Bombay High Court Weekly Round-Up: January 01 to January 08, 2023
Amisha Shrivastava
9 Jan 2023 5:12 AM GMT
Nominal Index [Citation 1 – 14]World Phone Internet Services Pvt. Ltd. v. One OTT Intertainment Ltd. In Centre 2023 LiveLaw (Bom) 1Lt. Col. Prasad Purohit v. National Investigation Agency 2023 LiveLaw (Bom) 2Vanashakti and Anr. v. Dharavi Redevelopment Project Slum Rehabilitation Authority and Ors. 2023 LiveLaw (Bom) 3Naresh s/o Netram Nagpure and Ors. v. State of Maharashtra 2023 LiveLaw...
Nominal Index [Citation 1 – 14]
World Phone Internet Services Pvt. Ltd. v. One OTT Intertainment Ltd. In Centre 2023 LiveLaw (Bom) 1
Lt. Col. Prasad Purohit v. National Investigation Agency 2023 LiveLaw (Bom) 2
Vanashakti and Anr. v. Dharavi Redevelopment Project Slum Rehabilitation Authority and Ors. 2023 LiveLaw (Bom) 3
Naresh s/o Netram Nagpure and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 4
Anil Vishnu Anturkar v. Chandrakumar Popatlal Baldota and Ors. 2023 LiveLaw (Bom) 5
Alakshit S/o. Rajesh Ambade v. State of Maharashtra 2023 LiveLaw (Bom) 6
Bennett Coleman & Co. Ltd v. MAD (India) Pvt. Ltd 2023 LiveLaw (Bom) 7
Shobha w/o Deepak Thakre and Ors. v. Union of India 2023 LiveLaw (Bom) 8
Edufocus International Education LLP v. Yashovardhan Birla & Ors. 2023 LiveLaw (Bom) 9
Manas Mandar Godbole v. State of Maharashtra 2023 LiveLaw (Bom) 10
Vinod v. State of Maharashtra 2023 LiveLaw (Bom) 11
Abdul Rasul Nurallah Virjee and Anr. v. Regal Footwear 2023 LiveLaw (Bom) 12
Kantabai v. Union Of India 2023 LiveLaw (Bom) 13
Zishan Mukhtar Hussain Siddique v. State of Maharashtra 2023 LiveLaw (Bom) 14
Reports/Judgments
Dispute Between Service Providers Can’t Be Referred to Arbitration: Bombay High Court
Case Title: World Phone Internet Services Pvt. Ltd. v. One OTT Intertainment Ltd. In Centre
Citation: 2023 LiveLaw (Bom) 1
The Bombay High Court ruled that the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) is a self-contained Code, intended to deal with all disputes arising out of the Telecommunication Services provided in the country and therefore, the dispute between service providers which is likely to affect the consumers/subscribers, cannot be referred to arbitration. Thus, the Court concluded that the dispute between the service providers fell under the umbrella of the Telecom Dispute Settlement and Appellate Tribunal (TDSAT) in view of Section 14(a) (ii) of the TRAI Act.
The bench of Justice Bharati Dangre held that in cases where a special statute has ousted the jurisdiction of the Civil Court by constituting a judicial forum, the parties cannot waive their right to approach the specially created forum by opting for arbitration.
Case Title: Lt. Col. Prasad Purohit v. National Investigation Agency
Citation: 2023 LiveLaw (Bom) 2
The Bombay High Court rejected an appeal filed by Lieutenant Colonel Prasad Shrikant Purohit, a prime accused, seeking discharge in the case of 2008 Malegaon blast that killed six people and injured over 101.
A division bench of Justices AS Gadkari and Prakash Naik pronounced the order. "Even otherwise indulging into an activity of a bomb explosion causing the death of six persons is not an act done by the Appellant in his official duty," said the court and rejected his claim that a sanction was required to prosecute him
"After minutely perusing entire record we are of the considered opinion that, the offence/s alleged against the Appellant under Section 120-B r/w 302 and other related sections of the Indian Penal Code and under the provisions of UAP Act, of commission of murder of six persons and causing serious to grievous injuries to about 100 persons is nothing to do with his official duty. It has nothing to do or related in any manner with the discharge of the official duty of the Appellant," said the court.
Case Title: Vanashakti and Anr. v. Dharavi Redevelopment Project Slum Rehabilitation Authority and Ors.
Citation: 2023 LiveLaw (Bom) 3
The Bombay High Court observed that the Mahim Nature Park (MNP) cannot be exploited for development so long as it is reserved as a "Nature Park" in the Development Plan.
"So long as the Development Plan shows it as a Nature Park, no other activity can be carried out," the court said.
The division bench headed by ACJ SV Gangapurwala disposed of a PIL filed by NGO Vanashakti and activist Zoru Bhathena after the Deputy Collector and Special Land Acquisition officer clarified that the Nature Park has been excluded from the Dharavi Redevelopment project.
Case Title: Naresh s/o Netram Nagpure and Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 4
Once the court extends the judicial custody of an accused, the refusal of sanction to prosecute will not invalidate the extension of custody, the Bombay High Court has held while refusing to grant default bail in a case under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA).
The division bench of Justices Sunil B. Shukre and M.W. Chandwani of the Nagpur bench observed that the power of Special Judge under MCOCA to extend judicial custody by 90 days and power of Additional DGP to give sanction for prosecution under MCOCA have different object.
Though the petitioners applied for bail 30 minutes before the charge sheet was filed, the right to seek default bail would arise only on the next day, the court said adding that for the purpose of ascertaining when the period of authorized custody comes to an end, only the number of completed days is relevant and not the time at which the event having the effect of rendering the custody as unauthorized took place.
Case Title: Anil Vishnu Anturkar v. Chandrakumar Popatlal Baldota and Ors.
Citation: 2023 LiveLaw (Bom) 5
Communications between lawyer and client are privileged and a lawyer cannot be compelled to confirm such a communication in a trial even if it is already disclosed to the trial court by another party, the Bombay High Court held while setting aside a witness summons to a lawyer.
Justice Abhay Ahuja was dealing with Senior Advocate Anil Anturkar’s plea challenging a witness summons directing him to appear before the Civil Judge, Senior Division, Pune in a Civil Suit.
Facts should not be received in evidence unless they are both relevant and admissible, the court said. Therefore, the documents which are privileged under section 126 or 129 of the Act though relevant cannot be produced or received in evidence, the court said.
Grounds of Bail Not Considered - Bombay High Court Quashes Preventive Detention Order
Case Title: Alakshit S/o. Rajesh Ambade v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 6
The Bombay High Court reiterated that the grounds on which bail was granted to an accused have to be considered by the detaining authority while deciding whether the accused needs to be preventively detained or not. The court said that the grounds of bail granted to an accused form an important part of the material available against the accused and the detaining authority has a duty to consider it.
Clause Contained In The Tax Invoice Amounts To An Arbitration Clause: Bombay High Court
Case Title: Bennett Coleman & Co. Ltd v. MAD (India) Pvt. Ltd
Citation: 2023 LiveLaw (Bom) 7
The Bombay High Court held that the clause contained in the invoices, which clearly stipulates a reference to arbitration, deserves to be construed as an arbitration clause.
The single bench of Justice Bharati Dangre observed that any document in writing exchanged between the parties that provide a record of the agreement and in respect of which there is no denial by the other side would squarely fall within the ambit of Section 7 of the Arbitration and Conciliation Act, 1996, and would amount to an arbitration clause.
Case Title: Shobha w/o Deepak Thakre and Ors. v. Union of India
Citation: 2023 LiveLaw (Bom) 8
The Bombay High Court held that an accident while boarding a train in an inebriated state would disentitle a person from receiving compensation under the Railways Act of 1989.
Justice Abhay Ahuja of the Nagpur bench dismissed an appeal filed by 38-year-old deceased Deepak Thakare’s wife Shobha against an order of the Railway Claims Tribunal, Nagpur dated 14th June, 2019. The appeal was filed under section 23 of the Act. The court observed that the MLC report from the community health centre showed the deceased had an alcoholic breath indicating he was intoxicated while boarding the train. This report was signed by an officer on duty and also not denied by the applicant. The tribunal is correct in holding that the case of the appellants would fall under exception (d) to section 124A of the Railways Act, the court observed.
Case Title: Edufocus International Education LLP v. Yashovardhan Birla & Ors.
Citation: 2023 LiveLaw (Bom) 9
The Bombay High Court reiterated that dispute between parties arising under the Leave and License Agreement, emanating from a relationship of a licensor and licensee, cannot be referred to arbitration in view of the statutory bar contained in Section 41 of the Presidency Small Cause Courts Act, 1882 (PSCC Act), as per which the Small Causes Court alone would have the jurisdiction to adjudicate the dispute.
The bench of Justice N. J. Jamadar, however, observed that an Agreement to Lease merely contemplates to create a lease in the future and thus, the bar under Section 41 will not apply to the dispute arising under it. Thus, specific performance of the Agreement to Lease can be sought even before an Arbitrator, the Court held.
Case Title: Manas Mandar Godbole v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 10
The Bombay High Court held that while owners may treat dogs as their children, but dogs aren’t human beings and hence a person cannot be booked under Sections 279 and 337 of the IPC pertaining to endangering a human’s life for a dog’s death.
A bench of Justices Revati Mohite Dere and Prithviraj Chavan quashed an FIR against a Swiggy food delivery partner who met with an accident with a dog while he was riding his vehicle and the animal was trying to cross the road. While both were injured, the animal succumbed to its injuries.
The court observed that the officers 'defied logic' by booking the accused under IPC Sections 279, 337 and 449 and imposed cost of Rs. 20,000 on the state. The bench directed that the cost amount be recovered from the concerned officers’ salaries.
Case Title: Vinod v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 11
The Bombay High Court’s Nagpur bench carved out an exception to continue the compassionate appointment of a junior clerk after the demise of his married brother on the grounds that he was caring for his sister-in-law and nephew since 2013.
A division bench of Justices Sandeep Shinde and Vrushali Joshi directed the Education Officer to grant his approval to continue the petitioner’s service in Wadha school under the compassionate appointment category but also upheld the Scheme against the petitioner.
According to the government resolutions dated December 31, 2002 and September 21, 2017 a married deceased’s widow and child are the only persons eligible for compassionate appointment, not the dependent brother. Siblings would be considered only if the man was unmarried.
The exceptional circumstance in the present case was that the deceased’s wife had given her no objection to her brother-in-law’s appointment. The bench noted that “since Petitioner is looking after family of the deceased since 2013, we think, it would not be appropriate to discontinue the Petitioner’s services in the above facts and circumstances.”
The government pleader submitted that for the scheme of compassionate appointment an unmarried man’s siblings and a married person’s spouse and children are only to be considered as dependents. The court upheld the scheme but directed the Education officer to make an exception.
Bombay High Court Temporarily Restrains Pune's Regal Footwear From Using 'Regal' Trademark
Case Title: Abdul Rasul Nurallah Virjee and Anr. v. Regal Footwear
Citation: 2023 LiveLaw (Bom) 12
The Bombay High Court temporarily restrained Pune’s Regal Footwear from using the mark ‘Regal’ in a trademark infringement suit filed by owners of Mumbai’s Regal Shoes.
Justice R. I. Chagla, while deciding a notice of motion in the suit held, “The Plaintiffs case of passing off is made out particularly considering that the rival marks are identical and used for identical goods/services……infringement is made out in view of the prima facie findings that the Plaintiffs have been able to establish user since 1954 including goodwill and reputation and the Defendant being a junior user, as well as other prima facie findings of the Defendant failing to establish honest concurrent use as well as its case of acquiescence not having been made out.”
Case Title: Kantabai v. Union Of India
Citation: 2023 LiveLaw (Bom) 13
People fall from trains in India, injure themselves and die, the Bombay High Court recently observed and awarded compensation to the kin of a senior citizen who fell off a running train and died in a brutal accident case after a visit to his son in 2011.
While the family claimed that heavy rush in the train had caused the fall, the railways contended that there was no jerk or chain pulling that could have led to an accident. Moreover, no one had reported any untoward incident, therefore the family shouldn’t be granted compensation under section 124A of the Railways Act.
Justice Abhay Ahuja observed that merely because there wasn’t evidence of a jerk or chain pulling incident didn’t mean that the appellant hadn’t died in an untoward incident as defied under Section 123(c)(2).
Bombay High Court quashes spying case for taking photos inside Police Station
Case Title: Zishan Mukhtar Hussain Siddique v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 14
People are free to walk into police stations to lodge a complaint and taking photos inside would not come under the Official Secrets Act, the Bombay High Court has reiterated while quashing an FIR against a man for taking photos of a complaint inside a police station.
A division bench of Justice Revati Mohite Dere and Justice R.N. Laddha in a recent judgment held:
“Police Stations are places, where people are free to go/walk in, to lodge a complaint/FIR, to redress the wrong/injustice done to them. It is always open for the police to put up a board prohibiting photography but if one does take a photo/video, certainly, the said act would not come within the ambit of the Official Secrets Act.”
Other Developments
Member of Parliament Rajan Vichare from Uddhav Balasaheb Thackeray (UBT) Shiv Sena camp has approached the Bombay High Court against Maharashtra Chief Minister Eknath Shinde, Dy CM Devendra Fadnavis and others regarding the decision to reduce his security to just one constable.
The plea states that while CM Shinde-led government is providing double police security to the Private Personal Assistants' and party workers and some people who are not even holding any position but are close to CM Eknath Shinde at the cost of state exchequer, the security of those aligning with UBT Shiv Sena has been reduced.
The Bombay High Court slammed Maharashtra Government’s Food and Administration Department (FDA) for allegedly using defunct standards and taking over 2.5 years for any action against Johnson and Johnson if it believed the baby powder was harmful.
“You are supposedly the torch bearers and champions of public health… I will assume the reverse side. That a baby product is of third-rate quality and may cause fatalities…Is this your sense of urgency?” Justice Gautam Patel asked.
Bombay HC Adjourns PIL Challenging 75% Marks Eligibility Criteria For JEE Mains
The Bombay High adjourned a plea seeking postponement of the JEE Mains 2023 (Session 1) to after it noted that the petitioner has failed to file on record the brochure of the exam. The case was adjourned to Tuesday.
"You have not filed the rules that you are challenging? How can you file petition without the rules which you are challenging?...We have to see how it is unfair," the court remarked.
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep V. Marne was hearing a public interest litigation filed by activist Anubha Sahai challenging eligibility criteria of minimum 75% marks in the Class XII. The plea also seeks deferment of the upcoming JEE Mains examination to April 2023.
Advocate Surendra Gadling an accused in the Bhima Koregaon – Elgar Parishad Caste violence case has approached the Bombay High Court against rejection of his default bail application by the Special NIA Court.
In the plea under Section 21(4) of the NIA Act Gadling has blamed the prison department for the delay of nearly two months in receiving certified copies of the order of the Special Court, to justify the delay in filing the appeal.
Bombay High Court Issues Notice To NIA In Bhima Koregaon Accused Varavara Rao’s Plea
Telugu poet Varavara Rao, accused in the Bhima Koregaon case, has approached the Bombay High Court seeking permission to travel to Hyderabad to undergo cataract surgery in both his eyes.
Justice R. G. Avachat issued notice to NIA in the plea challenging trial court’s order rejecting his request to travel to Hyderabad and stay there for three months. The matter was posted on January 16, 2023.
Varavara Rao is facing accusations under the UAPA over alleged links with Maoists. The Supreme Court on August 10 2022 had granted him permanent medical bail but constrained him to stay within the limits of the city of Greater Mumbai. The court however, granted him liberty to approach the concerned NIA court for permission to go to Hyderabad.
The Bombay High Court issued a notice to the publisher, editor, and reporter of Mumbai based tabloid Mid-day asking why suo moto action should not be taken against them for publishing the name of a child who was booked in a criminal case.
A division bench of Justice Revati Mohite Dere and Justice Prithviraj Chavan said,
“We have perused the photocopy of the said article, so tendered. Having regard to the fact, that Mid-Day has published the name of the child as well as the photographs of the child, in contravention of Section 74 of the Juvenile Justice (Care & Protection of Children) Act, 2015, we deem it appropriate to issue notice to the scribe of the said article – Shirish Vaktania, the Publisher and Editor of Mid-Day, as to why suo-motu action should not be initiated against them.”
The Bombay High Court asked a sessions court in Kolhapur to proceed with the trial in the case of communist leader Govind Pansare's murder. It also sought an investigation report from the ATS regarding the larger conspiracy behind his murder.
While the bench initially questioned why the 2015 petition by Pansare’s kin should be kept pending, their counsel urged the court to continue monitoring the probe, to unravel the larger conspiracy behind the murders of Pansare, Narendra Dabholkar, Professor Kalburgi and journalist Gauri Lankesh.
After Advocate Abhay Nevagi said a senior politician and veteran journalists like Kumar Ketkar and Nikhil Wagle are also on the hit-list along with 40 others, the court sought an investigation report from the ATS.
“We request the learned sessions judge Kolhapur to proceed with the trial. Status report of ATS to be placed on record on February 1,” the court of Justices AS Gadkari and Prakash Naik said in the order.
The Bombay High Court will decide on January 9 whether or not interim relief of release should be to former ICICI bank CEO and MD Chanda Kochhar and her husband Deepak Kochhar in a plea alleging illegal arrest by CBI.
The division bench of Justice Revati Mohite Dere and Justice Prithvi Raj Chavan on Friday reserved for orders the plea challenging Kochhars' arrest in the case of alleged irregularities regarding loans granted to Venugopal Dhoot's Videocon Group.
The court made it clear that it is not entertaining Kochhars’ petition because of their son’s wedding. It is purely on the merits of the case (regarding section 41A CrPC), Justice Dere said.
