.
Bombay High Court Dismisses 20-Year-Old Testamentary Suit In Favor Of Actress Pooja Bedi, Her Aunts
Case Title: Shonali Kedar Dighe v. Ashita Tham and Ors.
Citation: 2023 LiveLaw (Bom) 554
The Bombay High Court dismissed a 20-year-old testamentary suit regarding the estate of actor Pooja Bedi's uncle -Bipin Gupta - after Bedi and her aunts proved that the impugned 'Will,' bequeathing everything to a trust, was a “sham and bogus.”
Justice Milind Jadhav dismissed a petition filed by Vasant Sardal seeking to execute Gupta's alleged Will dated September 4, 2003. Sardal was one of the two executors of the Will and a co- trustee of the organisation that stood to gain from the Will.
However, the property will now be distributed amongst Gupta's legal heirs: his two sisters, Ashita Tham and Monica Uberoi & to his niece, Bedi, on behalf of her mother.
The estate includes tenancy rights in a flat in Firdaus Building, an Art Deco structure, a flat in the Neel Tarang building in Mahim, a two-acre plot in Panchgani, bank balances, investments in shares and bonds, and valuables in his possession.
Court held that the testator's treating doctor neither made an attesting witness nor did he testify to the soundness of the testator. It was an obscure bequest to a Charity controlled by complete strangers, the Court observed, Court was of the view that the Will appeared disjunctive as, despite half of page 2 being blank, the Will was only executed on page 3.
Lastly, the court said it was unnatural for Gupta to have excluded his sisters from the will.
Accordingly, the HC directed the police to transfer all movable assets to Bedi and her aunts after taking necessary undertakings from them.
Case Title: Anuradha Kapoor and Ors. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 555
The Bombay High Court held that a court can compound the offence in check bounce cases without the complainant's consent provided that the accused applied for compounding in the initial stages of the case and the complainant was adequately compensated.
Justice Anil Pansare of the Nagpur bench quashed a cheque bounce case against six out of twelve accused subject to the accused depositing the cheque amount along with interest and litigation costs as compensation to the complainant.
“when the application for compounding offences u/s 138 of the NI Act is made at the initial stage of the case and if the complainant is duly compensated, the trial Court will be fully justified in compounding the offence without consent of the complainant”, the court held.
Case Title: Patanjali Foods Ltd. v. SE Oil Products Pvt Ltd. & Anr
Citation: 2023 LiveLaw (Bom) 556
The Bombay High Court appointed a court receiver and directed immediate seizure of the refined soya bean oil produced by SE Oil Products Pvt Ltd as its trademark was 'deceptively similar' to the trademark of Patanjali Food Ltd.
In an ex-parte ad-interim order, Justice RI Chagla observed that prima facie, SE's trademark was identical to Patanjali's registered trademark “TULSI” and non-registered trademark “TULSI GOLD”.
The order was passed in an intellectual property rights suit by Patanjali. The court had said that the order would be uploaded only after the Additional Special Receiver completed the surprise seizures.
“I am of the opinion that the similarity between the rival trademarks is not a matter of coincidence. Defendant's impugned mark is identical with and/or deceptively similar to the Plaintiff's registered Trademark “TULSI” and Trademark “TULSI GOLD,” the court observed.
Case Title: High Court On Its Own Motion v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 557
A division bench of Justices Gautam S Patel and Kamal Khata of the Bombay High Court held that an electricity bill or connection on a certain address is not proof of ownership or legality of construction.
An electricity distribution licensee cannot possibly assess questions of title of the property and check if the apartment or units have the necessary planning permissions, the court said.
“An electricity connection application and a bill cannot be used to prove ownership because that is not even the demand of the distribution licensee... It is impossible to expect a distribution licensee to act beyond the remit of the statute to assess questions of title to the property in question let alone assess questions of whether the structure or structures or apartments or units do or do not have the requisite planning permissions.
Case Title: Ashok Dayabhai Shah And Ors. v. Securities And Exchange Board of India And Ors.
Citation: 2023 LiveLaw (Bom) 558
The Bombay High Court pulled up the Securities and Exchange Board of India (SEBI) for not complying with the Court's order directing it to furnish documents concerning proceedings initiated against Bharat Nidhi Ltd (BNL), a company owned by Times Group MD Vineet Jain.
A division bench of Justice GS Kulkarni and Justice Jitendra Jain, while directing SEBI to comply with the concerned order dated October 23, 2023 and furnish the requested documents to the complainants, observed that SEBI's conduct is damaging to the confidence of investors.
“There has been persistent non-compliance of such orders passed by the Court, despite the Special Leave Petition of the SEBI being rejected, is too far to be imagined nay totally unacceptable. SEBI is a public body, it is required to act in public interest, it needs to comply with the orders passed by this Court...Such approach of the SEBI, in our opinion, would cause a dent to the confidence, the investors would repose in the SEBI, which needs to function solely to further the object and purpose, for which it is created by the Act of the Parliament”, the court observed.
The observation was made by the court while dealing with a writ petition filed by minority shareholders of BNL seeking documents related to an investigation on their complaint.
Case Title: Tribhuvansing Raghunath Yadav v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 559
The Bombay High Court observed that the physical production of undertrial prisoners to the court can be 'cumbersome', and that their production could be ensured using a Video Conferencing (VC) facility with dedicated links for prison authorities and time schedules communicated in advance.
“At various stages it may not be necessary to produce the accused, as production of the accused physically in Court is a cumbersome procedure, which consumes time, money and resources…If the dedicated links are allotted to the prison authorities, and time slots are scheduled by the respective Courts, which are also intimated in advance, production of the accused persons can be a simple procedure instead of carrying the prisoners physically to the Court”, the court observed.
Justice Bharati Dangre called for the expansion of VC facilities in courts and prisons to ensure that undertrial prisoners are produced either physically or virtually.
Case Title: Shantapa alias Shantesh S. Kalasgond v. M/s. Anna
Citation: 2023 LiveLaw (Bom) 560
The Bombay High Court declined to temporarily restrain a Pune restaurant from using the trademark 'ANNA' in an infringement suit, upon finding that during the registration stage, the plaintiff had told the Trademarks Registry that there was no similarity between his mark 'ANNA IDLI GRUHA' and the defendant's mark 'ANNA.
In dismissing the plaintiff's plea for a temporary injunction restraining the defendant from using his mark 'ANNA,' a single bench of Justice Sandeep V Marne held that the principle of 'prosecution history estoppel' would apply in this case.
The doctrine of prosecution history estoppel, which is traditionally associated with patent infringement actions is increasingly being applied in trademark infringement cases and aims to prevent a party from claiming advantages associated with a right consciously waived in previous proceedings.
It was observed that after having declared during registration, that there was no similarity between his mark and the defendant's mark, the Plaintiff could not turn around at the present stage and contend that the two marks were deceptively similar.
Case Title: Madgavkar Salvage v. Bergen Offshore Logistics Pvt Ltd.
Citation: 2023 LiveLaw (Bom) 561
The High Court of Bombay held that under Section 37 of the A&C Act, the challenge must be related to the impugned order passed under Section 34 of the Act and not merely to the arbitral award. It held that it is incumbent upon a party to point out errors in the order under Section 34 to make out a case in appeal under Section 37.
The bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif. S. Doctor held that the Court while exercising powers under Section 37 of the A&C Act cannot take an independent assessment of the arbitral award, therefore, the challenge must be premised on the errors in the impugned order under Section 34. It held that it is not permissible for a party to challenge an arbitral award de hors any challenge to the impugned order.
Case Title: Mataji Educational Institution and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 562
The Aurangabad bench of the Bombay High Court set aside a state government order appointing an administrator over an Ashram School in Nanded District on the ground that one of the teachers had secured employment elsewhere with the connivance of the headmaster.
A division bench of Justice Mangesh S Patil and Justice Neeraj P Dhote held that the order is unsustainable as the reason for the appointment of the administrator does not fall within the 12 circumstances given in clause 3.2 (Appointment of Administrator) of the Ashram School Code.
The court further observed that the Deputy Secretary, Other Backward Bahujan Welfare Department, who issued the order, had no power to appoint an administrator under the Ashram School Code read with section 3 of the Educational Institute Management Act, 1976.
Case Title: Sunil Achyutrao Thete v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 563
The Bombay High Court held that the sanctioning authority for a corruption case cannot exercise its power influenced by the dictation of others.
Justice Bharati Dangre quashed a corruption case against a Range Forest Officer (RFO) upon observing that the sanction to prosecute him was invalid as the Forrest Department, while of the clear opinion that he couldn't be prosecuted, granted sanction on the dictate of the Law Department.
The court allowed a Criminal Revision Application filed by one Sunil Thete, challenging the charges against him under various sections of the Prevention of Corruption Act. The case involved an alleged bribery incident during a government-contracted road construction project.
Case Title: Peoples Education Society Thane v. Assistant Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 564
The Bombay High Court quashed the reassessment proceedings alleging escapement of income on transfer of leasehold rights.
The bench of Justice K.R. Shriram and Justice Neela Gokhale observed that if the amount was already considered in the subsequent AY and the assessment order was also passed, the question of escapement of income for the same amount in the previous AY will not arise as there was no change in the rate of tax.
The petitioner/assessee is a charitable trust registered under the Bombay Public Trust Act, 1950. Petitioner has been undertaking educational activities since 1926 in running English and Marathi-medium schools and colleges.
Case Title: Harish B. Bhoite v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 565
The Bombay High Court directed the State Government to implement a 2018 direction of the Supreme Court in “All India Judges Association Vs. Union of India,” which directed the regularisation of employment of Court Managers responsible for handling the administration of all courts across Maharashtra.
Court Managers are MBA graduates whose assistance in administration is meant to assist judges in devoting more time to judicial functioning and enhancing the efficiency of judicial systems. The managers can also help identify weaknesses and recommend workable steps under the supervision of the judges.
After the matter came up before a division bench comprising Justice GS Kulkarni and Justice Jitendra Jain the court directed the State government to decide on High Court's 2019 proposal.
“We may also observe that it would not be permissible for the State Government, to not take a decision on the regularization proposal on any conditions which are extraneous to the orders passed by the Supreme Court, and the orders passed by the Supreme Court are required to be implemented in letter and spirit,' it observed.
Case Title: Ashok Bhikanrao Deshmukh v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 566
Observing that workers under the Employment Guarantee Scheme (EGS) are not entitled to continued employment or regularisation, the Bombay High Court refused to grant absorption in service to a 60-year-old man who worked for two years under EGS as a Mustering Assistant.
A division bench of Justice Ravindra V Ghuge and Justice YG Khobragade sitting at Aurangabad observed, “…workers working on the EGS are not a part of the process of recruitment and they neither have a right for continued employment, nor can they file ULP complaints under the MRTU and PULP Act, 1971 for claiming regularisation or permanency, nor can they raise an Industrial Dispute on account of being discontinued from the EGS.”
The court, while dismissing the man's writ petition, granted compensation of Rs. 2 lakhs to the petitioner considering that he had been litigating for 37 years and was now 60 years of age.
The petitioner, one Ashok Deshmukh, sought absorption under a Government Resolution (GR) dated December 01, 1995, for absorption of Mustering Assistants in Government services.
Case Title: Aarti Shailesh Shah v. Satish Vasant Dharukkar & Anr.
Citation: 2023 LiveLaw (Bom) 567
The Bombay High Court quashed and set aside process and summons issued to a woman by the Magistrate's court in a cheque bounce case, noting that only her husband was a signatory to the cheque.
Justice Sarang Kotwal quoted the judgement of the Supreme Court in Aparna A. Shah vs M/S. Sheth Developers Pvt. Ltd.
“We also hold that Under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder,” he held.
Case Title: Serum Institute of India Private Limited v. Union of India
Citation: 2023 LiveLaw (Bom) 568
The Bombay High Court dismissed a petition filed by Serum Institute of India Pvt. Ltd. challenging a 2016 amendment to the Income Tax Act.
The bench of Justice KR Shriram and Justice Neela Gokhale observed that the amendment to Section 2(24) by insertion of the impugned sub-clause that includes various subsidies and concessions only indicates the well-established jurisprudential path ensuring that the income tax laws remain attuned to the economic realities and continue to serve as a vital cog in the nation's fiscal machinery. It is the duty of the legislature to ensure that taxation policy reflects a balance between incentivizing economic activity and ensuring the equitable distribution of fiscal resources.
Case Title: Sadanand Gangaram Kadam v. Directorate of Enforcement and Anr.
The Bombay High Court refused bail to Sadanand Kadam, a close associate of Shiv Sena (UBT) MLC Anil Parab, accused in a money laundering case in connection with the construction of an allegedly illegal resort named 'Sai Resort' in Dapoli, situated in Maharashtra's Ratnagiri district.
Justice MS Karnik observed that merely because a separate ECIR is not registered on the basis of an FIR by the Block Development Officer will not mean that there is no predicate offence for the purpose of PMLA. The court noted that some of the offences pertaining to the FIR are scheduled offences under PMLA. The complaint is filed on the basis of the materials which form a part of the investigation into the MoEF complaint as well as the FIR.
The ECIR was registered on the basis of the MoEF complaint. The process issued under the MoEF complaint was quashed by the revisional Court. However, the court noted, the complaint under Section 45 of the PMLA before the Special Court concerns the MoEF complaint as well as the FIR.
The Enforcement Directorate (ED ) arrested Kadam in March 2023 in the money laundering case. He approached the High Court after his bail application was rejected by the Special PMLA Court in October.
Tax Can't Be Imposed Presuming Possible Order Of The Small Causes Court: Bombay High Court
Case Title: TV Patel Pvt. Ltd. v. Dy. Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 570
The Bombay High Court held that one cannot tax the amount that has not accrued to the assessee and has not been received by the assessee on the assumption and presumption that in the future, the small Causes court will at least order the said sum in favour of the appellant or assessee.
The bench of Justice GS Kulkarni and Justice Jitendra Jain observed that the determination of the amount payable by the IDBI to the appellant as prayed for by the appellant in its suit is to be determined by the Small Causes Court, and it is only when the Court passes a final decree that one can say that the right to receive the sum decreed by the Small Causes Court has accrued to the appellant. Till then, the right to receive any sum by the appellant is in jeopardy and subjudice before the Small Causes Court
Citation: 2023 LiveLaw (Bom) 571
The Bombay High Court dismissed a habeas corpus petition filed by a 41-year-old UK citizen seeking custody of his 3-year-old daughter from his estranged wife, an Indian citizen.
A division bench of Justice Revati Mohite-Dere and Justice Gauri Godse, while rejecting the plea, emphasized that it would not be safe to hand over custody to the father due to his reported anger issues and past violent behaviour.
“the child is a girl of a tender age of three and half years and thus requires the care and affection of her mother. Considering the past conduct of the petitioner having anger issues, it will not be safe to hand over custody of the child to him”, the court held.
Case Title: Mustansir Barma v. Executive Engineer A ward & Ors.
Citation: 2023 LiveLaw (Bom) 572
The Bombay High Court dismissed a petition by Padma Shri awardee Mustansir Barma alleging illegal repairs by the owner of ground floor of a building in Colaba observing that the court cannot permit writ jurisdiction to be “weaponized” by delving into disputed questions of fact.
A division bench of Justice GS Patel and Justice Kamal Khata deemed the issue a private dispute and observed –
“If the dispute from this individual Petitioner (who repeatedly asserts that he has been conferred a Padma Shri, as if this is of the slightest consequence to his status as a litigant like any other before us) is that the works are not tenantable repairs, then he should have the courage and take the trouble to file a suit, pay court fees and step into the witness box. Simply put, we are not prepared to accept his word for it (and most certainly not merely because he has a Padma Shri).”
The court criticized the conduct of the petitioner stating that it led to an undue consumption of judicial time. The court concluded that the petition lacks bona fides and appears to be an attempt to involve the court in private disputes.
Case Title: Nikhil H Malkan v. Standard Chartered Investment and Loans (India) Ltd.
Citation: 2023 LiveLaw (Bom) 573
The High Court of Bombay held that Section 29A permits the court to extend the mandate of the arbitral tribunal even when the application is made after the expiry of time limit provided therein.
The bench of Justice Manish Pitale clarified that Section 29A(4) allows the Court to extend the arbitrator's mandate either before or after the specified period's expiry, provided sufficient grounds are demonstrated. The purpose is to ensure the completion of arbitral proceedings, and a rigid time limit is not intended by the legislature.
Case Title: M/s. Siddhivinayak Enterprises v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 574
The Bombay High Court observed that processing of tenders as per a tender condition which was neither publicized nor made part of the tender document amounts to denial of opportunity to eligible bidders and can be challenged under Article 226 of the Constitution.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor temporarily restrained the Pune Municipal Corporation ("PMC") from issuing work order, observing –
“...we are of the, prima facie, opinion that any tender condition not publicized and not made part of the tender document, if permitted to be acted upon at the time of processing the tenders, it amounts to denial of opportunity of participation of many eligible tenderers who otherwise would have been eligible but for altered tender condition.”
The relief came to be granted in a writ petition filed by M/s Siddhivinayak Enterprises, which challenged a tender issued by the PMC on June 21, 2023, inviting bids for the supply of contract labor for sweeping work in specific areas.
Case Title: Manisha G. Shah v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 575
The Bombay High Court quashed the chargesheet filed against a woman accused of beating her husband with a broom and biting his hand, holding that the ingredients constituting the offence of Section 324 IPC were absent.
A division bench comprising Justice Prakash D Naik and Justice NR Borkar allowed the woman's writ petition observing –
“The requisite ingredients to constitute the offence under Section 324 of the IPC are completely absent. The injury certificate of the complainant indicates that he had suffered blunt trauma to the right hand. The medical opinion sought by the police indicates that there is possibility of injuries being caused by self-inflicted. The complainant has expired. The statement of witness does not support the version of complainant. The charge-sheet does not make out offences against the petitioner.”
The case originated from an FIR registered at the behest of petitioner's husband, who accused her of offenses under Sections 324 (voluntarily causing hurt by dangerous weapon or means), 427 (mischief), 504 (insult with intent to provoke), and 506 (criminal intimidation) of the IPC. The allegations included abuse and assault by using a broom, as well as biting the complainant's hand. However, the chargesheet filed after the investigation excluded Section 506.
Case Title: Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr.
Citation: 2023 LiveLaw (Bom) 576
The Bombay High Court held that house arrest is a form of arrest, and the period of house arrest can be taken into account while calculating the total period of custody of an accused.
A division bench of Justice AS Gadkari and Justice Shyam C Chandak granted bail to one Mohammed Farooq Shaikh, who has been in custody for over 5 years and 8 months, including over 4 years of house arrest.
“Mr. Venegavkar, learned counsel for the Respondent No.1-ED submitted that, the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded. We are not in agreement with the learned counsel, as according to us house arrest is ultimately arrest of person, whereby his liberty to be a free person is ultimately curtailed by operation of law”, the court observed.
Case Title: Dadaso Balaso Awad and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 577
The Bombay High Court upheld an advertisement by Directorate of Sports and Youth Services allowing degree holders in Physical Education and State-level sportspersons to compete for the Sports Coach positions.
A division bench comprising Justice GS Kulkarni and Justice Jitendra Jain dismissed a writ petition filed by sports coaches Dadaso Balaso Awad and Yogesh Prakash More praying that only diploma holders from NIS should be considered for the post of Sports Coach.
“This Court cannot lay down the conditions of eligibility, much less can it deal with the issue of whether the desirable qualifications is on par with the prescribed other qualification. This would amount to re-writing the advertisement by the Court which is not permissible. Question of equivalence/non-equivalence will also fall outside the domain of the Court”, the court held.
Case Title: Nita Narendra Nadgouda v. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 578
Observing that the driver of a stationary vehicle on the road has the duty to turn on parking lights, the Bombay High Court attributed 100 percent negligence to the driver of a stationary truck that collided with a motorcycle at night.
Justice Shivkumar Dige enhanced the compensation awarded to the kin of the deceased in the fatal accident in 2003 in a plea seeking by the deceased's kin seeking higher compensation.
“It is significant to note that the driver of the truck / trailer has not examined himself or any witness to prove that he had taken proper care to avoid the accident. The parking lights of the said truck were not on. It was the duty of the driver of the offending truck to put on the parking lights when the truck was stationed on the road…I am holding that there was 100% negligence of the driver of the truck”, the court held.
Case Title: High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 579
Bombay High Court directed Maharashtra Pollution Control Board and BMC to jointly inspect 7 major public projects in Mumbai to ensure compliance with pollution control norms and take legal action against non-compliant stakeholders.
“We direct that the MCGM and the Pollution Control Board shall carry out a joint inspection of the 7 sites and immediately take requisite steps, pass orders and ensure that all the norms at these sites at least are followed. In case any of the stakeholders at these sites is found to be non-compliant, legal action shall also be taken by MCGM and MPCB”, a division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Girish S Kulkarni said.
The court was hearing a suo moto PIL on air pollution in Mumbai. Amicus Curiae, Senior Advocate Darius Khambata, drew attention to a news report highlighting the seven public project sites of the Municipal Corporation of Greater Mumbai (MCGM) which generated dust and caused air pollution. These sites are - road concretisation at suburban Bandra and Khar, the bullet train site at BKC, the Versova-Bandra sea link project, the Mumbai Metro-III, the Mumbai Coastal Road and the Mumbai Trans Harbour Link.
Case Title: High Court of Judicature at Bombay on its own Motion v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 580
The Bombay High Court criticized the state government for underutilization of the designated budget for the procurement of drugs and medical equipment.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor said that unspent budget gets lapsed at the cost of the healthcare system.
“what we, prima facie, find is that the entire budget sanctioned for procurement of drugs and medical equipments has not been spent…We, thus, expect that adequate and appropriate steps shall be taken to spend the budgetary allocation in its entirety otherwise after sanctioning the amount, if it is not used, the same gets lapsed at the cost of the health care system.”
The court was dealing with a suo motu PIL regarding two government hospitals in Nanded and Aurangabad districts of Maharashtra which reported over 50 deaths within a span of four days.
Tea Stored In Warehouse Is An Agricultural Produce, Not Eligible To Service Tax: Bombay High Court
Case Title: Nutan Warehousing Company Pvt. Ltd. v. The Commissioner
Citation: 2023 LiveLaw (Bom) 581
The Bombay High Court issued a writ of certiorari against the Appellate Authority of Advance Ruling (AAAR) and held that “tea” stored in warehouses is agricultural produce and is not eligible for service tax.
The bench of Justice GS Kulkarni and Justice Jitendra Jain observed that a writ of certiorari can be issued only when there is a failure of justice and that it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error that strikes one by mere sight and does not mean a long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such errors should not require any extraneous matter to show their incorrectness.
Case Title: Shaila Madhukar Gore and Ors. v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 582
The Bombay High Court held that it cannot issue direction for protection of a site as a monument of historical importance in the absence of a formal declaration of the site as a monument of State/National importance or a heritage site under a Central or State law or the Development Control and Promotion Regulations for Greater Mumbai (DCR).
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor refused to order protection of Vithal – Rukumai/Rukhmini Temple in South Mumbai observing –
“we are unable to grant the prayers in this Writ Petition in absence of declaration or inclusion of the temple site in question as an ancient monument of National / State importance or as a heritage site.”
The court dismissed a writ petition by four persons seeking protection and preservation of the temple, situated in Girgaum, Mumbai, claiming it to be an ancient temple over 200 years old, associated with historical events.
The court, however, permitted the petitioners to approach authorities in the Central and State Governments, or the MCGM, to seek formal declaration of the temple site as an ancient and historical monument or for inclusion in the list of heritage buildings and precincts.
Case Title: Ajay Mahasukhlal Shah v. Chandrakant Babulal Shah and Ors.
Citation: 2023 LiveLaw (Bom) 583
The Bombay High Court observed that the property owner is the best judge of his residential needs, and the tenant cannot make the landlord adjust to smaller premises to protect the tenancy.
Justice Anuja Prabhudessai upheld an eviction decree observing that the landlords showed a “reasonable and bonafide requirement” of the premises as they along with 11 family members were currently occupying premises only 400 sq ft in area.
“The proven fact is that the need of the Plaintiffs (owners) for additional accommodation is genuine, honest and conceived in good faith and thus reasonable and bonafide. In such circumstances, challenge to the finding rendered by the courts below on the issue of bonafide and reasonable need of the premises cannot be countenanced for the simple reason that the landlord is the best judge of his residential requirement and the tenant cannot dictate terms to him as to how he can and how he should adjust in the available premises”.
Case Title: Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu
Citation: 2023 LiveLaw (Bom) 584
The Bombay High Court upheld the termination of an employee of Hitachi Astemo Fie Pvt. Ltd., an auto parts manufacturer, who was fired over provocative posts on Facebook.
Justice Milind N Jadhav observed –
“Freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness. If that is allowed, it could lead to disastrous consequences. In a given case, one cannot and should not wait for the consequences to occur. Such acts itself are required to be nipped in the bud. Otherwise it would convey a wrong signal to the society at large.”
The court allowed a writ petition filed by Hitachi Astemo Fie Pvt. Ltd. against an order dated May 31, 2023 of the Labour Court, Pune setting aside the charge-sheet and enquiry against the employee as illegal.
Case Title: Sughosh Joshi v. ECI and Anr.
Citation: 2023 LiveLaw (Bom) 585
The Bombay High Court ordered the Election Commission of India (ECI) to conduct a bye-election immediately for the Pune Lok Sabha constituency, which has been vacant since the death of MP Girish Bapat on March 29, 2023.
A division bench of Justice GS Patel and Justice Kamal Khata criticized the ECI's reasoning for not conducting the by-election, claiming that it has been too busy since March 2023 with preparations for the 2024 Lok Sabha elections.
“In any parliamentary democracy, governance is by elected representatives. Those elected to Parliament are the voice of the people. If the representative is no more, another must be elected in his place. The people choose their representatives. A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure”, the court observed.
The court quashed ECI's certificate stating that bye-elections will not be held as it is busy with preparation for 2024 General Elections and the candidate elected in the bye-election will have a very short tenure.
Case Title: Special Director, Directorate of Enforcement v. Jaipur IPL Cricket Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 586
The Bombay High Court upheld the reduction of the total penalty imposed on Jaipur IPL Cricket Pvt. Ltd. (JIPL), owner of the Rajasthan Royals franchise, from Rs. 98.35 crores to Rs. 15 crores for violation of foreign exchange laws and regulations.
A division bench of Justice KR Shriram and Justice Neela Gokhale observed that the Special Director of Enforcement failed to provide any justification for imposing a maximum penalty on the company and its directors and promoters.
“We find that the Special Director has completely failed to apply the doctrine of proportionality as interpreted and elucidated by the Apex Court in its various decisions, while choosing to impose maximum penalty on Respondents…We are in agreement with the finding of the Tribunal that in the absence of any discussion or justification pertaining to the basis for imposing the maximum penalty and juxtaposing this with the alleged acts attributed to each individual, the order of the Special Director is unsustainable”, the court held.
Case Title: National Insurance Co. Ltd. v. Lauretta Shashi Mogale and Ors.
Citation: 2023 LiveLaw (Bom) 587
The Bombay High Court held that arrears cannot be considered while calculating a person's salary for the purpose of compensation for a motor accident.
Justice Shivkumar Dige, while upholding enhancement of compensation to the family of a deceased in an accident, deducted the amount of arrears mentioned in his salary slip while calculating monthly income.
“This salary slip shows the arrears of Rs.8,900/- but Tribunal has considered this amount as salary of the deceased. In my view, arrears cannot be considered as salary. Hence, I am deducting this amount from the salary of deceased”, the court stated.
Case Title: Tribhuvansingh Raghunath Yadav v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 588
The Bombay High Court took suo moto cognizance of the issue of non-production of the undertrial prisoners before the appropriate courts at various stages.
Justice Bharati Dangre was dealing with a bail application by one Tribhuvansingh Raghunath Yadav, an accused in a forgery case who wasn't produced before the Metropolitan Magistrate Court in Andheri on 23 dates either physically or through VC.
“Bail Application No.1836 of 2023 is disposed off, as far as applicant is concerned. However, since the orders which are passed by me appointing the Amicus pertain to the larger issue of production of the under-trial prisoners before the appropriate courts at various stages, the Application is now titled as 'suo motu application' and the registry shall allot a new number to the same”, the court observed.
Case Title: Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad
Citation: 2023 LiveLaw (Bom) 589
A woman who married a man under the misrepresentation that he was divorced would be treated as his 'wife' under Section 125 CrPC, and she is entitled to maintenance, the Bombay High Court held.
Justice Rajesh Patil ruled "that respondent cannot be allowed to deny the maintenance claim to the Petitioner, taking advantage of his own wrong. I am of the opinion as held in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit reported in (1999) at least for the purpose of Section 125 of CrPC, Petitioner would be treated as the 'wife' of the respondent."
According to the judgement, if the claimant woman can establish that she and the respondent have lived together as husband and wife, the court can presume them to be legally married spouses. Especially since the standard of proof to claim maintenance is more relaxed than what would be required in trials under IPC.
Case Title: Maharashtra Eastern Grid Power Transmission Company Ltd. v. Collector of Buldhana and Ors.
Citation: 2023 LiveLaw (Bom) 590
The Bombay High Court held that a transmission licensee appointed as the Telegraph Authority also has the power to determine the compensation amount along with the power to pay compensation for using land for installing electricity transmission lines.
Justice Avinash G Gharote of the Nagpur bench observed that the power to pay compensation under section 10(d) of the Indian Telegraph Act, 1885 includes the power to determine compensation as without determination of compensation, there cannot be any payment.
“The contention of Mr. Kothari, learned counsel for the respondent No.4 (landowner) that section 10(d) of the Telegraph Act only contemplates a power to pay and not to determine the compensation and the compensation has to be determined by the District Collector, in my considered opinion is misconceived…”, the court held.
If the District Collector had the authority to determine the compensation, section 10(d) of the Telegraph Act would have contained such a provision, the court observed.
Bombay High Court Directs Dept. To Permit Amend In GSTR-1, Either Online Or Manual
Case Title: Star Engineers (I) Pvt. Ltd. v. Union of India
Citation: 2023 LiveLaw (Bom) 591
The Bombay High Court directed the department to permit the petitioner or assessee to amend or rectify Form GSTR-1 for the period July 2021, November 2021, and January 2022, either online or manually.
The bench of Justice GS Kulkarni and Justice Jitendra Jain observed that a bona fide, inadvertent error in furnishing details in a GST return needs to be recognized and permitted to be corrected by the department when, in such cases, the department is aware that there is no loss of revenue to the government. The free play in the joint requires eminent recognition. The department needs to avoid unwarranted litigation on issues and make the system more assessee-friendly. The approach would also foster the interest of revenue in the collection of taxes.
Case Title: Shreem Electric Limited v. Transformers and Rectifers India Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 592
The Bombay High Court held that the trial court cannot return a plaint merely on the ground that the defendant's suit is pending in another court and it would be desirable to try both suits together.
Justice Sandeep V Marne set aside an order of the District Court, Kolhapur returning a plaint so that it could be filed in another court without explicitly giving a finding that the District Court, Kolhapur lacked the jurisdiction to entertain the case.
Case Title: Bank of India v. M/s. Maruti Civil Works
Citation: 2023 LiveLaw (Bom) 593
The Bombay High Court held that no appeal is maintainable under the Commercial Courts Act, 2015 against an order of the court dismissing the defendant's application for rejecting or returning a plaint.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor observed that such orders are not specifically enumerated in Order 43 of the CPC which lists the kind of orders appealable under section 13 of the Commercial Courts Act.
The court dismissed an appeal challenging an order of the District Judge, Thane rejecting Bank of India's application for rejecting a commercial suit against it.
Case Title: Manya Vejju v. Sapna Bhog
Citation: 2023 LiveLaw (Bom) 594
The Bombay High Court held that an inquiry under Section 60 of the Copyright Act by the trial court, cannot partake the character of determination as to whether there is indeed no infringement of copyright since the same would tend to pre-empt and prejudge an action for infringement of copyright, which the owner may institute.
Section 60 of the Copyright Act allows a person who has received threats of legal action for copyright infringement or has been wrongly accused of infringement in advertisements to take legal action. The recipient of the threats can file a lawsuit seeking a court declaration of who rightfully owns the copyright. They can also seek a court injunction to stop further threats, as well as monetary damages.
A single bench of Justice NJ Jamadar while remitting the matter back to the trial court for reconsideration, held that while an inquiry can be embarked upon under Section 60, in the present case, the inquiry had transgressed the remit of determination under the enacting part of Section 60 of the Act, as it ventures deep into the arena of infringement of the copyright or otherwise, in substance.
Case Title: HDFC ERGO General Insurance Company Ltd. v. Nayajoddin Nijamuddin and Ors.
Citation: 2023 LiveLaw (Bom) 595
The Bombay High Court ruled that an insurance company, despite cancelling the policy, remains liable under the 'pay and recover' principle if the vehicle owner was not notified about such cancellation before the accident date.
Justice Kishore C Sant sitting at Aurangabad dismissed an appeal filed by HDFC Ergo contesting a judgment of the Motor Accident Claims Tribunal, Jalgaon, directing it to pay compensation to the family of the deceased in a motor accident and recover the amount later from the vehicle owner.
“the appellant could not produce evidence to show that the intimation of cancellation of policy was received by the insured prior to the date of accident. It is the case of the appellant that the intimation was sent to the insured. However, said intimation was not served for want of complete address. The fact remains that the intimation of cancellation of policy was not received by the insured”, the court observed.
Case Title: Dr. Sublendu Prakash Diwakar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 596
The Bombay High Court held that under section 91 of the CrPC, an accused at the stage of framing of charges, can seek production of potentially exculpatory documents voluntarily submitted to investigating officer (IO) even if he has the documents in his possession and submitted copies to the IO.
Justice Bharati Dangre set aside a sessions court order refusing to direct the IO to produce documents submitted by the accused on the ground that the accused already had possession of documents and could produce them during trial.
The court reasoned that the documents produced through the IO as being received by him during the investigation would be significant instead of the accused producing them before the court in defence as there can be a clarification at the stage of framing of charges itself as to what documents were furnished by the accused during the investigation.
Case Title: Gautam P Navlakha v. National Investigating Agency
Citation: 2023 LiveLaw (Bom) 597
There is no material to infer senior journalist and accused Gautam Navlakha had committed a terrorist Act as contemplated under Section 15 of UAPA, the Bombay High Court observed in its detailed order granting him bail in the Bhima Koregaon – Elgar Parishad riots case.
“The actual involvement of the appellant in any terrorist act cannot be even inferred from any of the communications and/ or statements of the witnesses,” the court observed.
The bench of Justices AS Gadkari and Shivkumar Dige granted bail to Navlakha an, accused in the Bhima Koregaon- Elgar Parishad case over alleged Maoist links.
Navlakha, a journalist and activist was arrested on April 14, 2020 for his alleged involvement in the violence that erupted at Bhima Koregaon village in Pune district on January 1, 2018. He has been in jail for over 3 years and 8 months.
Case Title: Atos India Private Limited v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 598
The Bombay High Court held that an agreement to provide manpower to perform maintenance is a contract of service and not a sale contract under the MVAT Act.
The bench of Justice KR Shriram and Justice Neela Gokhale has observed that the pith and substance of the contract or true nature of the transaction show that the contract is a contract for service simpliciter and is not a works contract or composite contract consisting of two contracts, one for service and one for sale, but is an indivisible contract for service only. On examination of the contract as a whole, it becomes obvious that the contract is essentially an agreement to render service. The theory of works contract or the concept of aspect theory is not attractive.
Customs Deputy Commissioner's Order Contrary To AAR's Ruling, Bombay High Court Quashes
Citation: 2023 LiveLaw (Bom) 599
The Bombay High Court quashed the customs deputy commissioner's order contrary to the ruling passed by the Authority of Advance Ruling (AAR).
The bench of Justice G.S. Kulkarni and Justice Jitendra Jain has observed that the ruling passed by the AAR in the petitioner's own case is binding under Section 28 J (1) on the petitioner and the respondents/department as there is no change in law post-decision and the decision has been accepted by the department in the absence of any further challenge before the higher forum.
Bombay High Court Grants Bail To Murder Accused Held For 5 Years Without Framing Of Charges
Case Title: Jahid alias Javed Liyakat Ansari v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 600
The Bombay High Court granted bail to an accused in a murder case citing his prolonged incarceration without the framing of charges for the past five years.
Justice Bharati Dangre while granting bail to one Javed Ansari, stated
“Though the material in the charge-sheet indicate the Applicant's active participation in the subject C.R., if the concerned Court on account of the reason that it was embroiled in several time-bound matters, was not able to take the trial of the Applicant any further, I am left with no other option than to secure his release on bail, as he cannot be incarcerated indefnitely as an under-trial prisoner and it is more than fve years, he remained incarcerated without the trial.”
Case Title: Aniket s/o Shahadev Labade v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 601
The Bombay High Court held that in cases involving offences under both the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a victim does not have the right to file an appeal under Section 14-A of the Atrocities Act against acquittal or bail.
A Full Bench of Justice Mangesh S Patil, Justice Vibha Kankanwadi and Justice RG Avachat sitting at Aurangabad while answering a reference by a Single Judge in an anticipatory bail application held –
“in a case involving offences under both, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Children from Sexual Offences Act, a victim thereof does not have a right to prefer appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.”
The court said that provisions of the CrPC apply to cases involving offences under both Acts, and the victim can appeal against acquittal or conviction for lesser offence as per proviso to section 372 of the CrPC.
Case Title: Parvej Khan v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 602
The Bombay High Court directed the state government to frame guidelines for conducting test identification parades (TI parades) in cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad also directed the state to come up with a standard operating procedure (SOP) to keep details of the victim confidential while participating in the TI parade.
Astonished at the handling of a POCSO case in which a 6-year-old victim was subjected to the identification process within the jail premises, the court criticized the special executive magistrate for not adhering to the stipulated procedures under the POCSO Act, specifically designed to prevent confrontation between the accused and the victim.
Case Title: Leyla Mohmoodi v. Additional Commissioner of Customs
Citation: 2023 LiveLaw (Bom) 603
The Bombay High Court held that the action on the part of the Assistant Commissioner of Customs in disposing of or selling the gold jewellery belonging to the petitioners or assessee subject matter of the proceedings was illegal and unconstitutional.
The bench of Justice GS Kulkarni and Justice Jitendra Jain has directed the respondents or department to restore to the petitioners an equivalent amount of gold, namely 1028 gms, or to compensate the petitioners by making payments equivalent to the market value of the gold, as of date.
The petitioners were Iranian nationals. They arrived at Chhatrapati Shivaji Maharaj International Airport, Mumbai, by Oman Air Flight. The petitioners were wearing gold ornaments (bangles) with a net weight of 1028 grams. They were intercepted by the customs officials at Mumbai Airport, and the gold bangles worn by them were seized by the customs officials.
Case Title: Akshay Ashok Chaudhari and Ors. v. Government of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 604
The Bombay High Court set aside the Maharashtra Administrative Tribunal's (MAT) February 2023 order barring candidates from the Maratha community from being considered for government jobs under the Economically Weaker Sections (EWS) category in the recruitment processes of 2019.
A division bench of Justice Nitin Jamadar and Justice Manjusha Deshpande upheld the state government's decision to allow candidates who initially applied under the Socially and Educationally Backward Class (SEBC) in 2019, to switch to the EWS category during the ongoing recruitment process.
The court highlighted the one-time situation created after the Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Class Act, 2018 (SEBC Act), leading to government resolutions extending the EWS quota to candidates who had initially applied under through SEBC category.
The court noted that no alteration occurred in EWS reservation and the original EWS candidates had not been disqualified, they just had to compete with a larger pool of candidates when the state allowed SEBC candidates to apply under EWS. The SEBC candidates still had to produce due EWS certificates to be eligible under EWS category, the court said.
Case Title: Harjinder Kaur v. The Foreigner Regional Registration Office & Anr.
Citation: 2023 LiveLaw (Bom) 605
The Bombay High Court stayed the deportation of a Yemeni National and ordered his immediate release from the custody of the Pune police. He was detained by the police on 6th November 2023 under the Foreigners Act.
A division bench comprising Justices Revati Mohite Dere and Gauri Godse observed that the Yemeni National – Fahd – was detained at the police station for one month and 18 days in the absence of a designated detention centre as required under the Foreigners Act.
Moreover, it was found that he has been living in India for several years, had a family here, and had also applied for an extension of his visa once he was granted refugee status by the United Nations.
Case Title: Phonographic Performance Ltd. v. Kaamakazi Solution Pvt. Ltd. & Ors.
Citation: 2023 LiveLaw (Bom) 606
The Bombay High Court granted ad-interim injunction against playing of copyrighted songs without license in the New Year 2024 event to be organized at Ramada Hotel, Lucknow.
Justice RI Chagla granted the relief to Phonographic Performance Ltd. (PPL) in its infringement suit against Kaamakazi Solution Pvt. Ltd, the organizer of the event.
“In my view, in the absence of ad-interim relief, the Plaintiff will suffer grave irreparable loss. A prima facie case made out of the likelihood of infringement of the Plaintiff copyrighted works. This Court is of the prima faice view that the balance of convenience is in favour of the Plaintiff and the Defendants have chosen not to make an appearance despite service. Hence, the ad-interim relief is being granted”, the court observed.
Case Title: Gemini Developers v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 607
The Bombay High Court held that additional fees applicable for changing the structure of a slum developer company/firm and inducting third parties is not applicable when the owner inducts his legal heirs as partners in order to ensure smooth transition after his death.
Justice Milind N Jadhav quashed an order of the Slum Development Authority (SRA) directing a slum developer to pay additional fees after the owner converted the sole proprietorship to a partnership and inducted his legal heirs as partners.
“it is crystal clear that the exemption provided in clause (ix) of the SRA office order dated 23.03.2015 is applicable to the facts of the Petitioner's case as the conversion of the proprietorship firm into partnership firm was never intended to induct any third party but only the legal heirs, which even otherwise eventually would have taken place after the demise of Mr. Ramesh Malhotra”, the court observed.
Case Title: Arti Rajesh Karangutkar v. Anna Rocky Fernandes and Anr.
Citation: 2023 LiveLaw (Bom) 608
The Bombay High Court held that a borrower who received loan in cash is liable for dishonour of cheques issued towards repayment even if the loan amount was beyond the permissible limit for cash transactions under the Income Tax Act.
Section 269-SS of the IT Act bars receipt of loan or deposit of more than Rs. 20,000 in cash.
Justice PK Chavan convicted a woman in a cheque bounce case, rejecting her defence that there is a violation of Section 269-SS as the amount given in cash exceeded Rs. 20,000.
“The penalty for taking such advance or deposit in contravention of provisions of Section 269-SS was to be suffered by the taker who accepts the advance. It is thus clear that no person should accept any loan or deposit of a sum of Rs.20,000/- or more otherwise than by an account payee cheque or account payee bank draft. The provision does not say that a person cannot advance more than Rs.20,000/- in cash to another person. The learned Magistrate has wrongly invoked the aforesaid provisions while dismissing the complaint. As such, the provisions of Section 269-SS and 271D of the Income Tax Act have absolutely no bearing over the case in hand…”, the court said.
Case Title: Chintan Vidyasagar Upadhyay v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 609
The Bombay High Court refused to suspend sentence of artist Chintan Upadhyay observing that the confession of co-accused Pradeep Rajbhar, which implicated Upadhyay, was supported by corroborating evidence and was true and voluntary.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse dismissed the application for sentence suspension filed by Upadhyay, who was convicted in the 2015 double murder case of his ex-wife, Hema Upadhyay, and her lawyer, Haresh Bhambhani.
“The aforesaid circumstances corroborate the confessional statement of co-accused-Pradeep which is found to be true and voluntary. It is also pertinent to note that bail granted by the Apex Court was not on merits but on account of long incarceration of the applicant i.e. 5 years and since about 12 witnesses were yet to be examined. Considering the overall evidence on record, this is not a fit case to enlarge the applicant on bail”, the court held.
Case Title: Tata Motors Finance Solutions Ltd v. Naushad Khan
Citation: 2023 LiveLaw (Bom) 610
The High Court of Bombay held that a debt owed to a financial institution covered only under the SARFAESI Act is arbitrable, however, a debt owed to a financial institution to which the provisions of RDDB Act also applies is non-arbitrable.
The bench of Justice Manish Pitale while distinguishing both the acts held that the proceedings under RDDB Act contains exhaustive provisions for the determination as well as the recovery of the determined debt, however, SARFAESI Act contains provisions only for the enforcement of the debt and no provision for the determination/crystallization of the debt.
The Court held that since the RDDB Act contains an exhaustive provision, the debts covered under the ambit of the Act are non-arbitrable.
Case Title: Amar Sadhuram Mulchandani v. Directorate Of Enforcement
Citation: 2023 LiveLaw (Bom) 611
An advocate who signs an application or pleading with scandalous remarks against the Court without reasonable grounds to create an artificial situation so that the matter was recused by a judge may be liable for a contempt action, the Bombay High Court reiterated while contemplating action against two lawyers and issuing contempt notice against their client.
The division bench comprising Justices Nitin Sambre and NR Borkar added that in a conflict between a lawyer's obligations to the Court and his duty to the client, what prevails first is his obligation to the Court.
Case Title: Rajinder Kaur Jaspal Singh Layal v. Union of India
Citation: 2023 LiveLaw (Bom) 612
The Bombay High Court directed the Regional Passport Officer, Mumbai to renew the passports of a woman and her two sons, which were earlier rejected by the Passport Authority due to objections raised by the woman's brother-in-law over the address mentioned by them in their passport applications.
Delivering the judgement, Justices AS Chandurkar and Firdosh P Pooniwalla stated, "A person cannot be deprived of his/her fundamental right to travel abroad on the ground that there is a dispute in respect of the property which is mentioned in the address given by the applicant for the purposes of including it in the passport."
The court however clarified the Petitioners' address in the passport would not by itself confer on them any right in respect of the said property so as to prejudice the brother-in-law in any way.
Nonetheless, the court observed that the right to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution. Therefore, no person can be deprived of this right except according to the procedure established by law as laid down in the Passports Act, 1967.
Case Title: Marico Limited v. KLF Nirmal Industries Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 613
The Bombay High Court refused to vacate its ex-parte order restraining KLF Nirmal Industries from using for its coconut oil products blue packaging and label deceptively similar to that of Parachute Coconut Oil.
Justice RI Chagla observed that KLF Nirmal Industries Pvt. Ltd. failed to prove that Marico Ltd, manufacturer of Parachute coconut oil, knowingly supressed its delay in seeking the injunction against packaging of KLF Nirmal's coconut oil products.
Case Title: Tohid Rehman Shaikh v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 614
An accused claiming to be a juvenile need not produce a Date of Birth (DOB) certificate from his 'first' school to determine his age and a certificate from any school he attended can be submitted under the new Juvenile Justice Act 2015, (JJ Act) the Bombay High Court held.
Justice SM Modak set aside the trial court's order that adjudicated the accused's plea based on the old JJ Act and Rules.
The FIR was registered for kidnapping and rape, as well as under sections of 4 & 6 of the POCSO Act. The accused claimed that he was a juvenile on the date of the offence in 2018.
The Sessions Court had asked the accused to submit documents about his date of birth as per Section 12(3) of the Juvenile Justice (JJ) Rules, 2007, requiring a certificate from the school first attended.
However, Justice Modak observed, that although the trial Court considered Rule 12(3) of 2007 Rules, now 2015 Act and 2016 Rules are enacted. So, earlier rules do not exist."
Quoting the Supreme Court judgment in Rishipal Singh Solanki vs. State of Uttar Pradesh (2021), the High Court said, "What was provided under Rule 12 of the JJ Rules 2007 has been provided under Section 94 of the JJ Act 2015. Section 94(2)(i) only refers to "date of birth certificate from the school" and does not insist on the first school certificate."
Case Title: Nitin Shivdas Satpute v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 615
The Bombay High Court's Nagpur bench restored an order passed by a Magistrate Court in Murtizapur, Maharashtra, issuing process against a college principal for offences under Sections 294 (obscenity), 504 (intentional insult to provoke breach of peace) and 506 (criminal intimidation) of the IPC.
Justice Anil Pansare held that the words allegedly uttered by the Principal asking his colleagues “Whether your wives had come to me for sleeping to tell you that I am of bad character” inside his chamber in front of three other professors would amount to an obscene act.
The college Principal's chamber was a 'public place' as contemplated under Section 294 of the IPC, the court said, adding, “The Sessions Court, however, took an erroneous view that the Principal's Chamber is not a public place.”
Case Title: Shailesh Ranka and Ors v. Windsor Machines Ltd.
Citation: 2023 LiveLaw (Bom) 616
The High Court of Bombay held that a dispute related to the business of the firm cannot be referred to arbitration by a partner in absence of other partners.
The bench of Justice Manish Pitale held that the implied authority granted to a partner does not extend to referring the dispute to arbitration in view of the bar under Section 19(2)(a) of the Partnership Act, 1932.
The Court also held that an arbitration notice issued by one of the partners without the consent of the remaining partners is invalid which renders the petition for the appointment of the arbitrator also invalid.
Case Title: K Raj & Company & Anr v. State of Maharashtra & Ors
Citation: 2023 LiveLaw (Bom) 617
The Bombay High Court ordered the Additional Chief Secretary, Maharashtra Excise Department, to conduct an inquiry into excise officials who seized a company's ethanol despite it not being a contraband as per Bombay Prohibition Act.
A division bench Justice GS Kulkarni and Justice Jitendra Jain in a writ petition observed that the excise officials appeared to have acted on the behest of the petitioner company's competitors and harmed the petitioner's reputation and business interest.
The court further deprecated the officers' high-handedness by publishing photos of the boxes of ethanol with excise officers in the newspapers making it look like illegal materials were seized from the petitioner company.
Case Title: Deepak Sitaram Modhe v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 618
The Bombay High Court quashed a proclamation order against a Police Naik allegedly absconding after raping and threatening a female Police Naik who used to work with him.
Justice Sarang V Kotwal observed that the accused has to be given at least 30 days to appear from the date of publication of the proclamation, as per section 82 of the CrPC.
Case Title: Sitara Anil Sharma v. Apex Grievance Redressal Committee, Slum Rehabilitation Authority, Bandra, Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 619
The Bombay High Court held that the Apex Grievance Redressal Committee (AGRC) of the Slum Rehabilitation Authority (SRA) cannot review its own order in the guise of speaking to the minutes of the order.
Justice Madhav J Jamdar quashed an Order passed by the AGRC while speaking to the minutes of it earlier order, directing the parties to register a different agreement than the one mentioned in the original order.
