Bombay High Court Weekly Round-up: March 4, 2024 To March 10, 2024

Mehandi Kasim Jenul Abidin Shaikh @ Mehandi Kasam Shaikh @Bangali Baba v. State of Maharashtra 2024 LiveLaw (Bom) 120

G.N. Saibaba v. State of Maharashtra 2024 LiveLaw (Bom) 121

Sanjay Pran Gopal Saha v. State of Maharashtra and Ors. 2024 LiveLaw (Bom) 122

Shiv Charan v. Adjudicating Authority 2024 LiveLaw (Bom) 123

Shell India Markets Private Limited v. Union of India 2024 LiveLaw (Bom) 124

Ashok Chaganlal Thakkar v. National Faceless Assessment Centre 2024 LiveLaw (Bom) 125

Indrakumar Jain v. M/s. Dainik Bhaskar and Ors. 2024 LiveLaw (Bom) 126

Yogesh Rajendra Sawant v. State of Maharashtra 2024 LiveLaw (Bom) 127

Bhaulal S/o. Dokraji Reswal v. State of Maharashtra 2024 LiveLaw (Bom) 128

Binod Sitaram Agarwal v. State of Maharashtra & Ors. 2024 LiveLaw (Bom) 129

Hari Sankaran v. Serious Fraud Investigation Office 2024 LiveLaw (Bom) 130

Dr. Jaishri Laxmanrao Patil & Ors. v. Chief Minister, State Of Maharashtra & Ors 2024 LiveLaw (Bom) 131

Wadhwa Group Housing Pvt Ltd v. Vijay Choksi and SSS Escatics Pvt. Ltd 2024 LiveLaw (Bom) 132

Mangal Kashinath Dabhade and Anr. v. State of Maharashtra 2024 LiveLaw (Bom) 133

Hasinabi w/o Abdul Latif v. Mohammad Sharif S/o Abdul Rajjak 2024 LiveLaw (Bom) 134

M/s. Sanathan Textile Pvt Ltd. Versus Union of India 2024 LiveLaw (Bom) 135

Reports/Judgments

Unfortunate That 'Tantrics/Babas' Take Advantage Of Vulnerability & Blind Faith: Bombay HC Upholds Man's Life Term For Rape Of 6 Minor Girls

Case Title: Mehandi Kasim Jenul Abidin Shaikh @ Mehandi Kasam Shaikh @Bangali Baba v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 120

The Bombay High Court confirmed the conviction and life sentence of a man claiming to be a tantric who raped and sexually exploited seven girls, six of them minors, for over five years under the pretext of curing them from begetting intellectually challenged male children.

A division bench of Justice Revati Mohite Dere and Justice Manjusha Deshpande dismissed the appeal filed by one Mehandi Kasim Jenul Abidin Shaikh, alias Bangali Baba, against conviction by the sessions court in April 2016 observing –

“It is an unfortunate reality of our times, that people, at times knock on the doors of so called tantrics/babas, for a solution to their problems and that these so called tantrics/babas, take advantage of the vulnerability and blind faith of these people and exploit them. The so called, tantrics/babas not only exploit their vulnerability, by extracting money from them, but also many a times, sexually assault the victims, under the guise of providing solutions…The appellant took full advantage of the apprehension of the victims mothers and by manipulating their fears, assured to cure the girls and in the process, also financially exploited them.”

No Evidence To Connect Accused To Terrorist Act; Trial Failure Of Justice: Bombay High Court Acquits GN Saibaba

Case Title: G.N. Saibaba v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 121

The Bombay High Court today that the trial of former Delhi University Professor GN Saibaba and others was held despite violation of mandatory provisions of the Unlawful Activities Prevention Act (UAPA) pertaining to arrest, search and seizure, and sanction to prosecute.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes, while acquitting GN Saibaba and others in an alleged Maoist-links case, observed that the trial, held without mandatory compliance, amounts to a failure of justice.

“There is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void. There is non-compliance of the provisions of Sections 43-A and 43-B of the UAPA pertaining to arrest, search and seizure. Statutory presumption under section 43- E of the UAPA would not apply for the offences charged. We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice.”

The Court also observed, "No evidence has been led by the prosecution by any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act, either by participating in its preparation or its direction or in any manner providing support to its commission."

Mere Failure To Perform Contract Does Not Amount To Cheating: Bombay High Court Grants Bail To Man Accused Of Cheating Actor Vivek Oberoi

Case Title: Sanjay Pran Gopal Saha v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 122

The Bombay High Court granted bail to actor Vivek Oberoi's business partner Sanjay Saha arrested in a Rs. 1.55 crore cheating case filed by Oberoi for allegedly siphoning off the funds of their film production firm.

Justice NJ Jamadar held that prima facie, clauses of the partnership agreement supported Saha's contention that the money was used for purposes expressly authorised under the agreement.

“Mr. Ponda, invited the attention of the Court to the clauses in the LLP (Exh.C) especially Clauses 38 (m) and 44 which provide for incurring of expenses for the welfare of the partners and payment of remuneration to the partners. Prima facie, the aforesaid clauses in the partnership agreement support the cause of the submission sought to be advanced on behalf of the applicant”, the court observed.

The court said that the existence of fraudulent or dishonest intention since the inception of the transaction would have to be established at an appropriate stage in the proceedings before the learned Magistrate.

“Mere failure to perform the contract by itself does not amount to cheating. Likewise, the same act or omission may not constitute an offence of cheating and criminal breach of trust, simultaneously”, the court added.

NCLT Has Jurisdiction To Direct ED To Release Attached Properties Of Corporate Debtor: Bombay High Court

Case Title: Shiv Charan v. Adjudicating Authority

Citation: 2024 LiveLaw (Bom) 123

The Bombay High Court held that the NCLT has the jurisdiction to direct the Enforcement Directorate (ED) to release attached properties of a corporate debtor once the resolution plan has been approved and immunity from prosecution is triggered under Section 32A of IBC, 2016.

A division bench of Justice BP Colabawalla and Justice Somasekhar Sundaresan upheld an NCLT order directing the ED to release the properties of a corporate debtor that were attached under the Prevention of Money Laundering Act, 2002 (PMLA).

“Section 60(5) [of IBC] clearly empowers the NCLT to answer the question of whether the statutory immunity under Section 32A has accrued to a corporate debtor. As a consequence, the NCLT is well within its jurisdiction and power to rule that prior attachment of the property of a corporate debtor that is subject matter of an approved resolution plan, must be released, if the jurisdictional facts for purposes of Section 32A exist”, the court held.

TDS Not Liable To Be Deducted On Business Support Services As Not Taxable As FTS: Bombay High Court

Case Title: Shell India Markets Private Limited v. Union of India

Citation: 2024 LiveLaw (Bom) 124

The Bombay High Court held that business support services are not taxable as a fee for technical services (FTS), and no TDS is liable to be deducted.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that even if it is fees for technical or consultancy services, it can be only where fees are paid in consideration for making available technical knowledge, experience, etc. Thus, the view of the AAR that the petitioner, Shell International Petroleum Company Limited (SIPCL), works closely with and advises the employees of the petitioner and hence makes available the services is not correct. The AAR's view, in fact, suffers from fallacy since the agreement continues to operate to date. If the view of AAR is to be held correct, then the contract must be concluded, as once the services and the know-how, skills, etc. are transferred to the petitioner, the need to continue to render services must end.

Actual Agricultural Operation, Not a Necessary Condition To Qualify As Agricultural Land; Bombay High Court

Case Title: Ashok Chaganlal Thakkar v. National Faceless Assessment Centre

Citation: 2024 LiveLaw (Bom) 125

The Bombay High Court held that actual carrying on of agricultural operations is not a necessary condition for deciding that the parcels of land were agricultural lands.

The bench of Justice KR Shriram and Justice Neela Gokhale quashed the order and remanded the matter for passing the fresh assessment order. The AO will only examine whether the evidence brought on record to establish the claim that the lands sold are in the nature of agricultural land is authentic. If the AO has to reject the evidence filed by the petitioner, he shall bring contrary material on record. For that, the AO has to conduct an inquiry to ascertain the authenticity of the certificates filed by the petitioner. The AO may take such steps as required by conducting a necessary inquiry with the concerned government authorities. The contention of the petitioner cannot be rejected purely on the presumption that the lands sold were not agricultural lands because the petitioner sold the parcels of land within two years of purchase.

[MRTU & PULP Act] Working Journalists' Status Distinct From Regular Workmen Due To Special Privileges, Can't Be Considered Employees: Bombay HC

Case Title: Indrakumar Jain v. M/s. Dainik Bhaskar and Ors.

Citation: 2024 LiveLaw (Bom) 126

The Bombay High Court held that working journalists are not employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) and therefore, cannot file complaints of unfair labor practices under the said Act.

A division bench of Justice Nitin Jamdar and Justice Sandeep Marne delivered the judgment on a reference by a Single Judge in three writ petitions filed by working journalists and newspapers challenging Industrial Court orders on complaints.

“The working journalists under Section 3 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 are not included in the definition of "employee" under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Thus, a complaint of unfair labour practice filed by a working journalist under the MRTU and PULP Act is not maintainable”, the court held.

The court said that working journalists have various safeguards under the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Working Journalists Act) and can avail the machinery for dispute resolution under the Industrial Disputes Act, 1947 (ID Act).

Bombay High Court Sets Aside Police Custody Of NCP Worker Booked For Uploading Video Containing Death Threats To Dy CM Devendra Fadnavis

Case Title: Yogesh Rajendra Sawant v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 127

The Bombay High Court set aside the sessions court order granting police custody of NCP (Sharadchandra Pawar) worker Yogesh Rajendra Sawant arrested for allegedly posting a video containing death threats to Deputy CM Devendra Fadnavis.

Justice RN Laddha allowed Sawant's writ petition against the order of the Additional Sessions Judge as Sawant was already in judicial custody and no notice or hearing was given to him before setting aside the judicial custody.

“When the impugned order was passed, the petitioner was in judicial custody. Despite the possibility of promptly issuing and serving notice to the petitioner, no such notice was issued, and he was not granted an opportunity for a hearing. This omission goes against the fundamental principles of natural justice”, the court observed.

Mere Absence Of Medical Evidence Not Ground To Discard Direct And Ocular Evidence: Bombay High Court

Case Title: Bhaulal S/o. Dokraji Reswal v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 128

The Bombay High Court upheld a man's conviction for raping a six-year-old child under the pretext of exorcising and driving out evil spirit from her. The girl passed away after this incident.

Justice Abhay S Waghwase of the Aurangabad bench observed that there was sufficient eyewitness testimony to establish the rape charge despite there being no medical evidence as her family performed her last rites without medical examination.

“merely absence of medical evidence, is no good ground to discard the direct and ocular evidence of parents coupled with evidence of an independent witness regarding rape. Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence. When direct evidence inspires confidence, case of prosecution can still be accepted. Here is a case of such nature where parents and independent witness, who have seen the incident, have narrated the occurrence while in witness box. Their testimonies have not been rendered doubtful. Hence, even in absence of medical evidence, case of prosecution can safely said to be inspiring confidence and can be readily accepted.”

Bombay High Court Orders State Govt To Immediately Repair Internal Roads Of Mumbai's Aarey Milk Colony

Case Title: Binod Sitaram Agarwal v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 129

The Bombay High Court directed the state government's Department of Agriculture, Animal Husbandry, Dairy and Fisheries Development to immediately initiate the repair or reconstruction of internal roads of the Aarey Milk Colony in Mumbai.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor directed that the authorities “shall be guided by the overwhelming public interest of having proper internal roads in the area as also by the measures to be taken for preserving the wildlife and ecology and accordingly take decision at the earliest.”

The court noted that out of the total 52 kilometres of internal roads in the Sanjay Gandhi National Park Eco-Sensitive Zone (ESZ), 7 kms fall under the jurisdiction of the BMC, while the remaining 45 kms requires attention from the state government's Department of Agriculture.

The court directed a stretch of 8.22 kms out of 45 kms to be closed within 10 days, as alternate routes are available. The repair, reconstruction, and maintenance of the remaining internal roads were directed to be immediately undertaken by the Department of Agriculture, Government of Maharashtra.

“Further Detention Will Frustrate Object Of Article 21”: Bombay HC Grants Bail To Former MD Of IL&FS Hari Sankaran In Fraud Case After Nearly 5 Yrs

Case Title: Hari Sankaran v. Serious Fraud Investigation Office

Citation: 2024 LiveLaw (Bom) 130

The Bombay High Court granted bail to Hari Sankaran (63), prime accused in the high-profile Rs. 94 crore IL&FS alleged fraud case, five years after his arrest.

Sankaran, the former Vice Chairman and Managing Director of IL&FS Financial Services Ltd. (IFIN), was arrested on April 1, 2019, by the Serious Fraud Investigation Office (SFIO) for offenses punishable under Sections 447 of the Companies Act, 2013, and Sections 417, 420 read with 120B of the Indian Penal Code.

The Special Judge rejected his application for bail vide an order dated 3rd October, 2019, following which he approached the High Court.

Justice Prithviraj K. Chavan noted that Sankaran has been suffering from various severe ailments, including cardiovascular diseases, diabetes, and other comorbidities.

The court observed that continuing his detention would increase the risk of cardiac death and frustrate the very object of Article 21 of the Constitution, which guarantees the right to life and personal liberty.

NEET Applications Availing 10% Maratha Quota Subject To HC Orders In Pleas Challenging Maratha Reservation: Bombay High Court

Case Title: Dr. Jaishri Laxmanrao Patil & Ors. v. Chief Minister, State Of Maharashtra & Ors

Citation: 2024 LiveLaw (Bom) 131

The Bombay High Court held that any applications received under the advertisement for NEET exam or similar advertisements availing Maratha quota would be subject to further HC orders on petitions challenging the reservation.

The court directed that the candidates should be informed of the orders passed by it in petitions against the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2024 which grants 10% reservation to the Maratha community in jobs and education.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla said –

"in the meantime it would be in the interest of the justice that, if any applications are received under the advertisement dated 9th February 2024 or any other similar advertisements taking benefit of the impugned Act, the same shall be subject to further orders to be passed on these proceedings, on the adjourned date of hearing."

Bombay High Court: Co-Promoters Are Also Liable To Pay Refund With Interest To Allottees In Case Of Delay Under Section 18 Of The RERA.

Case Title: Wadhwa Group Housing Pvt Ltd v. Vijay Choksi and SSS Escatics Pvt. Ltd

Citation: 2024 LiveLaw (Bom) 132

The Bombay High Court bench, comprising of Justice Sandeep V Marne, held that promoters who are part of a real estate project but haven't received any consideration from the allottee will still be classified as “Promoters” under Section 2(zk). Consequently, they will be liable to refund the amount with interest to the allottees under Section 18 of the Real Estate (Regulation and Development) Act, 2016.

Boyfriend's Family Merely Opposing The Relationship On A Single Occasion Not Sufficient To Attract Offence Of Abetment Of Suicide: Bombay HC

Case Title: Mangal Kashinath Dabhade and Anr. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 133

The Bombay High Court discharged a mother-daughter duo booked in an abetment to suicide case for allegedly opposing the relationship of the son with the deceased due to her caste.

Justice MS Karnik set aside an order of the Additional Sessions Judge rejecting their discharge application observing –

“Amol was in a love relationship with the deceased for a considerable period of time. In the present facts, mere expression of opposition of the applicants to the relationship on one occasion without anything more is not sufficient to attract the ingredients of the alleged offences. In my view, a plain reading of Section 306 of IPC and applying it to the undisputed facts of the present case indicates that none of the ingredients are attracted to the case at hand.”

"Illiterate, Unable To Understand Pleadings": Bombay High Court Allows Pardanashin Woman To Add Facts Omitted Earlier In Written Statement

Case Title: Hasinabi w/o Abdul Latif v. Mohammad Sharif S/o Abdul Rajjak

Citation: 2024 LiveLaw (Bom) 134

The Bombay High Court allowed a pardanashin lady to amend her written statement in a suit against her despite the facts proposed to be introduced via the amendment being already known to her and still not included in the original written statement.

Justice BP Deshpande of the Nagpur Bench set aside appellate court's order rejecting her prayer for amendment, observing that though she knew the facts when she filed the written statement, she did not understand the requirements of pleadings in the written statement.

“the petitioner/defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected”, the court held.

Service Tax Not Liable To Be Paid On Ocean Freight/Sea Transportation Services: Bombay High Court

Case Title: M/s. Sanathan Textile Pvt Ltd. Versus Union of India

Citation: 2024 LiveLaw (Bom) 135

The Bombay High Court held that service tax is not liable to be paid on ocean freight or sea transportation services.

The bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla relied on the decision of the Gujarat High Court in the case of SAL Steel Ltd. vs. . Union of India, in which it was held that no tax is leviable under the Integrated Goods and Services Tax Act, 2007, on the ocean freight for the services provided by a person located in a non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India, and the levy and collection of tax on such ocean freight under the impugned notifications is not permissible in law.

Other Developments

No Compelling Reasons To Grant Reservation: PIL Before Bombay High Court Challenges 10% Reservation To Maratha Community

A Public Interest Litigation (PIL) has been filed before the Bombay High Court, seeking to quash the recently enacted Maharashtra State Reservation Act 2024. This legislation grants 10% reservation to the Maratha community under the Socially and Educationally Backward Class (SEBC) category.

“there are no compelling reasons to provide reservation to the community. It is most respectfully submitted that the Respondent No. 1 (State of Maharashtra) has provided the reservation to the Maratha community only after getting under pressure of protest and agitation held by Sh. Manoj Jarange Patil and there are no other compelling reasons for the Respondent No. 1 to grant reservation to the Maratha community”, the PIL contends.

The PIL, filed by one Bhausaheb Pawar, contends that the Act is “manifestly arbitrary” and violates fundamental rights enshrined in the Constitution of India under Article 14, Article 15, Article 16 and Article 21.

Bombay High Court Dismisses Maharashtra's Plea To Stay Judgment Acquitting Prof GN Saibaba & Others

The Bombay High Court dismissed an application filed by the State of Maharashtra Government seeking to stay the acquittal of former Delhi University Professor GN Saibaba and five others in a Maoist-links case under the Unlawful Activities Prevention Act (UAPA).

The State filed an application before the HC bench of Justices Vinay Joshi and Justice Valmiki SA Menezes hours after the bench delivered the judgment.

In the application, the State said it has approached the Supreme Court against the acquittal order passed in the morning. Advocate General Birendra Saraf appeared for the State.

Rejecting the application, the Court held it has become functus officio, meaning that once a judge makes a decision, he or she lacks any power to re-examine that decision. Further, the issue pertained to the liberty of an individual, the Court added.

“Life Of Litigants, Advocates & Govt Employees At Risk” – Plea In Bombay High Court Seeks Reconstruction Of Dilapidated Mulund Court Building, HC Issues Notice

The Bombay High Court issued notice to the state on an advocate's plea highlighting the dilapidated condition of the Mulund Court building, seeking reconstruction.

A proposal to reconstruct the building has remained on paper for over 20 years, the petitioner claimed.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif Doctor said that AGP shall have complete instructions from the State Government and should be briefed by the Principal Secretary of Law and Judiciary department, Principal Secretaries of PWD and Revenue Department, and Collector concerned. The court said it would take the matter up after four weeks.