Bombay High Court Weekly Round-up: December 04, 2023 To December 10, 2023
Amisha Shrivastava
12 Dec 2023 10:49 AM GMT
Nominal Index [Citation 561 - 576]Madgavkar Salvage v. Bergen Offshore Logistics Pvt Ltd. 2023 LiveLaw (Bom) 561Mataji Educational Institution and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 562Sunil Achyutrao Thete v. State of Maharashtra 2023 LiveLaw (Bom) 563Peoples Education Society Thane v. Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 564Harish B. Bhoite v. State...
Nominal Index [Citation 561 - 576]
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) 569
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
Reports/Judgments
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.
Citation: 2023 LiveLaw (Bom) 569
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.
Other Developments
The Bombay High Court pulled up the state government for the delay in notifying safety rules to curb man-made disasters such as fire outbreaks in vulnerable buildings. The recommendations of the Expert Committee constituted on the court's order have been pending before the government since February 2023.
“This is not done. I am sitting here to prompt you? Is it our job? Committee's recommendations are ready. They have been submitted in February and now it is December. And the other day here in this city what is happening? Can there be anything more tragic than this? The manner these two deaths have occurred”, Chief Justice Devendra Upadhyaya remarked, referring to the fire outbreak last week in a residential building near Girgaon Chowpatty, Mumbai, in which an advocate's father and grandmother passed away. The 60-year-old man died as he refused to leave his 82-year-old mother's side.
A division bench of Chief Justice Upadhyaya and Justice Arif S Doctor was hearing a PIL filed by lawyer Abha Singh regarding the failure of the State government and the Urban Development Department to finalize Special Regulations for Buildings Vulnerable to Man-made Disasters.
The court directed the Urban Development Department to submit a timeline for incorporation of the safety rules in Development Control and Planning Regulations – 2033 (DCPR -2023) and Unified Development Control and Planning Regulations (UDCPR).
Bombay High Court Introduces Auto-Listing Of Fresh Matters On Trial Basis
The Principal Bench (at Mumbai) of the Bombay High Court initiated auto-listing for freshly filed cases before specific benches from December 11, 2023. The High Court Registrar issued a notice on December 5, outlining the details of this new protocol.
According to the notice, freshly filed matters will be automatically listed for hearing in a supplementary cause list before specific judges on a trial basis. Mentioning these matters before the concerned benches will be permitted only in cases of exceptional urgency that justifies listing earlier than the auto-listing schedule.
The Bombay High Court recently stayed criminal proceedings initiated against a professional photographer for allegedly uploading photos of a classical dancer on the internet, which allegedly led to their distribution on objectionable websites.
A division bench of Justice Prakash D Naik and Justice NR Borkar granted interim relief in a writ petition for quashing of the case stating –
“The question which arises for consideration is whether Section 354(c) and other offences invoked in this proceedings are attracted against the Petitioner. Arguable questions are raised…There shall be ad-interim relief in terms of prayer Clause (D) till final disposal of the Petition.”
The accused Pashminu Mansukhani is booked for offences under Sections 354C (voyeurism), 500 (punishment for defamation) of the IPC, and Section 66E of the Information Technology Act, 2000. Thus, he filed the present writ petition seeking quashing of the case registered against him at DB Marg Police Station, Mumbai and the proceedings pending before Metropolitan Magistrate Court, Girgaon.
Plea Challenging GST SCN Issued To Online Gaming Company Playerzpot Media: Bombay High Court Issues Notice Dept.
The Bombay High Court issued the notice to the department on a plea challenging the GST show cause notice (SCN) issued to online gaming company Playerzpot Media.
The bench of Justice GS Kulkarni and Justice Jitendra Jain has ordered the GST authorities to refrain from passing any final orders on the SCN without leave of the Court.
The court issued the notice to the Attorney General, returnable on January 17, 2024, insofar as the challenge to the provisions of Section 15(5) of the CGST Act, 2017 being unconstitutional and violative of Articles 246A and 366(12) of the Constitution of India was prayed for.
The Bombay High Court directed the Brihanmumbai Municipal Corporation (BMC) to submit an affidavit outlining the measures implemented to address emergencies arising from sudden fires in city buildings.
A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor also instructed BMC to include in the affidavit the Standard Operating Procedure (SOP) adhered to in such situations, the number of fire stations and manpower within municipal limits, and the response time of fire teams in a fire incident.
The court was dealing with a PIL initiated by lawyer Abha Singh urging the state government to promptly release the final notification concerning the 'Special Regulations for Buildings Vulnerable to Manmade Disasters.'
The court directed the state government to strictly adhere to the provided timeline and instructed the state government to furnish an affidavit detailing the progress in adopting the regulations. Additionally, the court directed the petitioner to make the BMC commissioner, chief fire officer, and the director of fire services/fire safety of the Maharashtra government party respondents to the case and seek their responses by the next hearing scheduled for January 30, 2024.
