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Best Of 2022- Important Judgments Of Bombay High Court

Best Of 2022- Important Judgments Of Bombay High Court

LiveLaw reported 527 judgements from Bombay High Court in 2022. Here are some of the important decisions:Can't Decide Whether A Film's Material Denigrates A Community Or Not Without A Challenge To Censor Certificate: Bombay High Court Case Title: Hiten Dhirajlal Mehta vs Bhansali Productions Citation: 2022 LiveLaw (Bom) 50 There can be no prohibition on a film's exhibition in...

LiveLaw reported 527 judgements from Bombay High Court in 2022. Here are some of the important decisions:

Can't Decide Whether A Film's Material Denigrates A Community Or Not Without A Challenge To Censor Certificate: Bombay High Court

Case Title: Hiten Dhirajlal Mehta vs Bhansali Productions

Citation: 2022 LiveLaw (Bom) 50

There can be no prohibition on a film's exhibition in the absence of a challenge to the censor certificate issued by the Central Board for Film Certification (CBFC), the Bombay High Court held refusing any reliefs in a clutch of petitions against the movie Gangubai Kathiawadi which was due for release on February 25.

"The rule of exhaustion of an efficacious alternative remedy applies also in a public interest litigation as it does in respect of a litigation initiated in private interest," a division bench of Chief Justice Dipankar Datta and Justice MS Karnik observed dismissing two PILs and disposing of a petition.

Child Born Out Of POCSO Crime A "Victim" As Defined Under Section 2(wa) CrPC: Bombay High Court

Case Title: Ramesh Tukaram Vavekar v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 55

Reducing the life sentence awarded to a rape convict to 10 years, the Bombay High Court directed him to pay compensation to the child born out of his illicit acts observing that the baby was also "victim" as contemplated under Section 2(wa) of the CrPC.

The victim had not only been abandoned by the appellant but also by her real mother(PW 1). They did not stop there but had put the life of the newly born child into jeopardy by sending him in an Orphanage. In view of Section 2(w a) of the Code of Criminal Procedure, the "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and expression "victim" includes his or her guardian or legal heir. The child born to the victim is indeed her legal heir and also a victim in view of the definition of "victim" and therefore, he must be adequately compensated for as it was the appellant who is responsible for bringing him in this world and then abandoning him at the mercy of an Orphanage.

Social Worker Not Exempt From Exceptions U/S 8 RTI Act, Must Demonstrate Bona Fides In Larger Public Interest: Bombay High Court

Case Title: Rajendra Goyal alias Raju Goyal vs PIO and connected matter

Citation: 2022 LiveLaw (Bom) 78

Claims of being a "social activist" are not enough to get information under the RTI Act, the application must show details sought are bona fide in larger public interest, and without causing "unwarranted invasion of privacy of the individual" under Section 8(1)(j) of the RTI Act, the Bombay High Court has held.

"The logic seems to be this: since Goyal (appellant) is a self-proclaimed activist, the provisions of Section 8 of the RTI Act will not apply to him. That is unacceptable," the court said.

NEET-UG | Students Domiciled In Maharashtra But Passing 10th/ 12th Standard From Outside Not Eligible To Avail State Quota: Bombay High Court

Case Title: Rachna Sanjay Kuwar v. The State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 83

The Bombay High Court held that a medical aspirant domiciled in Maharashtra, but having passed 10th or 12th standard from outside the state shall not be eligible to avail the benefit under State quota for the purpose of NEET-UF examination.

"The Rule applicable since 2018 and followed consistently is that (i) the student should pass 10th and 12th standard from an institution situated within the State of Maharashtra and (ii) must be domicile of State of Maharashtra. Exception is if he has cleared 10th standard prior to the year 2017 from an institution outside the State of Maharashtra, he would still be eligible, provided he has passed 12th standard examination from an institution situated within the State of Maharashtra and he is also domicile of the Maharashtra," the Court said.

Central Govt's Permission Not Necessary For Development Once Collector Opines Land 'Not A Forest': Bombay HC

Case Title: Sankalp Resorts Limited & ors vs State of Maharashtra and ors

Citation: 2022 LiveLaw (Bom) 87

Once the Collector (even in a draft speaking order) opines that a privately owned land parcel is not a "private forest," the Central Government's permission under the Forest (Conservation) Act, 1980 is unnecessary to exploit the land for development, the Bombay High Court held.

A division bench of Justices SJ Kathawalla and Milind Jadhav observed that the Central Act would apply only when a forest land is to be used for non-forest purposes, like when a project is to be set up on the forest land, and particulars of the proposed project are to be set out.

Adopted Son Entitled To Take Adoptive Mother's Caste Even If Biological Father's Records Not Available: Bombay High Court

Case Title: Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi

Citation: 2022 LiveLaw (Bom) 90

Observing that an adopted child becomes a family member of his adoptive parents "in all respects," the Bombay High Court directed authorities to issue a caste certificate to an 18-year-old based on his mother's scheduled caste identity.

The Bench thus held that an adopted child would be entitled to take the caste identity of his adoptive mother, despite the caste authorities' insistence on making the child's biological father's records available.

"One of the effects would be that the child would not get identity of mother and particularly caste of the mother. He would be without identity throughout his life. Similarly, very purpose of adopting child by the petitioner being a single mother would stand frustrated. In our opinion, such a situation could not be envisaged by law."

S.29A Of Consumer Protection Act, 1986 Valid; Consumer Forums Can Pass Orders Without President: Bombay High Court

Case Title : Aparna Abhitabh Chatterjee v Union of India

Citation: 2022 LiveLaw (Bom) 136

The Bombay High Court recently regarded a challenge to the constitutional validity of Section 29A of the Consumer Protection Act, 1986 – whether the exercise of powers by the District Consumer Forum without the President being its party is illegal? A bench answered the question in the negative.

In light of the settled presumption of constitutionality in favour of Legislation unless the contrary is shown, the bench concluded that there is no merit in the challenge to the constitutional validity of Section 29A of the Consumer Protection Act,1986.

Right To Be Forgotten | Man Facing Difficulties In Getting Job Due To An Order By Which He Was Acquitted: Bombay HC Orders Its Removal From Court Website

Case title: ABC v. UOI and others

Case Citation: 2022 LiveLaw (Bom) 137

The Bombay High Court ordered the removal of an acquittal order from the Court's website on a plea moved by a person/accused who was facing difficulties in getting job due to the acquittal order passed in his favour.

Essentially, he had moved to the Court arguing that even though the order was one of acquittal, still it was descriptive, and it had the potential to put a bias in the minds of his prospective employers, customers, bankers & investors.

Jurisdiction U/S 100 CPC Is So Limited That Even Wrong Or Grossly Inexcusable Finding Of Fact Cannot Be Interfered With: Bombay High Court

Case Title : Eknath Genu Pawar & ors V Dattu Santram Haral & ors

Citation: 2022 LiveLaw(Bom) 143

The Bombay High Court adjudicated a challenge to a lower court order seeking re-appreciation of evidence. The single judge Mangesh S. Patil held that jurisdiction under Section 100 of the Code of Civil Procedure is so limited that even a wrong or grossly inexcusable finding of fact cannot be interfered with and hence refused to do so.

The case arose as Eknath Genu Pawar obtained a declaration from the trial court of his being the exclusive owner in possession of the suit properties on the basis of a will executed by one Laxmibai on 30.06.1956. Lower appellate court quashed and set aside the judgment and decree passed by the trial court and dismissed the suit.

Orders Passed By Divisional Commissioner U/S 60 Maharashtra Police Act Are Quasi-Judicial, Must Be Supported By Reasons: Bombay High Court Full Bench

Case Title: Mayur Vasant Sonawane v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 152

A full bench of the Bombay High Court held that the Divisional Commissioner's orders on externment under the Maharashtra Police Act, 1951 are not administrative orders but are quasi-judicial in nature and the officer is duty-bound to give reasons for the same.

Consequently, the matters challenging the order passed under Section 60 of the Maharashtra Police Act, 1951 would lie before a single judge bench and not a division bench under Chapter-XVII of the Bombay High Court Appellate Side Rules, 1960. The The Bench comprising of Justices SS Shinde, Prakash D. Naik and Sarang V. Kotwal said –

The power under Section 60 of the Act of 1951 is quasi judicial in nature and the orders passed under that Section are quasi judicial orders.

There is a duty to give reasons, at least in brief, while disposing the appeals under Section 60 of the Act of 1951.

Hanuman Chalisa Row - 'Persons In Public Life Expected To Act Responsibly' : Bombay High Court Dismisses MP-MLA Duo's Plea To Quash FIR

Case Title: Navneet Ravi Rana and Anr. vs. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 159

The Bombay High Court dismissed a petition filed independent MLA from Amravati Ravi Rana and his wife MP Navneet Rana for quashing a second FIR against them for resisting their arrest over the row to recite the Hanuman Chalisa outside Chief Minister Uddhav Thackeray's family home.

A bench comprising Justices PB Varale and SM Modak observed in the order as follows:

"We find considerable merit in the submission of the Special Public Prosecutor. He was justified in making reference to the FIR, to the declaration of reciting religious versus in the personal residence of the Chief Minister. Such a declaration that a person would recite such religious versus at the residence of another person's place or at a public place is a breach of the personal liberty of the other person. The state government is justified in the apprehension that it could create a law and order problem.

Persons in public life are expected to act responsibly. With great power comes with great responsibility. That shose who are active in public life are expected to act responsibly is not an extra but basic am expectation".

Not Offence U/S 505(2) IPC: Bombay High Court Quashes FIR Against Journalist For Reporting On Differences Between Police Departments In Solapur

Case Title: Amol Kashinath Vyavhare Versus Purnima Chaugule Shrirangi And Others

Citation: 2022 LiveLaw (Bom) 180

Publishing news reports about friction between police officers from different departments doesn't amount to creating ill-will among classes as defined under section 505(2) of the IPC, the Bombay High Court has held.

The bench noted that ingredients of 505(2) of the IPC are that the publication of the article must be with the "intent to create or promote feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever."

S.106 Evidence Act | Husband Can't Be Asked To Explain Wife's Death In Their House Unless Prosecution Establishes Prima Facie Case: Bombay High Court

Case Title : Suresh Ladak Bhagat v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 205

The Bombay High court set aside the conviction of a man in connection with the murder of his wife, even though her body was found in their home and he was found near the deceased.

A Bench reasoned that the accused has a right to maintain silence and it is for the prosecution to first prove its case beyond reasonable doubt, before the accused can be asked to explain the circumstances in his defence.

It noted that as per section 106 of the Indian Evidence Act, the initial burden is on the prosecution to prove its case beyond reasonable doubt. If the prosecution is unable to conclusively prove that the accused harmed his wife, the onus would not shift upon the accused to explain the circumstances in which his wife has died, and her dead body is found in the house occupied by the accused and the deceased.

Compensation Awarded For Property Voluntarily Acquired For Bullet Train Project Not Taxable: Bombay High Court

Case Title : Seema Jagdish Patil v The National Hi-Speed Rail Corporation Ltd.

Citation: 2022 LiveLaw (Bom) 208

Compensation or income received by certain land-owners on account of the property acquired by the National Hi-Speed Rail Corporation Ltd (NHSRCL) for the Mumbai-Ahmedabad bullet train project through private negotiations and sale deed is exempted from tax, the Bombay High Court held.

A division bench observed that merely because the compensation amount to the land-owner is agreed upon, it would not change the character of acquisition, from that of compulsory acquisition to the voluntary sale under the Act.

Forwarding Of Woman's Nude Video Amounts To "Sexually Explicit Act" Under Section 67A IT Act : Bombay HC's Prima Facie View

Case Title: Esrar Nazrul Ahemad Versus State of Maharashtra

Citation - 2022 LiveLaw (Bom) 219

Refusing anticipatory bail to a man accused of forwarding a married woman's nude video to several people, the Bombay High Court observed that prima facie his alleged misdeed would be an offence under Section 67A of the Information Technology Act.

Section 67A prescribes the punishment for publishing or transmitting of material containing sexually explicit act.

Justice Bharati Dangre observed that the term 'sexually explicit' under section 67A of the IT Act wouldn't only mean the act of intercourse and may also include a nude video. Therefore, the court rejected the defence's submission that mere forwarding a nude video would not fall within the purview of 'sexually explicit' content and cited the Oxford dictionary meaning of "explicit," in support.

Defamation Cases For Reporting Details Of FIR Nothing But Attempt To Stifle Reporter: Bombay High Court

Case Title: Vijay and ors vs Ravindra Ghisulal Gupta

Citation: 2022 LiveLaw (Bom) 232

A factual news report on the contents of an FIR is not defamatory and initiating criminal action against the reporter in such a scenario is nothing but an attempt to stifle the scribe and coerce him to withdraw the report, the Bombay High Court's Nagpur bench said.

Justice Vinay Joshi quashed an FIR against the Chairman of Lokmat Media Private Limited Vijay Darda and the Editor-in-Chief Rajendra Darda, accused of defamation under section 500 of the IPC for a report published in 2016.

The court observed that journalists wouldn't be able to report till the final outcome of a case if they were barred from reporting on the FIR, which in turn would deprive the public their right to learn about happenings.

S438 CrPC - Asking Accused To Mark Attendance At Police Station Not Mere Formality, It Is An Opportunity For IO To Investigate: Bombay High Court

Case Title: Syed Athar Ali and Anr. v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 248

The Aurangabad Bench held that the condition of "police attendance" imposed by the court on an accused is not a mere formality and must be used by the police for proper investigation.

"Granting the attendance is not for the purpose of mere attendance. It is an opportunity to the Investigation Officer to make investigation in pursuance of the allegations made against the accused," the court said while granting anticipatory bail.

"Mother Can't Be Asked To Choose Between Child & Career": Bombay High Court Permits Woman To Go Abroad With Daughter

Case title: Anuradha Sharma v. Anuj Sharma

Citation: 2022 LiveLaw (Bom) 250

Observing that a woman cannot be asked to choose between her career and child the Bombay High Court directed her estranged husband to give his no objection for her to travel along with her daughter to Poland.

"...the impugned order has failed to consider the important aspect of right to development, being vested in the petitioner as she cannot be asked to choose between her child and her career, the impugned order is quashed and set aside."

Bombay High Court Directs National ART & Surrogacy Board To Decide Lawyer Couple's Plea For Transfer Of Cryo-Preserved Embryo

Case Title: Arundhati Sukhtankar and Anr. v. UoI

Citation: 2022 LiveLaw (Bom) 251

The Bombay High Court has directed the National Assisted Reproductive Technology and Surrogacy Board to expeditiously decide a Mumbai based couple's plea to transfer their cryo-preserved embryos from a hospital to an IVF clinic.

This will be the first case to be decided by the National Board, counsel for the Ministry of Health and Family Welfare said.

The lawyer-couple approached the High Court as the hospital was unwilling to transfer their embryos citing the new Act, and also due to the ambiguity around constitution and functioning of the National board and State boards under the ART and Surrogacy Act.

JJ Act | Child In Conflict With Law Can Seek Anticipatory Bail U/S 438 CrPC: Bombay High Court

Case title: Raman & Manthan v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 253

The Bombay High Court held that a child in conflict with law as per the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) can file an application under Section 438 of CrPC, seeking anticipatory bail.

A division bench of Justices Sarang Kotwal and Bharat Deshpande observed, " When a child in conflict with law is apprehended, his liberty is curtailed. Section 438 of the Cr.P.C. affords a valuable right to a person, who is likely to be arrested or in other words, whose liberty is likely to be curtailed. Section 438 of the Cr.P.C. does not make any distinction between different persons

[IGST] Roaming Services And International Long-Distance Services Provided By Vodafone Idea To Foreign Telecom Operators Is An Export Of Service: Bombay HC

Case Title: Vodafone Idea Limited v. UOI and Ors.

Citation: 2022 LiveLaw (Bom) 260

The Bombay High Court has ruled that the international Inbound Roaming Services (IIR) and the International Long Distance (ILD) Services provided by Vodafone Idea to Foreign Telecom Operators (FTOs) is an export of services, and thus, Vodafone Idea is eligible for the refund of the IGST paid by it.

Noting that the provisions of Section 13(2) of the IGST Act were applicable, the Court held that the place of supply of service was the location of the recipient of the service, i.e., the location of the FTO, which was outside India.

Approach Of Believing That No Action Can Be Taken Against Wrongdoings Of Govt Servants Needs To Stop: Bombay High Court

Case Title - Jaising Nivrutti Sonawane v. Maharashtra State Road Transport Corporation

Citation – 2022 LiveLaw (Bom) 266

The Bombay High Court dismissed a government bus conductor's appeal against dismissal of service stating, "The approach in this country of believing that when one works for government no action can ever be taken no matter how persistently one is found to be doing wrong is an approach that needs to now stop as fast as possible."

A division bench of Justices G.S. Patel and Gauri Godse said that proportionality of punishment must be considered in any case but that doesn't mean that every single infraction be treated leniently. "When one assesses the doctrine of proportionality, one looks not only at the immediate cause inviting punishment but also at the entire context and, in a given case, a pattern or a history of conduct especially past conduct", the court stated.

Tribal's Son Appointed On Compassionate Grounds Must Produce Caste Certificate If Not Submitted By Parent: Bombay High Court Full Bench

Case Title- Om v. State of Maharashtra and Anr. & Shital v. State of Maharashtra and Ors.

Citation – 2022 LiveLaw (Bom) 267

A full bench of the Bombay High Court has ruled that a compassionate appointee for a reserved category post wouldn't be exempted from submitting a caste validity certificate especially if the original holder of the post didn't produce a caste certificate during his lifetime.

Chief Justice Dipankar Datta, Justice Ravendra Ghuge and Justice Vibha Kankanwadi dismissed two writ petitions seeking directions to the Department of Rural Development to exempt the petitioners from producing a caste certificate since their appointment was on compassionate grounds.

A judgement authored by Justice Ghuge answered the following question in the affirmative-

"Whether, a compassionate appointee, is not required to submit a caste/tribe validity certificate when the parent had secured employment, on the basis of a caste/tribe certificate, on a post which was specifically reserved for a backward category and who did not submit a validity certificate until his/her demise while in service?"

Bombay High Court Disallows Maratha Community Candidates To Avail Retrospective Benefits Under EWS Category In MSEDCL Recruitment Drive

Case Title- Vikas Balwant Alase & Ors. v. Union of India through Secretary & Ors. with connected matters

Citation – 2022 LiveLaw (Bom) 275

The Bombay High Court declared as "unjustified" and "Illegal" Maharashtra Government's decision to allow members of the Maratha community to avail benefits under the Economically Weaker Section (EWS) category midway through an electricity distribution recruitment drive.

The court said that Maratha community candidates (SEBC candidates) were aware that their selection process would be subject to Supreme Court's order in the Maratha Reservation matter.

So once SC's interim order barred them from being considered under the reserved category of MSEBC Act in 2020, the State couldn't have issued a GR permitting eligible candidates to be considered under the EWS reservation.

Bombay High Court Refuses Mentally Challenged Rape Victim To Terminate 35-Week Pregnancy Citing Health Risk

Case Title: Xyz v. The State of Maharashtra & Ors (WP 9012 of 2022)

Citation: 2022 LiveLaw (Bom) 278

The Bombay High Court has refused to allow a mentally challenged rape victim to terminate her 35-week (8.5 months) pregnancy after a board of medical experts opined it was a high risk to maternal health.

A division bench of Justices Gangapurwala and AS Doctor said that the court would be guided by the report of the Expert Committee, but since the pregnancy was a result of rape, certain directions were necessary:

The investigator should remain present at the time of delivery so that DNA samples can be collected soon after the delivery and be used during the trial.

If the child is born alive, the State should take care of the child in accordance with guideline under a 2019 landmark judgement on Medical Termination of Pregnancy.

Maharashtra Stamp Act | Collector Has No Power To Revise Stamp Duty Once It's Already Been Levied & Paid: Bombay High Court

Case Title – Sukoon Construction Pvt. Ltd v. The Collector of Stamp & Anr.

Citation – 2022 LiveLaw (Bom) 280

Bombay High Court held that the Collector of Stamps under the Maharashtra Stamp Act cannot revise stamp duty once it has been levied and paid.

Justice Bharati Dangre while referring to the observed that in Maharashtra Stamp Act, 1958, once the Collector certifies an endorsement on the document depicting payment of full duty, it becomes effective and final and it is not open for him to reopen the adjudication.

The court held that the Collector had become "functus officio" after endorsing the deed and had no further powers to revise the duty. The power of revising the duty is, at the most, available with the Chief Controlling Revenue Authority under Section 53-A of the Stamp Act.

Insurance Ombudsman Performs Quasi-Judicial Functions While Deciding Complaints; Award Can Be Challenged Under Article 227: Bombay High Court

Case Title: Aditya Birla Sun Life Insurance Co. Ltd. v. Insurance Ombudsman & Anr.

Citation: 2022 LiveLaw (Bom) 300

Observing that the Insurance Ombudsman is like a tribunal while deciding a complaint, the Bombay High Court held that an insurance company can challenge Insurance Ombudsman's award before the High Court under Article 227 of the Constitution.

Justice G. S. Kulkarni disagreed with the view taken by the Calcutta High Court that a writ petition under Article 227 of the Constitution against an award passed by the Ombudsman would not be maintainable. The court observed, "It thus may not be an acceptable proposition that merely because Sub-Rule (8) of Rule 17 provides that an award shall be binding on the insurer, the insurer would be precluded from assailing the award by invoking the jurisdiction of this Court under Article 227 being a remedy as guaranteed by the Constitution, more particularly, being an adjudication governed by statutory rules as noted above."

Rape Convict's Advanced Age & Regular Attendance In Court No Reason For Lesser Sentence Than Minimum Punishment Under Law: Bombay High Court

Case Title: Madhukar Makaji Mudgul v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 301

The Bombay High Court held that a rape convict's advanced age and regular attendance in court hearings cannot be a reason for a lesser sentence than the minimum punishment under law. The court enhanced the prison sentence of a man who raped his deaf and mute sister-in-law in 2005.

A division bench of Justices AS Gadkari and Milind Jadhav stated, "Once the trial court had come to the conclusion that the prosecution had squarely proved the offence of rape committed by the accused on the victim beyond reasonable doubt, then there is no reason to defer from the statutory provision and award a lesser sentence than what is prescribed by the statute."

Law Considers Women As 'Weaker Section' Of Society Requiring More Protection: Bombay High Court While Transferring Matrimonial Case

Case Title: Rahul Uttam Phadtare v. Sarika Rahul Phadtare

Citation: 2022 LiveLaw (Bom) 302

The Bombay High Court observed that law considers woman as belonging to weaker section of society and her inconvenience needs to be prioritized.

Justice S. M. Modak in his order in a matrimonial case observed, "Even though this reason may be of some importance, the fact that the Applicant in Miscellaneous Civil Application No.171 of 2022 is a lady, her inconvenience needs to be given more priority because the law considers woman as class belonging to weaker section of society and needs more protection."

Touching Child's Private Parts With Sexual Intent Sufficient To Attract POCSO Act, Absence Of Injury Not Relevant: Bombay High Court

Case Title: Ramchandra Shrimant Bhandare v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 307

Bombay High Court held that touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory.

Justice Sarang Kotwal held, "The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act."

SARFAESI - Dues Of Secured Creditor Superior To Dues To State Govt Departments: Bombay High Court Full Bench

Case Title: Jalgaon Janta Sahakari Bank Ltd. & Anr. v. Joint Commissioner of Sales Tax & Anr. with 11 connected matters

Citation: 2022 LiveLaw (Bom) 316

The Bombay High Court held that the dues of a secured creditor would rank superior to the dues of a state government department on sale of secured asset.

A full bench consisting of Chief Justice Dipankar Datta, Justice M. S. Karnik and Justice N. J. Jamadar answered seven questions of law related to the SARFAESI Act, 2002 and Recovery of Debts and Bankruptcy Act, 1993 (RDDB Act).

The court further held that Chapter IV-A of SARFAESI Act is prospective and will apply from the date it was brought into force, i.e., 24th January 2020.

The court held that a secured creditor cannot invoke section 31B of the RDDB Act to claim priority if it is disabled from obtaining 'priority' under section 26E of the SARFAESI Act for want of CERSAI registration.

The court overruled para 21 of division bench decision in ASREC (India) Limited v. State of Maharashtra. ASREC and paragraph 35 of the division bench decision in SBI v. State of Maharashtra

The court held that the priority under RDDB Act and SARFAESI Act wouldn't apply if the immovable property of the defaulter is attached and proclamation issued in accordance with law before Chapter IV-A of the SARFAESI Act or section 31B of the RDDB Act were enforced.

Morals & Ethics Can't Form Basis For Conviction Under Prevention Of Corruption Act, Proof Of Demand & Acceptance Of Bribe Mandatory: Bombay HC

Case Title: Sayaji Dashrath Kawade v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 324

The Bombay High Court held that a person cannot be convicted under the Prevention of Corruption Act, 1988 (POCA) on the basis of morals and ethics. The basic requirement of demand and acceptance of bribe must be proven by the prosecution beyond reasonable doubt.

Justice S. D. Kulkarni overturned the conviction in a criminal appeal observing –

"The corruption is spreading like cancer in our great nation. The disease of the corruption has been with us since long time. The common man is facing this rampant corruption, but a person for the charges of corruption under the Act cannot be convicted on moral and ethics. When the law provides certain mandatory requirements for proving offence, no shortcut is permitted."

Candidates Born In Maharashtra But Completed 10th/ 12th From Outside Due To Parent's Army Posting Entitled To State Quota In Admissions: High Court

Case Title: Priya Kedar Gokhale and Anr. v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 325

The Bombay High Court read down rule for Maharashtra quota reservation with respect to admission in 5-year law program in the State for candidates who are born/ domiciled in Maharashtra but who could not complete their 10th/ 12th from the State on account of their parent's army posting.

The court stated that the condition of passing 10th and 12th standard from Maharashtra may not be unreasonable, however, relaxation should be made for cases where the candidate does not have a choice, such as the service conditions of the parents due to which they are posted throughout the country in the service of the nation.

[Debt Recovery] Service Of Summons Mandatory, Not Dispensed With Party Entering Appearance By Filing Vakalatnama: Bombay High Court

Case Title: Sunil Gupta and Ors. v. Asset Reconstruction Company (India) Ltd. and Ors.

Citation: 2022 LiveLaw (Bom) 331

The Bombay High Court held that the appearance of an Advocate and filing of a Vakalatnama does not do away with the requirement to serve summons in a debt recovery application observing that serving of summons is a mandatory procedural requirement.

The court held that even assuming that requirement of service of summons was fulfilled, the order is still an ex-parte order as the advocate stopped appearing before the tribunal. There are sufficient grounds to set aside the order under Order 9 Rule 13 of the Civil Procedure Code.

Air India Privatisation: Bombay HC Says Writ Petitions Against Airline No Longer Maintainable

Case Title: R. S. Madireddy and Anr. v. Union of India and Ors. with connected cases

Citation: 2022 LiveLaw (Bom) 343

The Bombay High Court held that writ petitions filed by employees against Air India Limited (AIL) are no longer maintainable due to subsequent privatisation of AIL even though they were maintainable at the inception of the case. The change in the status of the 'authority' against whom the writ was initially claimed plays a significant role in determining the issue of maintainability, said the court.

Class I & II Officers May Be Exempted From Recovery of Excess Payment In Exceptional Cases, Conditions In Rafiq Masih Case Not Exhaustive: Bombay HC

Case Title: Ajabrao Rambhau Patil v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 344

The Aurangabad bench of the Bombay High Court granted protection to a retired Junior Assistant (Class II officer) against recovery of excess salary and benefits erroneously paid to him by the Water Resources Department of the Government of Maharashtra during his service.

"We have two very strong reasons in the present case for arriving at a conclusion that the recovery would be arbitrary, viz. unduly long period of 23 years of recovery and retirement of the petitioner", the court held.

Bombay HC Full Bench Quashes Notices Transferring 'Cherry Picked' NGT Cases From Goa to Delhi

Case Title: The Goa Foundation v. NGT & Ors.

Citation: 2022 LiveLaw (Bom) 347

A full bench of the Bombay High Court has quashed administrative notices issued by the Registrar General of the National Green Tribunal "cherry picking" cases relating to Goa from the Western Zone bench at Pune and transferring them to the Northern bench at New Delhi.

Making various observations on the lack of clarity about the reasons why it was being done as well as the lack of jurisdiction for doing so, the full bench of Chief Justice Dipankar Datta and Justices Gautam Patel and M S Sonak also called the notices violative of Article 14 and suffering "from the impermissible vice of manifest arbitrariness."

Half of Life Imprisonment Is 10 Years for POCSO Offences: Bombay High Court

Case Title: Suresh @ Pintya Kashinath Kamble v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 352

The Bombay High Court sentenced a convict to one half of life imprisonment under the POCSO Act, who will have to undergo a sentence of 10-years.

Justice Sarang Kotwal held that since life imprisonment was not defined under the POCSO Act, the definition of life imprisonment under section 57 of the Indian Penal Code would apply.

The section provides that for calculating a fraction or part of an entire sentence, life imprisonment would be equivalent to imprisonment for twenty years.

"Thus, half of life imprisonment in such cases would mean imprisonment for ten years," Justice Kotwal observed while disposing off the petition.

State's Obligation To Protect Citizens From Wild Animal Attacks, Any Injury Caused Is Govt's Failure: Bombay High Court

Case Title: Anuja Arun Redij v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 353

Stating that while it is the duty of the State government to protect wild animals and not allow them wander outside the restricted zone, the Bombay High Court Monday said it is also obligatory upon the state to protect the citizens from any injuries by the wild animals.

A division bench of Justice G. S. Patel and Justice Gauri Godse ruled that it is a twin obligation of the State Government to protect wild animals and the citizens from any injuries by the wild animals. “If any wild animal causes injury to any person, this in fact is a failure of the State Government to protect right to life guaranteed under Article 21 of the Constitution of India”, the court held.

Well Qualified Wife Expressing Desire To Pursue Job Not Cruelty; Reproductive Choice Insegregable To Woman's Personal Liberty: Bombay High Court

Case Title: Pundlik Yevatkar v. Sau. Ujwala @ Shubhangi Pundlik Yevatkar

Citation: 2022 LiveLaw (Bom) 374

The Bombay High Court held that a wife expressing a desire to work does not amount to cruelty under the Hindu Marriage Act. The court further said that the right of a woman to have reproductive choice is an insegregable part of her personal liberty under Article 21 of the Constitution.

Division bench of Justices Atul Chandurkar and Urmila Joshi-Phalke upheld family court's refusal to grant divorce to the husband on the ground that cruelty is not proven.

The court said that cruelty has to be distinguished from the ordinary wear and tear of the family life. The husband's allegation that the wife was harassing him by expressing that she wants to do the job is vague. Expressing desire by wife who is well qualified that she wants to do the job does not amount to cruelty. The husband has to make out a specific case that the conduct of wife was such a nature that it was difficult for him to lead the life along with her, the court said.

The husband had also accused his wife of terminating her second pregnancy without his consent and thereby subjecting him to cruelty. The bench said that even if the husband's allegations were taken at face value, the wife cannot be accused of cruelty for making a reproductive choice.

S.498-A IPC: Bombay HC Bats For Making Offence Compoundable In Maharashtra, Says Minimum 10 Quashing Petitions Are Filed Everyday

Case Title: Sandip Sarjerao Sule and Ors. v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 380

The Bombay High Court urged the Union of India to consider Maharashtra's bill to make domestic violence cases (498A IPC) compoundable with the permission of the concerned court citing hardships caused to innumerable couples who are constrained to approach the High Court for quashing.

A division bench of Justices Revati Mohite Dere and SM Modak asked the Additional Solicitor General (ASG) to take up the issue with the concerned Ministry at the earliest.

UAPA Trial Without Valid Sanction Is Void; Procedural Safeguards Can't Be Sacrificed: Bombay High Court While Discharging GN Sai Baba

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

Citation: 2022 LiveLaw (Bom) 384

The Bombay High Court (Nagpur Bench) discharged former Delhi University professor G N Saibaba and five others in alleged Maoist links case. The Court has allowed their appeals against conviction and life sentence imposed under the anti-terror law UAPA.

The Court held that the trial was null and void as valid sanction as required under Section 45 of the UAPA was not obtained. The Court observed that procedural safeguards cannot be sacrificed at the altar of a "perceived peril to national security".

Married Daughter Of Deceased Also Entitled To Compensation Under Railways Act: Bombay High Court

Case Title: Sm. Mina v. Union of India

Citation: 2022 LiveLaw (Bom) 389

The Bombay High Court held that a married daughter of a victim of a railway accident would also be entitled to compensation under the Railways Act even though she may not be dependent on him, the Nagpur bench of.

"If Section 123(b)(i) of the Railway Act is perused, it is the definition of dependant wherein daughter is included. There is no qualification either married or unmarried daughter. As such claimant is entitled for compensation," said Justice M.S. Jawalkar.

Govt Servant Turning Hostile In Criminal Trial Does Not Amount To Misconduct, May Be Unethical: Bombay High Court

Case Title: Abdul Rauf Mohammed Khaja v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 403

The Aurangabad bench of Bombay High Court held that a government servant turning hostile in a criminal trial may be unethical, but it does not amount to misconduct capable of being punished.

"Not standing by the statement given under Section 164 of Cr.P.C. during his testimony during trial could possibly be construed as an unethical act not expected of an ideal government servant .... The same, however, would not amount to misconduct capable of being subjected to punishment for ensuring discipline amongst the organization," said the court.

A division bench of Justices Mangesh S. Patil and Sandeep V. Marne further observed that the disciplinary authority is not an expert to gauge the factors leading to hostility of the witness and perjury can only be established by the Sessions Court and not in a disciplinary inquiry.

The court clarified that appointing authority can proceed against the employee departmentally for turning hostile in a criminal trial based on conviction under Section 191 IPC, without conducting any departmental inquiry.

Appeals Against Ex-Parte Orders Should Not Be Encouraged, Defendant Can Always Approach Single Judge: Bombay High Court

Case Title: Kewal Ashokbhai Vasoya v. Saurabhakti Goods Pvt. Ltd.

Citation: 2022 LiveLaw (Bom) 405

The Bombay High Court in an order on a commercial appeal deprecated the practice of filing appeal against ex parte orders and stated that there are inbuilt safeguards in such orders which facilitate the defendants to approach the Single Judge, who passed the order, to vacate, modify or limit the same.

The division bench of Justice G. S. Patel and Justice Gauri Godse said that the appeal court cannot reverse findings of the single Judge based on material that was never placed before the single Judge barring the most exceptional circumstances.

The court also opined that a substantive application by the defendant under Order 39 Rule 4 of the CPC is not mandatory to have a without notice order set aside.

Theft can be considered a 'violent attack' under section 123 of the Railways Act if passenger got injured while attempting to catch phone snatcher: Bombay High Court

Case Title: Narendra S/o Chuhadram Sharma v. Union of India

Citation: 2022 LiveLaw (Bom) 406

The Bombay High Court held that theft can be considered a 'violent attack' under Section 123(c)(1)(ii) of the Railways Act, even if it's not specifically mentioned under the 'untoward incident' definition, in a situation where the passenger falls down and gets injured while running after a thief in a train.

The court said that any ordinary normal person's reaction would be to run towards the thief and try to recover the mobile if someone suddenly snatches the mobile in a train. If he gets injured while doing so it cannot be considered self-inflicted injury as there is no intention to harm oneself.

Obligatory for the Tribunal and Court to award 'just compensation' in accident cases even if it is in the excess of the amount claimed: Bombay High Court

Case Title: Yogesh Subhash Panchal v. Mohd. Hussain Malik and Ors.

Citation: 2022 LiveLaw (Bom) 407

The Bombay High Court held that nit-picking and awarding meagre amounts of compensation to accident victims, unmindful of their deep mental and emotional scars, is an affront of the injured victim while awarding compensation of more than Rs 1 crore to a claimant, who sustained multiple injuries in a road accident in 2004.

Justice Anuja Prabhudessai stated that there is no embargo in awarding compensation more than that claimed by the Claimant. It is obligatory for the Tribunal and Court to award 'just compensation', even if it is in the excess of the amount claimed. Court observed that paraplegia not only impairs the physical, mental, social and financial wellbeing of a married victim but also impacts the lives of his spouse who inevitably becomes main caregiver, children and infirm parents.

Labelling Husband As 'Alcoholic', 'Womaniser' Without Substance Is Cruelty: Bombay High Court

Case title – Nalini Nagnath Uphalkar v. Nagnath Mahadev Uphalkar,

Citation- 2022 LiveLaw (Bom) 409

The Bombay High Court held that a wife making unsubstantiated allegations against her husband in a court labelling him as an 'alcoholic' and a 'womanizer' amounts to cruelty.

A division bench of Justice Nitin Jamdar and Justice Sharmila U Deshmukh dismissed an appeal filed by the appellant/wife challenging family court's decision to grant divorce decree to her husband observing that no evidence was produced by the wife to prove her allegations.

Married Woman Being Asked To Do Household Work Does Not Mean She Is Treated Like Maid Servant: Bombay High Court

Case Title: Sarang Diwakar Amle & Ors. v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 415

The Bombay High Court held that a married woman being asked to do household work does not mean that she is being treated like a maid servant. The court also observed that without description of alleged acts of the husband and in-laws, it cannot be determined whether they committed cruelty towards the wife.

"Mere use of the word harassment "mentally and physically" are not sufficient to attract ingredients of Section 498-A of IPC", a division bench of Justice Vibha Kankanwadi and Justice Rajesh S. Patil of the Aurangabad bench observed while dealing with an application under section 482 of Cr.P.C. for quashing of FIR filed by a woman against her husband and his family members.

Juvenile Being Tried As Adult No Bar To Grant Of Bail U/S 12 JJ Act: Bombay High Court

Case Title: Shubham @ Bablu Milind Suryavanshi v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 416

The Bombay High Court reiterated that a juvenile in conflict with law despite being tried as an adult would be entitled to special parameters for grant of bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Merely because, he is directed to be tried as an adult, he cannot be denied the benefit of Section 12, Justice Bharati Dangre said in her order granting bail to a 17-year-old murder accused.

Death Is The Greatest Equalizer, State Bound To Provide Reasonable Facilities For Burial & Cremation, There Must Be No Discrimination: Bombay HC

Case Title: Muzaffar Manzoor Kadri v. State Govt. of Goa and Ors.

Citation: 2022 LiveLaw (Bom) 420

The Bombay High Court directed the Public Works Department, the Margao Municipal Council and Goa State Urban Development Agency (GSUDA) to construct a burial ground for the Muslim community in Sonsodo locality, within 6 months.

This order was passed in a PIL highlighting that the land was acquired for the purpose of constructing the kabristan 11 years ago but there has been no progress in the construction and development of the kabristan since then.

A division bench of Justice Mahesh Sonak and Justice Bharat Deshpande of the Goa bench observed that the authorities have a duty to provide cemeteries, burial grounds, electrical crematorium etc. to the public.

Police Station Not a Prohibited Place Under Official Secrets Act: Bombay High Court Quashes FIR Against Man Booked For Shooting Video Inside PS

Case Title: Ravindra Shitalrao Upadyay v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 421

The Bombay High Court recently said that the definition of 'prohibited place' in the Official Secrets Act, 1923 is exhaustive but police station has not been included as one of the establishments or places under it.

Justice Manish Pitale and Justice Valmiki Menezes of the Nagpur bench made the observation while quashing an FIR in July this year against a man, who was booked under Section 3 of the Act for recording a video inside a police station in 2018.

Child Raised In Orphanage Cannot Be Declared As "Orphan" Under JJ Act If Biological Parents Are Alive: Bombay High Court

Case Title: The Nest India Foundation v. State of Maharashtra & Ors.

Citation: 2022 LiveLaw (Bom) 423

The Bombay High Court held that children though brought up in an orphanage cannot be declared as 'orphans' as defined under Section 2(42) of the Juvenile Justice Care and Act, 2015 if their biological parents are alive.

The bench of Justices SV Gangapurwala & RN Laddha however asked the Committee under the JJ Act to decide if such children, the petitioners, can be declared as 'abandoned children' under section 2(1) of the Act.

[NDPS Act] Combined Weight Of LSD & Blotter Relevant To Determine Small Or Commercial Quantity Contraband: Bombay High Court

Case Title: H. S. Arun Kumar v. State of Goa

Citation: 2022 LiveLaw (Bom) 432

The Bombay High Court at Goa held that the combined weight of Lysergic Acid Diethylamide (LSD) drug and the blotting paper carrying it is necessary to ascertain if the seized drug is of a small or commercial quantity and impose punishment under the NDPS Act accordingly.

The court passed the order on a reference by a single judge on whether LSD alone or the combined weight of LSD and blotting paper would be used to determine the weight the seized drug.

A division bench of Justices MS Sonak and Bharat Deshpande held that the blotter paper facilitates LSD's consumption as a whole. Therefore, it is as a preparation, mixture, or neutral substance within the meaning of the NDPS Act.

Civil Court Order To Prevail Over Findings Recorded By Authorities Under Maharashtra Money-Lending (Regulation) Act: Bombay High Court

Case Title: Bhanudas S/o Ramchandra Shinde v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 443

The Bombay High Court held that the judgement of the Civil Court in a prior suit will prevail over an order passed under Section 18(2) of the Money Lending (Regulation) Act, 2014 for the same cause of action.

Justice Sandeep V. Marne of the Aurangabad bench set aside the order passed by the District Registrar (Money Lending) and appellate authority which had declared a transaction between the parties to be a mortgage despite the Civil Court's prior declaration that it was an absolute sale.

State Govt's Power To Refer To Labour Court, any Disputes Regarding Newspaper Employee's Dues Cannot Be Delegated: Bombay High Court

Case Title: All India Reporter Private Limited v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 448

The Bombay High Court held that the state government cannot delegate its power to refer a question related to amount due to any newspaper employee to the Labour Court under Section 17(2) of the Working Journalists And Other Newspaper Employees (Conditions Of Service) And Miscellaneous Provisions Act, 1955 (Act).

Justice A. S. Chandurkar and Justice M. W. Chandwani of the Nagpur bench in a writ petition filed by law journal All India Reporter struck down a notification of the state government delegating the power to make reference to the Labour Court to the Additional Commissioner of Labour.

[MV Act] 'Form 16' Issued By Employer Reliable Piece Of Evidence To Determine Real Income Of Deceased For Compensation: Bombay High Court

Case Title: Anjali Vilas Deshpande v. Prabha Rajendra Gupta

Citation: 2022 LiveLaw (Bom) 458

The Bombay High Court held that Form 16 issued by an employer for income tax purposes, showing a higher remuneration than a salary slip, is a reliable piece of evidence for compensation under the Motor Vehicles Act,.

"We find that Form 16 is a reliable piece of evidence to determine the real income of the deceased. The reason is that Form 16 has been signed and generated by the employer of the deceased," a division bench of Justices Gautam Patel and Gauri Godse observed.

Recording Of Reasons For Denying Furlough Not An Empty Formality: Bombay HC Directs Prison Dept To Pay Litigation Costs In Blast Convict's Case

Case Title: Mohd. Sagir Bashir Chauhan v. The Deputy Inspector General of Prisons, Eastern Region, Nagpur

Citation: 2022 LiveLaw (Bom) 468

The Bombay High Court directed the Superintendent of Amravati Central Prison to pay the legal expenses or the 'cost of a petition' for denying furlough to a convict on "stereotyped reasons".

"The requirement of recording of reasons under Rule 8(7) of the Prisons Rules, 1959 is not an empty formality and certainly, is not a license for passing an order recording same old reasons almost like a cliché. It is a well settled principle of law that whenever there is discretion, it comes with responsibility to exercise it reasonably, fairly and in a manner as to fulfill the object of legislation under which it is given," the court observed.

The bench of Justices S.B Shukre and M.W Chandwani added that the discretion conferred upon the sanctioning Authority is not unguided and uncanalized.

Bombay HC Restrains State From Issuing Appointment Orders To Engineers Selected Under EWS Quota Until Final Decision On SEBC Reservation

Case Title: Amarnath Madhukar Havshett v. Maharashtra Public Service Commission and Ors.

Citation: 2022 LiveLaw (Bom) 478

The Bombay High Court has restrained the Maharashtra Public Services Commission (MPSC) from issuing appointment letters for engineers under the reserved Economically Weaker Section Category (EWS) till the issue of diverting SEBC candidates to EWS is settled.

The bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja noted that a petition challenging MPSC's decision to consider candidates from the Socially and Educationally Backward Classes (SEBC) for EWS posts after the SEBC Act was struck down by the Supreme Court is pending final hearing.

Therefore, the court stayed the appointment process to 111 EWS posts and directed the MAT to dispose of the matter by January 2023.

Legal Proposition That Partnership Is Not Heritable Status And Depends On Contract Prevails Over Govt Circulars: Bombay High Court

Case Title: Shri Arunkumar s/o Dwarklal Jaiswal v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 479

The Bombay High Court recently held that the legal position, that partnership depends on contract and is not a matter of heritable status would prevail over government circulars.

A division bench of Justice A. S. Chandurkar and Justice Urmila Joshi Phalke of the Nagpur bench in a letters patent appeal set aside a Single Judge order which allowed the wife of a deceased partner to be added in the firm's wine licence despite contrary provisions in the partnership deed. The Single Judge had relied on a government circular of 1994 in the decision.

Passenger Having Valid Ticket But Boarded Wrong Train Entitled To Accident Compensation Under Railways Act: Bombay HC

Case Title: Union of India v. Reena D/o Kishor Kharwade

Citation: 2022 LiveLaw (Bom) 482

The Bombay High Court recently held that a person carrying a ticket for a different train/journey than the one he actually undertakes would also be "passenger" under Railways Act, 1989 and will be entitled to compensation in case of an accident.

"Nowhere the above said two provisions (sections 2(29) and 124-A) which define "passenger" stipulate that to be a passenger one has to hold a ticket only for any particular train on which the person is to travel. The Section merely requires a valid ticket for travelling by train carrying passengers on any date", the court observed.

Justice Abhay Ahuja of the Nagpur bench upheld the compensation granted by the Railway Claims Tribunal in a case where the victims boarded the wrong train and fell down while trying to alight from it.

Written Exams For Police Constable Post Shall Not Be Conducted If Recruitment Rules For Transgender Persons Not Framed Within Three Months: Bombay High Court

Case Title: State of Maharashtra v. Arya Pujari

Citation: 2022 LiveLaw (Bom) 487

The Bombay High Court directed the state to frame rules according to the Central Government's Transgender Persons (Protection of Rights) Rules, 2020 and complete the physical tests of all candidates except transgender candidates within two and a half months, i.e., by February 28, 2023. Physical examination of transgender candidates will be done in the last fortnight, said the court. Till the rules are framed and the physical tests are conducted, the state shall not proceed with the written tests for all candidates, the court held.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja was hearing state's plea against Maharashtra Administrative Tribunal's direction to include transgender persons in recruitment for all posts of the Home Department.

Branding A Child As "Illegitimate" In Itself Amounts To Harassment: Bombay High Court

Case Title: Sudeep Suhas Kulkarni and Anr. v. Abbas Bahadur Dhanani

Citation: 2022 LiveLaw (Bom) 491

The Bombay High Court recently granted guardianship of a minor to her biological parents reiterating that welfare of the minor should be the paramount factor and it cannot be subordinated to the personal law of the minor.

Justice Manish Pitale observed that the parents’ plea cannot be rejected merely because Muslim law indicates that a child born outside marriage has no right to inheritance or descent.

Commenting on the usage of the term ‘illegitimate’ for such children, the court said, “for no fault of the child, it is branded illegitimate for the world at large, which in itself amounts to harassment to the child.”

Enforcement Of Lok Adalat Award Does Not Require Payment Of Stamp Duty/ Registration: Bombay High Court

Case Title: Shrichand @ Chandanmal Sugnamal Panjwani v. Ahamed Ismayil Valodia and Ors.

Citation: 2022 LiveLaw (Bom) 493

The Bombay High Court recently held that a Lok Adalat award, being equivalent to a civil court decree, can be enforced via an execution suit and does not require registration and payment of stamp duty for enforcement.

Justice Sandeep V. Marne stated that Lok Adalat awards are fully executable. There is no question of a specific performance suit for the settlement which the Lok Adalat has decreed, the court held.

A Person Cannot Be Subjected To Rigors Of Externment By Relying On Same Cases, Violative Of Article 19: Bombay High Court

Case Title: Kiran Dattatraya Shedke v. The State Of Maharashtra And Ors

Citation: 2022 LiveLaw (Bom) 494

The Bombay High Court has said that subjecting a person to externment by relying upon the same cases, which were also subject matter of the previous orders of externment, is violative of Article 19 of Constitution.

Quashing a third order of externment passed by the Deputy Commissioner of Police, Nashik, Justice Prakash Naik observed that the externing authority relied on same cases that were used to extern the appellant previously. The powers of externment are exercised in most arbitrary manner, said the court.

[Portuguese CPC] Bombay HC Directs Cancellation Of Goan Couple's Marriage Registration Based On Foreign Decree

Case Title: Delfina Gonsalves v. Felix Gonsalves

Citation: 2022 LiveLaw (Bom) 502

The Bombay High Court at Goa relied on a divorce decree passed by the Family Court sitting at the Court and Tribunal Service Centre in England to cancel the marriage registration of a Goan couple.

Justice G. S. Kulkarni noted that the grounds on which the decree was passed in England are also grounds recognised and acceptable under the laws in India, including under the PCCP.

The court allowed their petition under Article 1101 of the Portuguese Code of Civil Procedure, 1939 and directed cancellation of their names in the marriage registration book of 2004.

[NI Act] Complainant Putting Date On Cheque Without Drawer's Consent Renders Instrument Void: Bombay High Court

Case title: M/s. Pinak Bharat and Company v. Anil Ramrao Naik

Citation: 2022 LiveLaw (Bom) 505

The Bombay High Court held that subsequently adding dates for payment without the payer's consent renders the negotiable instrument void, while refusing relief in a cheque bouncing case.

"No doubt cheque is negotiable instrument which is transferable and negotiable, presumption under Section 138 of the Negotiable Instrument Act can be drawn only when the pre-conditions are satisfied. The complainant unilaterally has put in dates on the cheques without the authority of the accused and even by not informing him. So, it amounts to material alterations. If it is so such negotiable instrument becomes void", Justice S. M. Modak held in his judgment.

Social Media Important Pillar Of Democracy As Long As It Is Not Misused: Bombay High Court

Case Title: Suraj s/o Arvind Thakare v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 506

The Nagpur bench of the Bombay High Court cautioned against the misuse of social media, while acknowledging that it has become a powerful medium for exchange of views.

"One has to be careful when one expresses one's view or makes comments that the words used are not obscene or indignified or demeaning. In other words, a balance has to be struck between the need for healthy use of social media and the need for preventing misuse of social media", a division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani observed.

The court said that India's democracy has progressed so much and tolerance to fair criticism, dissent, and satirical comments has become its hallmark. Commenting on the role of social media in democracy, the court said that it is only a pillar to democracy till it is not misused by posting content which constitutes an offence or falls under reasonable restrictions on free speech.

'No Investigating Officer Can Flout Procedural Requirements, Proclaim To Be Law Unto Himself': Bombay High Court Slams Cop For House Seizure

Case Title: Vikram S/o Madhukar Labhe and Ors. v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 516

Bombay High Court severely reprimanded a police officer for seizing a man's house under section 102 of the Cr.P.C. despite seizure of immovable property not being allowed under the said provision.

The division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur said, "In the name of taking action against criminals, outlaws and offenders in serious crimes, no Investigating Officer can flout the procedural requirements, can breach the limits of law, can openly disrespect the law declared by the highest Court of the land and thus, proclaim himself to be the law unto himself".

The court said that IO’s request to make changes in the record of a registrar is an interference with the functioning of the Sub Registrar. The intimation letter dated December 12, 2022 amounts to usurpation of power of Civil Court and also misuse of powers by the IO.

Casual Absence Of Defendant On Insignificant Date Would Not Make Court Order 'Ex-Parte': Bombay High Court

Case Title: Jyoti w/o Mahesh Agrawal v. Deputy Chief Engineer (Construction), Central Railway

Citation: 2022 LiveLaw (Bom) 517

The Bombay High Court held that the consequence of the absence of a defendant has to be considered and a casual absence on any intermediate date would not make the decision of the court 'ex-parte'.

Justice Vinay Joshi of the Nagpur bench added that voluntarily not cross examining the party and not advancing argument does not mean the order was ex-parte.

Vehicle Owner Also Liable To Pay For Maintenance, Treatment Of Animals Recovered From His Truck: Bombay High Court

Case Title: Altaf Babru Shaikh v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 521

The Bombay High Court upheld an order directing the owner of a vehicle to pay towards maintenance and health inspection of the animals seized from it under the Prevention of Cruelty to Animals Act.

Justice Prakash Naik in the judgement noted that the Sessions Judge, while upholding the magistrate's order, has made reference to Rule 5 of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 which provides for joint and several liability for the cost of transport, treatment and care of animals in case of offence relating to transport of animals, by the vehicle owner, consignor, consignee, transporter, agents and any other parties involved.

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