Bombay High Court Monthly Digest: March 2023
Amisha Shrivastava
13 April 2023 3:30 AM GMT
Nominal Index [Citation 126 – 175]Shoyab Mehtab Ali v. Divisional Commissioner and Anr. 2023 LiveLaw (Bom) 126Lok Developers vs Deputy Commissioner of Income tax - 2023 LiveLaw (Bom) 127Rakesh Tulsidas Rathod V/s. Jayraj Vishram Vapikar & Ors - 2023 LiveLaw (Bom) 128Dilip Babubhai Shah and Ors. v. Additional Resident Deputy Collector and Ors. 2023 LiveLaw (Bom) 129Shaikh Sana...
Nominal Index [Citation 126 – 175]
Shoyab Mehtab Ali v. Divisional Commissioner and Anr. 2023 LiveLaw (Bom) 126
Lok Developers vs Deputy Commissioner of Income tax - 2023 LiveLaw (Bom) 127
Rakesh Tulsidas Rathod V/s. Jayraj Vishram Vapikar & Ors - 2023 LiveLaw (Bom) 128
Dilip Babubhai Shah and Ors. v. Additional Resident Deputy Collector and Ors. 2023 LiveLaw (Bom) 129
Shaikh Sana Farheen Shahmir and Ors. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 130
Shiva Chanappa Odala v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 131
Rita Kirit Joshi v. New India Assurance 2023 LiveLaw (Bom) 132
M/s. Bora Mobility v. Union of India and Ors. 2023 LiveLaw (Bom) 133
Lyka Labs Limited & Anr. v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 134
Pidilite Industries Limited v. Chiripal Industries Limited 2023 LiveLaw (Bom) 135
Jetair Pvt Ltd v. Deputy Commissioner of Income Tax & Ors. 2023 LiveLaw (Bom) 136
Mahendranath Vidyaniwas Trivedi v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 137
All India Service Engineers Association v. Union of India and Ors. 2023 LiveLaw (Bom) 138
Sara Chemicals and Consultants v. Deepak Nitrite Ltd 2023 LiveLaw (Bom) 139
Gouri Abhay Bhide and Anr v. Union of India and Anr. 2023 LiveLaw (Bom) 140
Lakshdeep Investments & Finance Pvt. Ltd. v. Assistant Commissioner of Income-tax 2023 LiveLaw (Bom) 141
Mantras Green Resources Ltd. & Ors. v. Canara Bank 2023 LiveLaw (Bom) 142
Dagadu Shivaji Lodhe And Anr v. Bhaurao Fakira Dongre And Ors 2023 LiveLaw (Bom) 143
Murlidhar Waman Bombale & Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 144
Sangeeta Natwarlal Karwa and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 145
State of Maharashtra and Ors v. Surendra G. Ghodake 2023 LiveLaw (Bom) 146
Chandrapur District Central Co-operative Bank Ltd. and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 147
Seawoods Estates Ltd. v. Mona Mohan And Ors. 2023 LiveLaw (Bom) 148
Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors. 2023 LiveLaw (Bom) 149
National Textile Corporation Ltd vs. Elixir Engineering Pvt Ltd & Anr. 2023 LiveLaw (Bom) 150
Raj Shrikant Thackeray v. State of Maharashtra 2023 LiveLaw (Bom) 151
Mahadev Gaur Bishwas v. State of Maharashtra & Anr 2023 LiveLaw (Bom) 152
Suresh s/o Devidas Malche v. State of Maharashtra 2023 LiveLaw (Bom) 153
Anil G. Karkhanis v. Kirloskar Press and Anr. 2023 LiveLaw (Bom) 154
Hanuman Motors Pvt Ltd & Anr. vs. M/s Tata Motors Finance Ltd 2023 LiveLaw (Bom) 155
State of Maharashtra v. Kuldeep Subhash Pawar 2023 LiveLaw (Bom) 156
Liladhar @ Vijay Lodhi v. State of Maharashtra 2023 LiveLaw (Bom) 157
Ram Omprakash Patil v. Secretary, Government of India and Ors. 2023 LiveLaw (Bom) 158
Rama Arvind Katarnaware v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 159
John Peter Fernandes v. Saraswati Ramchandra Ghanate & Ors. 2023 LiveLaw (Bom) 160
Avenue Supermarkets Ltd. v. Union of India 2023 LiveLaw (Bom) 161
Mehrunnisa Kadir Shaikh v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 162
Sunil and Ors. v. Jayashri 2023 LiveLaw (Bom) 163
Paromita Purthan v. Municipal Corporation of Gr. Mumbai & Ors. 2023 LiveLaw (Bom) 164
Uday v. Rupali 2023 LiveLaw (Bom) 165
Parshuram S/o Rambhilakh Sharma v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 166
Mamata Banerjee v. State of Maharashtra 2023 LiveLaw (Bom) 167
The Himalayan Club v. Kanwar B. Singh & Ors. 2023 LiveLaw (Bom) 168
Salman Khan v. State of Maharashtra 2023 LiveLaw (Bom) 169
Anushka Sharma v. State of Maharashtra 2023 LiveLaw (Bom) 170
Gypsum Structural India Pvt. Ltd. and Anr. v. Brihanmumbai Municipal Corporation and Ors. 2023 LiveLaw (Bom) 171
Nalini @ Madhavi Madhukar Murkute v. Deepak Manohar Gaikwad and Ors. 2023 LiveLaw (Bom) 172
Indo Nippon Chemical Co. Ltd v. Mumbai Metropolitan Region Development Authority 2023 LiveLaw (Bom) 173
Kalpesh Ghevarchand Jain v. Union of India and Ors. 2023 LiveLaw (Bom) 174
Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr. 2023 LiveLaw (Bom) 175
Reports/Judgments
Case Title: Shoyab Mehtab Ali v. Divisional Commissioner and Anr.
Citation: 2023 LiveLaw (Bom) 126
The Bombay High Court held that the period of incarceration that prisoner has undergone has to be calculated including the period of set off and remission to determine eligibility for parole or furlough under the Maharashtra Prison (Parole and Furlough) Rules.
A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur while setting aside rejection of a prisoner’s parole application held –
“Therefore, while applying Rule 4[2] of the Rules, one has to calculate the period by including the period of set off and remission earned by the petitioner. Therefore, as admittedly the petitioner has undergone the entire period awarded for the offence punishable under Section 397 of the Code, he is eligible for furlough leave.”
Case Title: Lok Developers vs Deputy Commissioner of Income tax
Citation - 2023 LiveLaw (Bom) 127
The Bombay High Court set aside the proceedings initiated by the revenue authorities against the assessee for non-compliance of the reassessment notice issued under Section 148 of the Income Tax Act, 1961, on the ground that the notice was served on the secondary email id registered with the PAN database instead of the registered primary email id or the updated email id mentioned by the assessee in its last Return of Income.
While holding that the Assessing Officer had clearly erred in issuing a notice on the secondary email address when there was a primary email address given by the assessee, the bench of Justices Dhiraj Singh Thakur and Kamal Khata held that the proceedings were vitiated due to lack of a valid service of notice on the assessee.
The petitioner/ assessee, Lok Developers, challenged the reassessment notice issued under Section 148 of the Income Tax Act.
Bombay High Court Orders Child’s custody to Given to the Father At the Police Station
Case Title: Rakesh Tulsidas Rathod V/s. Jayraj Vishram Vapikar & Ors
Citation - 2023 LiveLaw (Bom) 128
Amid the cries of a 10-year-old child refusing to be taken away by his biological father, the Bombay High Court asked the maternal grandfather to handover the child’s custody to the father at the police station later in the day.
A division bench of Justices AS Gadkari and PD Naik denied to look at video footage of the child screaming for help and then physically fighting off the father while the latter attempted to forcibly take him away from the High Court premises. The court was seized with a contempt petition filed by the father against the maternal grandfather and uncle to handover the child's custody.
Case Title – Dilip Babubhai Shah and Ors. v. Additional Resident Deputy Collector and Ors.
Citation – 2023 LiveLaw (Bom) 129
The Bombay High Court recently held that the Collector can pass a compensation award in favour of persons having share in the property under acquisition to the extent of their share even if other interested persons claiming share do not appear before the Collector.
A division bench of Justice RD Dhanuka and Justice MM Sathaye upheld the compensation award for acquisition of certain land for the Bullet Train Project under the Fair Compensation Act. The award was challenged on the ground that it was passed without the petitioners’ consent.
Case Title – Shaikh Sana Farheen Shahmir and Ors. v. State of Maharashtra and Ors.
Citation – 2023 LiveLaw (Bom) 130
A case will not have religious angle merely because the boy and girl in a relationship are from different religions, the Aurangabad bench of Bombay High Court held.
A division bench of Justice Vibha Kankanwadi and Justice Abhay Waghwase granted anticipatory bail to a Muslim woman and her family accused of forcing a Hindu man to convert to Islam.
Bombay High Court Quashes Sexual Assault Case Under POCSO After Child’s Mother Consents
Case Title: Shiva Chanappa Odala v. State of Maharashtra & Anr.
Citation – 2023 LiveLaw (Bom) 131
The Bombay High Court has quashed an FIR registered against a 19-year-old male student under IPC and POCSO for the abduction and sexual assault of a minor teenager with the complainant’s - mother’s consent.
Justices Nitin Sambre and SG Dige observed that the couple was on “friendly terms” and lived together without informing the girl’s parents. And this miscommunication was the reason behind the FIR.
Case Title: Rita Kirit Joshi v. New India Assurance
Citation – 2023 LiveLaw (Bom) 132
In a significant order the Bombay High Court has held that a ‘newborn’ baby would include a ‘pre-mature baby’ and the insurer would be liable to pay for all expenses related to the infant’s care.
It rejected the insurance policy clause which stated that “expenses relating to illness or injury to the new-born” did not include “expenses relating to postnatal care, pre-term or premature care.” “It is distinction without a difference,” the bench said.
Who Is The Proper Authority To Decide IGST Refund? Bombay High Court Directs The Dept. To Decide
Case Title: M/s. Bora Mobility v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 133
The Bombay High Court directed the department to decide who has the proper authority to decide on an IGST refund.
The division bench of Justice Nitin Jamdar and Justice Abhay Ahuja noted that the customs authorities claimed that the GST authority is the proper officer for processing refund claims, whereas the GST authorities claim that it is the customs officer.
The court directed both authorities to discuss amongst themselves and file a joint note, failing which the officers would be directed to remain present in court.
NI Act| Company's Authorized Signatory Not "Drawer" Of Cheque : Bombay High Court
Case Title: Lyka Labs Limited & Anr. v. State of Maharashtra & Anr.
Citation: 2023 LiveLaw (Bom) 134
The Bombay High Court held that authorised signatory of a company who signs a cheque on its behalf is not the "drawer" of the cheque and hence such signatory is not liable to pay interim compensation under section 143A of the Negotiable Instruments Act, 1881 in a case for dishonour of cheque.
"The signatory of the cheque, authorized by the "Company", is not the drawer in terms of section 143A of the NI Act and cannot be directed to pay interim compensation under section 143A", the court held.
Justice Amit Borkar further held that persons who are not the drawers of the cheque are not required to make the deposit in terms of Section 148 of the Act while filing appeal against conviction under Section 138 of the NI Act.
Case Title: Pidilite Industries Limited v. Chiripal Industries Limited
Citation: 2023 LiveLaw (Bom) 135
The Bombay High Court held that there is no prima facie deceptive similarity between Fevicol manufacturer Pidilite Industries’ logo having two elephants against backdrop of a sunset and Chiripal Industries’ logo having containing word Tikawoo with the device of a rhino against the backdrop of sun.
The court however, granted interim injunction in favour of Pidilite restraining Chiripal from using marks similar or identical to plaintiff’s “HEATX”, “LW+”, and “LW” marks.
Bombay High Court Quashes Reassessment Proceedings Against Jetair
Case Title: Jetair Pvt Ltd v. Deputy Commissioner of Income Tax & Ors.
Citation: 2023 LiveLaw (Bom) 136
The Bombay High Court quashed the reassessment proceedings against Jetair Pvt Ltd, a group entity of Jet Airways (India) Ltd, and has set aside the notice issued by the revenue department under Section 148 of Income Tax Act, 1961 against Jetair, seeking to reopen assessment for the relevant assessment year.
The bench of Justices Dhiraj Singh Thakur and Kamal Khata rejected the contentions raised by revenue department that payment of commission to Jetair, who is a sales agent of Jet Airways, at a rate lower than what is charged by it from other unrelated airlines on the domestic and international ticket sales, was a colourable device, with an aim to evade tax.
Case Title: Mahendranath Vidyaniwas Trivedi v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 137
Observing that it was a question of a public tender process being subverted by ex-facie dubious documents, the Bombay High Court rejected a contractor’s petition against the Oil And Natural Gas Corporation Ltd.
A division bench of Justices Gautam Patel and Neela Gokhale refused to set aside ONGC’s order banning the petitioner - Carlton Industries Engineers from participating in any of the bids for six months.
The petitioner was banned after ONGC’s enquiry officer concluded that Carlton had submitted a revised Undated Completion Certificate in collusion with the Project Coordinator of work at ONGC with a sole intent to take advantage and get themselves qualified for tender.
“…The undated certificate seems to shower compliments on the Petitioner, apart from wishing him great success and all good luck. To say that we have never seen ONGC or its officers acting in so magnanimous fashion with any contractor might be a great understatement,” the bench observed.
The court also said there were disputed questions of fact which couldn’t be adjudicated in the petition under Article 226 of the constitution.
Case Title: All India Service Engineers Association v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 138
Holding that Air India employees were granted accommodation on leave and license and not as a matter of right, the Bombay High Court held that eviction of employees due to privatisation cannot be termed an Industrial dispute.
A division bench of Justice SV Gangapurwala and Justice Sandeep V Marne dismissed a batch of writ petitions filed by employee unions of Air India challenging the Central Government’s refusal to refer the dispute to the industrial tribunal.
Case Title: Sara Chemicals and Consultants v. Deepak Nitrite Ltd
Citation: 2023 LiveLaw (Bom) 139
The Bombay High Court ruled that no appeal is maintainable under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act) against the order of the Arbitral Tribunal directing the party to disclose the contents of sealed envelope submitted by it at the time of tendering of evidence, since the same did not relate to the subject matter of arbitration nor was it a subject matter of the claim/counter claim raised by the parties and thus, it fell outside the purview of Section 17.
The bench of Justice Bharati Dangre held that the power exercised by the Arbitrator in allowing the application filed by the claimant and in directing disclosure of the information submitted by the opposite party in the sealed envelope, is an order passed under Section 19 and not under Section 17 since power under Section 17 can only be exercised for protection of the subject matter of the dispute.
Case Title: Gouri Abhay Bhide and Anr v. Union of India and Anr.
Citation: 2023 LiveLaw (Bom) 140
The Bombay High Court dismissed a PIL seeking CBI and ED investigation into the alleged "disproportionate" wealth of Maharashtra's ex-CM Uddhav Thackeray, his wife and two sons.
"We hold this petition is an abuse of the process of the law," a division bench of Justices Dhiraj Thakur and Valmiki Menezes said imposing Rs. 25,000 cost on Dadar residents Gouri Bhide (38) and Abhay Bhide (78).
The bench found the petition to be "bereft of any evidence", much less evidence which would give a basis to come to a conclusion that a prima facie case was made out for the CBI or any other agency.
Case Title: Lakshdeep Investments & Finance Pvt. Ltd. v. Assistant Commissioner of Income-tax
Citation: 2023 LiveLaw (Bom) 141
The Bombay High Court quashed the reassessment order on the grounds that the only reason for issuing the notice under Section 148 of the Income Tax Act appeared to be that the Assessing Officer had come to a different opinion on the question of valuation than the one adopted by the petitioner.
The division bench of Justice Dheeraj Singh Thakur and Justice Valmiki SA Menezes has observed that the order rejecting the objections has not even once mentioned the valuation report submitted by the petitioner during the earlier assessment proceedings after scrutiny, nor does it refer to the method used by the petitioner for valuation.
Case Title: Mantras Green Resources Ltd. & Ors. v. Canara Bank
Citation: 2023 LiveLaw (Bom) 142
The Bombay High Court reiterated that the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) bars the jurisdiction of the Civil Court only in respect of the applications filed by banks/ financial institutions for recovery of debt, however, it does not bar the jurisdiction of the Civil Court to try a suit filed by the borrower.
The bench of Justice Bharati Dangre remarked that even though a remedy is available to the borrower to file a counterclaim in the application filed by the bank/financial institution before the Debt Recovery Tribunal (DRT), the same does not bar the borrower to file a civil suit raising an independent claim against the bank/financial institution.
While dealing with an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) by the borrower, the Court held that since the borrower has an option to file a civil suit, Section 8 of the A&C Act will immediately come into picture, in view of the arbitration clause existing between the parties. The Court thus referred the parties to arbitration.
Section 151 CPC | Bombay High Court Allows Correction In Sale Deed After 38 Yrs
Case Title: Dagadu Shivaji Lodhe And Anr v. Bhaurao Fakira Dongre And Ors
Citation: 2023 LiveLaw (Bom) 143
Observing that the Court’s powers under Section 151 and 152 of the Code of Civil Procedure are to rectify errors and do substantial justice, the Bombay High Court allowed correction in a sale deed after thirty-eight years.
Section 5 of the Limitation Act is elastic enough to apply the law in a meaningful manner to meet the ends of justice, Justice Sharmila Deshmukh at the Aurangabad bench observed.
Case Title: Murlidhar Waman Bombale & Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 144
A single deathly blow doesn’t warrant commuting a murder conviction to culpable homicide, the Bombay High court observed while upholding the life sentence of a man who struck his neighbour with a sickle in 2012.
A division bench of Justices Sunil Shukre and Abhay Waghwase refused to commute 25-year-old Murlidhar Bombale’s conviction for 302 (murder) to 304(II) (culpable homicide) of the IPC. The court however acquitted Bombale’s brother and father of the murder charge and merely held them guilty under sections 324 (causing hurt by dangerous weapons) and 325 (grievous hurt) of the IPC.
Case Title: Sangeeta Natwarlal Karwa and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 145
The Bombay High Court held that once a land acquisition compensation award is passed under the National Highways Act, 1956 by the competent authority, the authority cannot make corrections in it.
A division bench of Justice RD Dhanuka and Justice MM Sathaye held –
“The National Highways Act, 1956 being the self-contained code, the provisions of Section 33 of the Fair Compensation Act, 2013 granting the limited powers in respect of the award declared under the provisions of the Fair Compensation Act, 2013 cannot be extended to the award declared under the provisions of the National Highways Act, 1956.”
"It cannot be held that the Competent Authority under the National Highways Act, 1956, would have any power or authority to either correct the award for any reason whatsoever or for that matter, to pass an additional award or to review the same," it added.
Case Title: State of Maharashtra and Ors v. Surendra G. Ghodake
Citation: 2023 LiveLaw (Bom) 146
The Bombay High Court held that a man whose conviction for cruelty to wife was set aside due to compromise and not merits would not be entitled to 100 percent back wages during the period of his dismissal from service.
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne set aside a Maharashtra Administrative Tribunal order granting 100 percent back wages to a constable who was convicted of cruelty but later acquitted due to compromise.
Case Title: Chandrapur District Central Co-operative Bank Ltd. and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 147
The Bombay High Court recently held that the Chief Minister of Maharashtra does not have independent powers to interfere with the subject assigned to another Minister.
Justice Vinay Joshi and Justice Valmiki SA Menezes of the Nagpur bench quashed CM’s order staying the recruitment process of the Chandrapur District Central Co-operative Bank observing that the subject fell under the authority of the Minister of Co-operation.
The court added that there must be express provision authorizing the CM to act on a matter assigned to a particular Ministry. Further, under the Maharashtra Government Rules of Business and Instructions the Minister is not subordinate to the Chief Minister regarding independent functioning of a department assigned to him, said the court.
Case Title: Seawoods Estates Ltd. v. Mona Mohan And Ors.
Citation: 2023 LiveLaw (Bom) 148
Observing that the Animal Birth Control Rules, 2023 formulated by the Central Government notified on March 10, 2023 answers the question of feeding strays or community dogs inside a housing society “optimally”, the Bombay High Court disposed of a petition involving warring management of Seawoods Estate Limited and dog lovers from the society.
According to the Rules, in case a dispute arises between the apartment owners and care givers, a 7-member Animal Welfare Committee would be formed and its decision would be final.
“If this is the architecture of the Rules, then clearly there is no issue for us to decide. There is now legislative framework that occupies the field,” the bench said.
Case Title: Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors.
Citation: 2023 LiveLaw (Bom) 149
The Goa bench of Bombay High Court held that daughter’s right to family property does not extinguish merely because she was provided dowry at her marriage.
Justice MS Sonak quashed a Transfer Deed made by brothers transferring family property without the consent of the appellant sister.
Case Title: National Textile Corporation Ltd vs. Elixir Engineering Pvt Ltd & Anr.
Citation: 2023 LiveLaw (Bom) 150
The Bombay High Court has set aside an arbitral award passed by the Facilitation Council by invoking statutory arbitration under Section 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), while holding that the Council could not have exercised jurisdiction to conduct arbitration in a dispute arising under a works contract.
The bench of Justice Manish Pitale remarked that a works contract is not amenable to the provisions of the MSMED Act, and therefore the MSMED Act could not have been invoked by the claimant/ award holder.
The Court concluded that the lack of jurisdiction of the Facilitation Council to conduct the arbitral proceedings rendered the arbitral award patently illegal.
Case Title: Raj Shrikant Thackeray v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 151
The Bombay High Court quashed an order passed against Maharashtra Navnirman Sena (MNS) president Raj Thackeray refusing to discharge him from a 2008 “unlawful assembly case” regarding agitations seeking jobs for Maharashtrians in the Railway.
Justice Amit Borkar remanded the matter back to the Sessions court of Islampur directing it to decide the revision application afresh as the order lacked proper reasoning.
Case Title: Mahadev Gaur Bishwas v. State of Maharashtra & Anr
Citation: 2023 LiveLaw (Bom) 152
Observing that a three-year-old child cannot be expected to give an exact description of her private parts or identify the accused based on a photograph, the Bombay High Court upheld the 10 -year sentence of the child’s neighbour under the Protection of Children from Sexual Offences Act (POCSO).
Justice Bharati Dangre upheld the neighbour’s conviction by a Special Court for offences punishable u/s. 376(2) and Section 6 of the POCSO Act for raping the victim girl by penetrating his finger into the vagina.
“A little girl of 3 ½ years who is not even introduced to her own organs, cannot be expected to give exact description of her private parts, but in her statement recorded u/s.164, she has categorically stated that XXXX’s father had touched her at the toilet place by his nails,” the judge observed
Case Title: Suresh s/o Devidas Malche v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 153
The Bombay High Court held that DNA test report cannot be solely relied on for conviction when the ocular evidence does not support it.
“When the ocular evidence was not supporting, conviction ought not to have been based only on the DNA test report i.e. medical report”, the court held.
A bench of Justice Vibha Kankanwadi and Justice Khobragade sitting at Aurangabad set aside a man's rape conviction observing that the victim changed her testimony and the DNA evidence was not reliable.
Case Title: Anil G. Karkhanis v. Kirloskar Press and Anr.
Citation: 2023 LiveLaw (Bom) 154
The Bombay High Court granted an 83-year-old lawyer the license to translate and publish the autobiography of devout Gandhian - Madeleine Slade also known as Mira Behn in Marathi.
Lawyer Anilkumar Karkhanis said he intended to publish the book titled "The Spirit's Pilgrimage" in Marathi, not for any commercial gain but in public interest. He has approached the court under section 32 of the Copyright Act 1957 for permission as the original publishers are untraceable.
The court took the petitioner’s undertaking on record that he would deposit the Royalty in the High Court, if and when any person raises a claim in that regard.
Case Title: Hanuman Motors Pvt Ltd & Anr. vs. M/s Tata Motors Finance Ltd
Citation: 2023 LiveLaw (Bom) 155
The Bombay High Court ruled that when one of the parties to the dispute has an overwhelming and unilateral power to appoint a Sole Arbitrator, the same completely vitiates such an appointment as the same is hit by Section 12(5) read with the Seventh Schedule of the Arbitration and Conciliation Act, 1996 (A&C Act).
While dealing with a petition filed under Section 34 of the A&C Act, the Court held that it was not necessary for the petitioner to raise an objection regarding the unilateral appointment before the arbitrator, to be able to raise the same in a Section 34 petition to challenge the arbitral award.
Case Title: State of Maharashtra v. Kuldeep Subhash Pawar
Citation: 2023 LiveLaw (Bom) 156
The Bombay High Court upheld a man's acquittal from charge of culpable homicide for causing death of a cyclist and bullock while driving, on the ground that the direction of path of the bullock cart and the spot it was lying after the collision could not be ascertained from the evidence.
Justice SM Modak added the investigating officer should have prepared a map of the scene and the trial court should have questioned the witnesses to clarify and record correct direction of the vehicles.
Sanatan Sanstha Not Declared Banned Or Terrorist Organization Under UAPA: Bombay High Court
Case Title: Liladhar @ Vijay Lodhi v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 157
Sanatan Sanstha has not been declared a banned or terrorist organization under the Unlawful Activities (Prevention) Act, 2004, the Bombay High Court recently observed.
A division bench of Justice Sunil B Shukre and Justice Kamal Khata granted bail to two members of the Sanstha in the Sunburn Terror Attack Conspiracy 2017 and Nallasopara Arms Haul Case 2018.
“The most intriguing part of this case is that ‘Sanatan Sanstha’ is an organization which has not been declared to be a banned or terrorist organization or a frontal organization of any banned terrorist group within the meaning and contemplation of Unlawful Activities (Prevention) Act, 2004”, the court said.
The court said that the prosecution’s evidence was “disappointing” and there was no prima facie evidence against the accused.
Case Title: Ram Omprakash Patil v. Secretary, Government of India and Ors.
Citation: 2023 LiveLaw (Bom) 158
The Bombay High Court held that once the winning bidder of a tender accepts the refund of deposit paid to confirm the contract without any reservation, he cannot challenge the cancellation of the tender as the contract would stand rescinded.
A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne upheld the cancellation of Central Government’s tender for sale of an agricult
Case Title: Rama Arvind Katarnaware v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 159
Observing that former Maharashtra Governor Bhagat Singh Koshyari’s statements were an analysis of history and the lessons to be learnt from it, the Bombay High Court dismissed a writ petition seeking criminal action against him for his statements about Chhatrapati Shivaji Maharaj, Savitribai Phule and Jyotirao Phule.
A division bench of Justice Sunil B Shukre and Justice Abhay S Waghwase held that the statements cannot be seen as disrespecting any person held in high esteem by members of Scheduled Castes and Scheduled Tribes.
Case Title: John Peter Fernandes v. Saraswati Ramchandra Ghanate & Ors.
Citation: 2023 LiveLaw (Bom) 160
The Bombay High Court reiterated that the doctrine of severability can apply to arbitral awards, so long as the objectionable part can be segregated.
The Court added that if the award is partially set aside by applying the doctrine of severability, the same would not amount to modification or correction of the errors of the arbitrator.
The bench of Justice Manish Pitale further held that the Arbitral Tribunal cannot decided an issue in violation of the terms of the agreement between the parties, by applying the principles of equity. This is so especially when the parties have not expressly authorized the arbitrator to decide the matter ex aequo et bono or as amiable compositeur under Section 28(2) of the Arbitration and Conciliation Act, 1996 (A&C Act), the bench added.
Case Title: Avenue Supermarkets Ltd. v. Union of India
Citation: 2023 LiveLaw (Bom) 161
The Bombay High Court quashed and set aside the rejection of the Petitioner’s declaration for SVLDRS-1.
The division bench of Justice Nitin Jamdar and Justice Abhay Ahuja has observed that the petitioner/assessee was a victim of the lacuna in the software governing the Sabka Vishwas (Legacy Dispute Resolution) (SVLDR) Scheme, 2019 where the Petitioner could not have selected the option of Navi Mumbai Commissionerate which was earlier Commissionerate of the petitioner.
The court observed that the scheme of 2019 which is brought into force by the Finance Act of 2019 is for the settlement of legacy disputes and also gives the opportunity to the taxpayer to come forward to make payments and to resolve their pending disputes. It was also to help the Government to clear the amount locked in litigation to augment the revenue.
The court ruled that the Petitioner is entitled to get his application or declaration SVLDRS-1 to be examined on merits as to whether the Petitioner is otherwise entitled to the benefit of the scheme.
Case Title: Mehrunnisa Kadir Shaikh v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 162
Observing that a sanction isn’t required to prosecute police officers in cases of death due to custodial torture, the Bombay High Court directed a Special CBI Court to charge three police officers with murder of a 23-year-old man in 2009.
Justice PD Naik set aside an order of the Sessions Court simply upholding charges under section 323 (hurt) of the IPC, based on the CBI’s investigation, and instead directed the court to frame charges for offences under Sections 120-B (conspiracy) r/w 302 (murder), 330 & 342 (wrongful confinement) IPC.
Case Title: Sunil and Ors. v. Jayashri
Citation: 2023 LiveLaw (Bom) 163
When no domestic violence is found in a domestic violence case, maintenance cannot be awarded to wife on the ground that husband refused and neglected to maintain her, the Bombay High Court held.
Justice SG Mehare of Aurangabad bench observed that the concept of “refusal and neglect to maintain wife” given in section 125 CrPC does not exist in the Protection of Women From Domestic Violence Act, 2005 (DV Act).
The court held that granting maintenance to wife in a domestic violence case based on concept of refusal and neglect to maintain is beyond the jurisdiction of the Additional Sessions Judge.
Case Title: Paromita Purthan v. Municipal Corporation of Gr. Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 164
"To hate the stray dogs and/or treat them with cruelty can never be an acceptable approach, from persons of civil society," the Bombay High Court observed urging a housing society to take a compassionate view over feeding of stray dogs.
"If the Society continues to take any coercive measures as noted by us above and by physical force, persons like the petitioner are prevented from taking care of these animals, and/or from pursuing such activity which is wholly permissible in law, such actions on their part would not only be contrary to the provisions of law, but also, amount to commission of an offence," the court noted in an order on Monday.
Following the order, RNA Royale Park Cooperative Housing Society Limited's counsel informed the court that there were no bouncers in the Society anymore to prevent dog-feeding.
Subsequently the court directed the society and petitioner to come together and harmoniously decide a feeding spot for the stray dogs. The bench further allowed the intervention of an NGO to identify such spots.
The court sought compassion and cooperation from the housing society.
Citation: 2023 LiveLaw (Bom) 165
The Bombay High Court ruled that the wife’s reputation is lowered by the mere fact that husband has made allegations against her in a newspaper, whether or not the news report is actually defamatory.
A division bench of Justice RD Dhanuka and Justice MM Sathaye was upheld family court’s decree granting divorce to the wife and held that the husband’s overall behaviour constitutes mental cruelty.
The court further noted that the appellant filed criminal complaints not only against his mother-in-law before the Anti-Corruption Bureau but also against the investigating officer, the prosecutor who is a relative of the wife, as well as his wife’s current lawyer.
The court opined that such a person is difficult to deal with and would certainly cause mental harassment.
Antilia Bomb Scare-Mansukh Hiren Murder Case: Bombay High Court Refuses To Order Probe Against Former Mumbai Police Commissioner Parambir Singh
Case Title: Parshuram S/o Rambhilakh Sharma v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 166
The Bombay High Court dismissed a writ petition seeking investigation into former Mumbai Police Commissioner Parambir Singh in connection with the Antilia Bomb Scare-Mansukh Hiran Murder Case.
A division bench of Justice Sunil B Shukre and Justice Kamal Khata held that the petition is based on hearsay evidence and does not disclose any offence at the hands of Singh.
Case Title: Mamata Banerjee v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 167
The Bombay High Court dismissed the criminal application filed by West Bengal's CM Mamta Banerjee seeking to quash the complaint filed against her for allegedly disrespecting the National Anthem in 2022.
Banerjee had assailed an order of the Sessions Court which though set aside the order of issuance of process against her for offence under Section 3 of Prevention of Insults to National Honours Act, but remitted the proceedings back to magistrate to comply with procedure under 200 (verification) and 202 (police inquiry) of CrPC.
The court noted that Banerjee had misread the order of the sessions court with regard to non-fulfilment of Section 3.
"There is no finding recorded by sessions court that offence under Section 3 is not made out. The sessions court was considering necessity hold inquiry under 202 and in that context it has held that the magistrate was not justified in issuing process," Court said.
Dispute Over Ownership Of Facebook Group Not A Trademark Dispute: Bombay High Court
Case Title: The Himalayan Club v. Kanwar B. Singh & Ors.
Citation: 2023 LiveLaw (Bom) 168
The Bombay High Court held that the dispute over ownership of a Facebook Group is not a trademark dispute and can be decided by the Civil Court.
Justice Nitin W Sambre set aside Civil Court’s decision that it did not have jurisdiction over the dispute of ownership of the Facebook Group called The Himalayan Club.
The court said that the Facebook Group is a website and a social media platform for members to exchange ideas etc. and hence it is not a trademark or a copyright.
Bombay High Court Quashes Journalist's Criminal Intimidation Complaint Against Actor Salman Khan
Case Title: Salman Khan v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 169
The Bombay High Court quashed the private complaint against actor Salman Khan filed by a journalist in 2019 alleging criminal intimidation.
A metropolitan court in Andheri had earlier issued summons to the actor, which was challenged in the High Court.
Anushka Sharma Sales Tax Case: Bombay High Court Asks Actor To Approach Appellate Authority Under Maharashtra VAT Act
Case Title: Anushka Sharma v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 170
The Bombay High Court disposed of four tax petitions filed by actor Anushka Sharma and asked her to approach the appellate authority under the Maharashtra Value Added Tax Act.
A division bench of Justices Nitin Jamdar and Abhay Ahuja said that there were disputed questions of fact which would require an inquiry. Therefore Sharma should approach the Joint Commissioner Appeals, of the Sales Tax Department.
Mumbai Gets Heavy Monsoon, Better Tech For Rehabilitation Of 100 Yrs Old Storm Water Drains Can't Be Avoided Merely Due To Extra Cost: Bombay High Court
Case Title: Gypsum Structural India Pvt. Ltd. and Anr. v. Brihanmumbai Municipal Corporation and Ors.
Citation: 2023 LiveLaw (Bom) 171
The Bombay High Court held that use of best possible technology to rehabilitate 100 years old storm water arch drains in Mumbai is of paramount importance as Mumbai receives heavy monsoon every year.
A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne added that merely because the better technology involves extra cost compared to other available technology, use of the better technology cannot be avoided.
Case Title: Nalini @ Madhavi Madhukar Murkute v. Deepak Manohar Gaikwad and Ors.
Citation: 2023 LiveLaw (Bom) 172
The Bombay High Court held that when a plaintiff withdraws a suit partially, conversion of a defendant to a plaintiff is allowed, provided the defendant's interest against other defendants regarding the subject matter property is identical with the plaintiff's.
Justice MM Sathaye set aside a Civil Court order allowing a defendant to be transposed as a plaintiff in a partition suit despite there being a conflict of interest with the original plaintiff.
Case Title: Indo Nippon Chemical Co. Ltd v. Mumbai Metropolitan Region Development Authority
Citation: 2023 LiveLaw (Bom) 173
The Bombay High Court rejected a challenge to alignment of Mumbai's Metro Line 4 observing that the petitioners attempted to stall and delay the project of public importance under the garb of enforcing their private rights.
A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne stated that the petitioners raised baseless arguments and made MMRDA justify each action regarding implementation of metro project unnecessarily.
Custom Authorities Don’t Have Any Power To Seal Immovable Property: Bombay High Court
Case Title: Kalpesh Ghevarchand Jain v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 174
The Bombay High Court held that the Custom authorities do not have any power to seal the premises of a person allegedly involved in smuggling goods.
A division bench of Justice Sunil B Shukre and Justice Kamal Khata in a writ petition held, “…we find that there is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property.”
Case Title: Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr.
Citation: 2023 LiveLaw (Bom) 175
The Bombay High Court held that a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act and has the right to seek interim maintenance in a domestic violence case.
Justice Amit Borkar dismissed a man’s petition challenging maintenance awarded to his wife, a trans-woman, observing that the term 'aggrieved person' under section 2(a) of the Protection of Women from Domestic Violence Act, 2005 has to be given a broad interpretation as the purpose of the Act is to protect women from domestic violence.
