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Bombay High Court Monthly Digest: August 2023
Amisha Shrivastava
2 Sep 2023 7:45 AM GMT
Nominal Index [Citation 351 – 399]Latif Yusuf Manikkoth v. Board of Directors of the Bank of Baroda and Ors. 2023 LiveLaw (Bom) 351Hanuman S/o Dattarao Karkar and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 352Chief Executive Officer, Zilla Parishad, Ahmednagar and Anr. v. Suraiyya Rafik Khalifa and Ors. 2023 LiveLaw (Bom) 353The Goa Foundation v. State of Goa and Ors. 2023 LiveLaw...
Nominal Index [Citation 351 – 399]
Latif Yusuf Manikkoth v. Board of Directors of the Bank of Baroda and Ors. 2023 LiveLaw (Bom) 351
Hanuman S/o Dattarao Karkar and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 352
Chief Executive Officer, Zilla Parishad, Ahmednagar and Anr. v. Suraiyya Rafik Khalifa and Ors. 2023 LiveLaw (Bom) 353
The Goa Foundation v. State of Goa and Ors. 2023 LiveLaw (Bom) 354
Rubeena Shaheen v. Haj Committee of India and Ors. 2023 LiveLaw (Bom) 355
Prameya Welfare Foundation v. Municipal Corporation of Greater Mumbai & Anr. 2023 LiveLaw (Bom) 356
Hanumant Ashok Shinde v. State of Maharashtra 2023 LiveLaw (Bom) 357
Madhani Prakash Engineers JV v. UoI 2023 LiveLaw (Bom) 358
Jayshree @ Pushpa v. Satyendra s/o Shivram Jindam 2023 LiveLaw (Bom) 359
Khanna Rayon Industries Pvt. Ltd. v. Swastik Associates & Ors 2023 LiveLaw (Bom) 360
Bablu Jumman Shaikh v. State of Maharashtra 2023 LiveLaw (Bom) 361
JEM Exporter v. Union of India 2023 LiveLaw (Bom) 362
Coventry Estates Pvt. Ltd. v. Joint Commissioner CGST and Central Excise 2023 LiveLaw (Bom) 363
Vinayak Ukharam Chavhan v. Divisional Joint Registrar and Ors. 2023 LiveLaw (Bom) 364
Marathwada Legal and General Education Society, Aurangabad v. Dr. Babasaheb Ambedkar Marathwada University, Aurangabad and Ors. 2023 LiveLaw (Bom) 365
Shiney Suraj Ahuja v. State of Maha & Ors 2023 LiveLaw (Bom) 366
Ruju R. Thakker v. State of Maharashtra 2023 LiveLaw (Bom) 367
Mahaveer Realities & Ors. vs Shirish J. Shah 2023 LiveLaw (Bom) 368
Cummins India Limited v. ACIT 2023 LiveLaw (Bom) 369
ABC v. XYZ 2023 LiveLaw (Bom) 370
Kalpataru Power Transmission Ltd. v. State of Maharashtra 2023 LiveLaw (Bom) 371
Sushila Gordhandas Parikh v. State of Maharashtra 2023 LiveLaw (Bom) 372
Olga Rosnina v. Foreigners Regional Registration Office, Goa and Ors. 2023 LiveLaw (Bom) 373
Suvarna Ratnakar Taras v. Mangalprabhat Lodha 2023 LiveLaw (Bom) 374
ABC v. XYZ 2023 LiveLaw (Bom) 375
Govind Poslya Gavit v. The Competent Authority 2023 LiveLaw (Bom) 376
Abhay Shamsundar Kurundkar v. State of Maharashtra 2023 LiveLaw (Bom) 377
Geeta Ramanugrah Shastri v. Bar Council of Maharashtra and Goa and Ors. 2023 LiveLaw (Bom) 378
Khairunisa Sheikh Chand v. Chandrashekhar Daulatrao Chincholkar & Ors. 2023 LiveLaw (Bom) 379
Asha Shivaji More v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 380
ABC v. XYZ 2023 LiveLaw (Bom) 381
Prakash Madhukarrao Desai v. Dattatraya Sheshrao Desai 2023 LiveLaw (Bom) 382
Archbishop Patriarch Of Goa Rev. Fr. Filipe Neri Ferrao v. State Information Commission 2023 LiveLaw (Bom) 383
Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 384
Rahul S/o Sahdev Lokhande and Anr. v. State of Maharashtra 2023 LiveLaw (Bom) 385
Sudhir Dhar and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 386
Ranjeet Sampatrao Raskar & Ors. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 387
Sangita Vilas Kiwade v. State of Maharashtra 2023 LiveLaw (Bom) 388
Ashim Kumar Bagchi v. Balaji Telefilms Limited & Ors. 2023 LiveLaw (Bom) 389
State of Maharashtra v. Madhuri Badrinarayan Gote 2023 LiveLaw (Bom) 390
Jayendra Narandas Bhatia v. State of Maharashtra 2023 LiveLaw (Bom) 391
Vijay Choudhary v. state of Maharashtra and Ors. 2023 LiveLaw (Bom) 392
Astec LifeSciences Ltd. v. The Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 393
UPL Limited v. UOI 2023 LiveLaw (Bom) 394
Mohan Yeshwant Padawe & Ors v. State Of Maharashtra & Ors 2023 LiveLaw (Bom) 395
Kumar Kunal v. State of Maharashtra 2023 LiveLaw (Bom) 396
Heena Afrin Huzaifa Shaikh v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 397
Ankiti Bose v. Mahesh Murthy and Anr 2023 LiveLaw (Bom) 398
Sandeep Pandurang Patil v. State of Maharashtra 2023 LiveLaw (Bom) 399
Reports/Judgments
Case Title: Latif Yusuf Manikkoth v. Board of Directors of the Bank of Baroda and Ors.
Citation: 2023 LiveLaw (Bom) 351
The Bombay High Court held that a secured creditor can initiate proceedings under the SARFAESI Act against the guarantor in case of loan default even when there is a moratorium on action against borrower under section 14 of the Insolvency and Bankruptcy Code (IBC).
A division bench of Justices GS Kulkarni and Rajesh S Patil dismissed a guarantor’s writ petition seeking to restrain a bank from acting against it to recover a loan on the ground that National Company Law Tribunal (NCLT) has issued a moratorium on action against the borrower.
“NCLT has declared a moratorium against the action being taken against the Borrower, including the SARFAESI proceedings. However, the Secured Asset is owned by the Petitioner/Guarantor. Therefore, according to us, as such, the Respondent No.3 /Bank can proceed against the Mortgaged Property of Personal Guarantor as per S.13(11) of the SARFAESI…the bank has not violated the moratorium as ordered by the NCLT, in initiating SARFAESI Proceedings against Petitioner / Guarantor”, the court held.
Case Title: Hanuman S/o Dattarao Karkar and Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 352
Bombay High Court held that the plea of not being armed would not absolve an accused from liability under Section 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) of the IPC.
A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad dismissed an appeal filed by five persons were convicted for offences punishable under Sections 144 (joining unlawful assembly armed with deadly weapon), 148 (rioting, armed with deadly weapon),and 302 (punishment for murder) read with 149 of the IPC.
“Once the case of a person falls within the ingredients of Section 149 IPC, the question that he did nothing on his own, would be immaterial, as everybody is considered to be aware of the probable and natural outcome of the acts with which they have formed unlawful assembly. Mere plea ‘not being armed’ would not absolve a person from liability. Once their gathering has been demonstrated to have indulged in unlawful act, sharing of common intention comes into play”, the court held.
Case Title: Chief Executive Officer, Zilla Parishad, Ahmednagar and Anr. v. Suraiyya Rafik Khalifa and Ors.
Citation: 2023 LiveLaw (Bom) 353
The Bombay High Court held that the principal employer's liability in case of accidental death/injury of contractor’s employee is limited to the compensation amount under Section 12 of the Employee Compensation Act and does not include penalty and interest for default.
“...for failure to comply with statutory obligation on the part of the employer he can be saddled with additional liability to pay interest and penalty, however the principal employer, who is made liable to pay compensation by extended arm under Section 12 of the Employee’s Compensation Act cannot be mulcted with the liability to pay the interest and penalty”, the court observed.
Justice SG Chapalgaonkar of the Aurangabad bench, while upholding over 6 Lakhs compensation granted to kin of driver who died of cardiac arrest while on duty, observed that driving tanker to deliver water to villages is a mentally and physically stressful job.
Case Title: The Goa Foundation v. State of Goa and Ors.
Citation: 2023 LiveLaw (Bom) 354
The Bombay High Court held that there is no legal impediment on the Goa government to declare the Mhadei Wildlife Sanctuary as a tiger reserve even if the final notification under the Wildlife (Protection) Act, 1972 (WLPA) has not been issued declaring some areas within Mhadei as sanctuary.
A division bench of Justice MS Sonak and Justice Bharat Deshpande while directing the State government to notify the Mhadei Wildlife Sanctuary as a tiger reserve within three months clarified that issuing final notification under Section 26-A (declaration of area as sanctuary) is not a prerequisite for declaring a protected area as a tiger reserve.
Bombay High Court Asks Haj Committee To Announce Fares Before Pilgrims Choose Embarkation Point
Case Title: Rubeena Shaheen v. Haj Committee of India and Ors.
Citation: 2023 LiveLaw (Bom) 355
The Bombay High Court asked that the Haj Committee of India (HCoI) to implement its guidelines and announce the fares in advance to enable the pilgrims to choose the nearest economical embarkation point (EP), in a batch of writ petitions filed by 180 Haj pilgrims concerning fares for Aurangabad EP for the Haj Pilgrimage, 2023.
A division bench of Justices Ravindra V Ghuge and YG Khobragade sitting at Aurangabad noted that the EP charges for Mumbai was Rs. 53,043/- while for Aurangabad, it was 1,40,938/- for Haj Pilgrimage-2023.
The court however, refused to order refund to Haj pilgrims who chose Aurangabad as their EP and couldn’t change it after rates were announced holding that it did not have the expertise to decide whether the fare for Aurangabad EP was “exorbitantly high”.
Case Title: Prameya Welfare Foundation v. Municipal Corporation of Greater Mumbai & Anr.
Citation: 2023 LiveLaw (Bom) 356
The Bombay High Court asked the Municipal Corporation of Greater Mumbai (MCGM) to consider drafting a policy wherein Ganesh Utsav or other festival organisers found violating permission norms are denied permission for future events.
The PIL filed by NGO Prameya Foundation alleged that pandal organizers violate norms by digging up roads to erect the pandal and leave the roads in a sorry condition after the festival, causing inconvenience to organizers.
Therefore, it sought a direction to MCGM to impose an additional deterrent on organizers by denying future permission and levying hefty fines for digging public roads.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor disposed of the PIL with a direction to the MCGM to consider enacting a policy based on the prayers in the petition by treating the petition as a representation.
Case Title: Hanumant Ashok Shinde v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 357
The Bombay High Court granted bail to a man accused of murdering his girlfriend and chopping her body, after noting that the police didn’t collect DNA samples of the woman’s heirs to identify the recovered body parts.
Justice Amit Borkar observed that the identity of the recovered body parts, which were completely decomposed, needs to be determined during the trial and prima facie, there isn’t sufficient material to warrant further detention of the accused.
Case Title: Madhani Prakash Engineers JV v. UoI
Citation: 2023 LiveLaw (Bom) 358
The Bombay High Court has quashed the CBDT’s order rejecting the assessee’s application for condonation of the 43-day delay in filing the return of income (ITR).
"Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. The authorities fail to understand that when the delay is condoned, the highest that can happen is that the cause will be decided on merits after hearing the parties. In our view, the approach of the authority should be justice-oriented so as to advance the cause of justice. If a refund is legitimately due to the applicant, the mere delay should not defeat the claim for refund," the bench of Justice K.R. Shriram and Justice Firdosh P. Pooniwalla observed.
HAMA | Daughter Cannot Continue Mother's Maintenance Claim After Her Death: Bombay High Court
Case Title: Jayshree @ Pushpa v. Satyendra s/o Shivram Jindam
Citation: 2023 LiveLaw (Bom) 359
The Bombay High Court held that daughter cannot continue her mother’s claim of maintenance from husband after her death, as the right to claim maintenance under the Hindu Adoption and Maintenance Act (HAMA) is an individual right against another person.
A division bench of Justice Ravindra V Ghuge and Justice YG Khobragade sitting at Aurangabad refused to allow married daughter of a deceased woman to continue claim for enhancement of maintenance awarded to her mother.
“right to claim maintenance under the personal laws viz., Hindu Adoption and Maintenance Act, Muslim Law, Christen Law is in the personal nature. It is an individual privilege of a person who is governed under the Personal Law…right of maintenance of wife against her husband is in personam and not in rem, therefore, the right to sue does not survive in favour of the applicant, who is married daughter of the deceased Appellant and Respondent”, the court held.
Case Title: Khanna Rayon Industries Pvt. Ltd. v. Swastik Associates & Ors
Citation: 2023 LiveLaw (Bom) 360
The Bombay High Court held that a plaintiff in a commercial suit seeking to amend his plaint to place documents on record must show reasonable cause for not disclosing the documents in the plaint at the time of filing of the suit, if they were in his power and possession.
Justice Manish Pitale held that the provisions of the Commercial Courts Act must operate rigorously to commercial suits to achieve its objective of speedy disposal of high-value commercial disputes.
“...the only provision under which the Applicant can place on record a document which was in its power, possession, control or custody at the time of filing of the suit but was not filed along with the plaint, is Order XI Rule 1(5) of the CPC, as applicable to the commercial courts. The said provision mandatorily requires the Applicant/Plaintiff to establish a reasonable cause for non-disclosure of the document along with the plaint”, the court held.
The court rejected the proposal to place additional documents on record in a commercial suit and only allowed a partial amendment as per the applicant's proposal.
Case Title: Bablu Jumman Shaikh v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 361
The Bombay High Court granted anticipatory bail to a lawyer accused of raping his client, observing that the relationship appeared consensual despite the accused being a married man.
While the victim claimed she had no idea the lawyer she was consulting and was in love with was married, the court noted that the woman was in contact with the man despite knowledge of his marriage.
Accordingly, Justice Anuja Pabhudessai granted him anticipatory bail on an application under section 438 of the CrPC.
Case Title: JEM Exporter v. Union of India
Citation: 2023 LiveLaw (Bom) 362
The Bombay High Court held that if the appeal is defective for non-production of a certified copy, failure to deposit, or incorrect signatures, no order on merits can be passed. The appellate authority erred in law in passing an order on the merits.
The bench of Justice G. S. Kulkarni and Justice Jitendra Jain has observed that the Commissioner (Appeal), having not given an opportunity to the Petitioner to cure the procedural defect, was not justified in rejecting the appeal. It would be contrary to the principle of natural justice.
"In our view, justice cannot be denied for failure to comply with the procedure without giving an opportunity to the Appellant to rectify the procedural defects. In our view, the Commissioner (Appeal) ought to have issued a defect memo calling upon the Petitioner to produce the proof of pre-deposit of tax as per section 107(6) of the CGST Act, 2017, for filing the certified copy of the order and for authentication of the appeal memo as per rule 26(2)(a)," the bench observed.
Case Title: Coventry Estates Pvt. Ltd. v. Joint Commissioner CGST and Central Excise
Citation: 2023 LiveLaw (Bom) 363
The Bombay High Court has held that the belated hearing of the show cause notice would amount to a violation of the principles of natural justice.
"Merely for the reason that there was shifting of the Commissionerates and reorganisation of its office, there would be no reason to abdicate and/or not comply with the obligations under the Act to promptly and/or expeditiously adjudicate the show cause notice, to be taken to its logical conclusion," the bench of Justice G.S. Kulkarni and Justice Jitendra Jain observed.
The petitioner/assessee was engaged in the construction of a residential complex. The petitioner is a construction contractor undertaking work in the SEZ. It received a refundable deposit.
Case Title: Vinayak Ukharam Chavhan v. Divisional Joint Registrar and Ors.
Citation: 2023 LiveLaw (Bom) 364
The Bombay High Court held that Registrar (Co-operative Societies) cannot dissolve the board of directors of a society on account of half of the members of the committee resigning before the society has accepted the resignations.
Justice Kishore C Sant of the Aurangabad bench in a writ petition quashed Registrar’s order dissolving the board of directors of a cooperative society whose six out of 12 members resigned at once, observing that the resignations hadn’t been accepted by the society.
Case Title: Marathwada Legal and General Education Society, Aurangabad v. Dr. Babasaheb Ambedkar Marathwada University, Aurangabad and Ors.
Citation: 2023 LiveLaw (Bom) 365
The Bombay High Court reiterated that no reservation mandated by the Maharashtra Educational Institutions (Reservation in Teachers’ Cadre) Act, 2021 (Act of 2021) is applicable to the post of principal in colleges.
A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme sitting at Aurangabad held that a Government Resolution dated September 23, 2016, excluding the post of principal from reservation prevails over the Maharashtra Public Universities Act, 2016, that provides for reservation for teachers.
Case Title: Shiney Suraj Ahuja v. State of Maha & others
Citation: 2023 LiveLaw (Bom) 366
The Bombay High Court directed the Passport Authority of India not to withhold the renewal of actor and rape convict Shiney Ahuja’s passport on grounds of his pending appeal in High Court.
Justice Amit Borkar observed, “Considering the fact that during pendency of present appeal passport was renewed on more than six occasions and there is no violation of bail conditions, the applicant has made out a case for direction to the passport authority to renew the applicant’s passport, provided he is otherwise liable for renewal of passport for ten years.”
Case Title: Ruju R. Thakker v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 367
The Bombay High Court summoned six Municipal Commissioners of the Mumbai Metropolitan Region to explain the poor condition of roads and open manholes.
The Municipal Commissioners include BMC, Kalyan Dombivali Municipal Corporation, Mira Bhayander Municipal Corporation, Vasai Virar Municipal Corporation, Navi Mumbai Municipal Corporation and Thane Municipal Corporation. The secretary of MMRDA has also been asked to remain present.
A division bench comprising Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor was livid after learning about frequent accidents even five years after High Court's speaking order on the issue.
The court was hearing a contempt petition filed by Advocate Ruju Thakkar on the dismal condition of roads.
Case Title: Mahaveer Realities & Ors. vs Shirish J. Shah
Citation: 2023 LiveLaw (Bom) 368
The Bombay High Court ruled that even though the parties had participated in the arbitral proceedings continued by the Arbitrator after his mandate had expired, the same cannot amount to a waiver under Section 4 of the Arbitration and Conciliation Act, 1996 (A&C Act). The court remarked that Section 29A of the A&C Act that provides the time limit for passing the award, is a non-derogable provision and thus, Section 4 of the Act has no application.
The bench of Justice R.I. Chagla made the observation in a petition for extension of time limit for passing of the award filed by the petitioner-claimant, Mahaveer Realities. The court, while appointing a substitute arbitrator, said that the arbitral proceedings would continue from the expiry of the mandate of the erstwhile Arbitrator. It added that proceedings carried on by the erstwhile Arbitrator after the expiry of its mandate, shall be disregarded by the substitute Arbitrator.
The bench dismissed the claim that since the parties knowingly proceeded before the Arbitrator after the expiry of its mandate, they were deemed to have waived their right to object to the continuation of proceedings after expiry of the mandate.
Case Title: Cummins India Limited v. ACIT
Citation: 2023 LiveLaw (Bom) 369
The Bombay High Court held that the transaction of payment of royalty for the use of technology is inextricably linked with manufacturing activity and should be aggregated with other international transactions in the manufacturing segment for the purposes of benchmarking it.
The bench of Justice K.R. Shriram and Justice Firdosh P. Pooniwalla has observed that the Tribunal was totally incorrect in saying that accepting the aggregation of royalty payments with other international transactions under the manufacturing segment for the Assessment Year 2006-2007 was in the context of an earlier agreement under which the royalty was paid.
Citation: 2023 LiveLaw (Bom) 370
The Bombay High Court directed its Registry to place before an appropriate bench a clutch of petitions to decide a common legal issue – whether family courts are competent to hear domestic violence cases.
“A common question involved is whether the Family Court established under the Family Courts Act, 1984 is competent to conduct the proceedings and give the relief under the Protection of Women from Domestic Violence Act, 2005 and whether the proceedings under the DV Act can be transferred to the Family Court,” the court observed.
Justice Sarang Kotwal said this question has arisen in a number of pleas pending before his bench and there are conflicting decisions of various single judges on the issue.
Bombay High Court Quashes Review Order Which Disallowed Deductions, Being Contra To Natural Justice
Case Title: Kalpataru Power Transmission Ltd. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 371
The Bombay High Court quashed the review order against Kalpataru Power Transmission, disallowing works-contract deductions beyond Show Cause Notice (SCN).
The bench of Justice G. S. Kulkarni and Justice Jitendra Jain has observed that the review order is in patent breach of the principles of natural justice and that, without jurisdiction, the petition deserved to be entertained.
Bombay High Court Cancels NOC Of Builder Over Default In Payment Of Transit Rent
Case Title: Sushila Gordhandas Parikh v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 372
The Bombay High Court on Friday cancelled the No Objection Certificate (NOC) granted to Parekh Constructions LLP, developer of a redevelopment project in South Mumbai due to its default on payment of transit rent to the residents of the demolished building.
A division bench of Justice GS Patel and Justice Neela Gokhale ordered Parekh Constructions, Parekh Constructions LLP, and Nishcon Realty Pvt Ltd to entirely vacate the site, including removing personnel, security guards, equipment, and machinery, by Monday, August 14, 2023.
The court directed Maharashtra Housing and Area Development Authority (MHADA) to issue a formal letter for cancellation of NOC without giving any opportunity of hearing to the developers. The court added that it is open for MHADA to proceed in accordance with law for the appointment of another developer.
Case Title: Olga Rosnina v. Foreigners Regional Registration Office, Goa and Ors.
Citation: 2023 LiveLaw (Bom) 373
The Bombay High Court at Goa set aside a deportation order against a Russian national on grounds of breach of VISA condition observing that it was not a case of threat to internal security of India and authorities should have at least sought a clarification from the woman before ordering her deportation.
A division bench of Justice MS Sonak and Justice Bharat P Deshpande observed that while the Central government has wide powers of deportation, it cannot ignore principles of natural justice and fair play while exercising its powers.
Case Title: Suvarna Ratnakar Taras v. Mangalprabhat Lodha
Citation: 2023 LiveLaw (Bom) 374
A judgement pronounced in open court but signed by the judge after he was transferred is a valid judgement, the Bombay High Court has held.
Justice Sharmila Deshmukh relied on several Supreme Court judgements which held that once a judgement was delivered or pronounced in open court, the manner of delivery couldn’t be faulted.
The writ petition filed by the petitioner in a partition suit challenged an order setting aside the status quo in her favour on the ground that the judge signed the order after he was transferred. The defendants were Mangal Prabhat Lodha and another.
“Although I am not inclined to accept the submission of the learned counsel for Petitioner that the judgment was signed after transfer of charge in view of the roznama on record and date below the signature, the aforesaid decisions are relied upon to drive home the point that judicial act of pronouncement of judgment in open court was complete and hence no fault can be found in the manner of delivery,” the court held and dismissed the petition.
Citation: 2023 LiveLaw (Bom) 375
Observing that paternal grandmother or paternal aunt cannot be a substitute to mother during the phase of growth of a girl child, the Bombay High Court recently held that custody of a girl about to attain the age of puberty is preferred with her mother over her father.
Justice Sharmila U Deshmukh upheld a Family Court's order in a divorce case granting interim custody of an 8-year-old girl to her mother, who is also a doctor, and visitation rights to the father.
“the girl child aged about 8 years would be undergoing hormonal changes and also physical changes and as such much care has to be taken during this phase of growth of the girl child and the paternal grand mother or the paternal aunt cannot be a substitute to the mother who is also a qualified doctor. During this phase of life, the girl child requires care and attention of a women who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father”, the court held.
Case Title: Govind Poslya Gavit v. The Competent Authority
Citation: 2023 LiveLaw (Bom) 376
Observing that procedural laws dealing with citizens’ right to hold property aren’t merely ornamental and cannot be taken away, the Bombay High Court (Aurangabad Bench) set aside a land acquisition and compensation order “highhandedly” and hastily passed by IAS officer Minal Karanwal Assistant Collector, Nandurbar, Maharashtra.
Justices Ravindra Ghuge and YG Khobragade pulled up Karanwal for the manner in which the land acquisition was executed against tribals from the very outset, giving them just one day notice for a hearing, passing an order without hearing and compensating them less by terming their industrial lands as agricultural lands. It observed,
Accordingly, the court directed a newly appointed Competent Authority to conduct a re-hearing and award compensation treating the petitioners' lands as Industrial NA.
Bombay HC Disposes Of Plea Seeking Adequate Water Facility For Taloja Prison Inmates After State Govt. Informs About Installation Of Water Tanks, RO Plants
Case Title: Abhay Shamsundar Kurundkar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 377
Maharashtra Government informed the Bombay Hight Court that 20 water tanks of 5,000 litres capacity each have been installed in Taloja Central Prison and installation of 5 RO water purifier plants for drinking water will commence on September 1, 2023.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse thus disposed of a petition filed by an inmate seeking adequate water facility in the jail. The petition alleged that inmates are provided 1-1.5 buckets of 'unclean' water a day for drinking, washing, bathing etc.
Case Title: Geeta Ramanugrah Shastri v. Bar Council of Maharashtra and Goa and Ors.
Citation: 2023 LiveLaw (Bom) 378
Deprecating the trend of filing complaints against opposing counsels to intimidate them, the Bombay High Court recently held that mere identification of deponent in an affidavit does not mean advocate is personally attesting to the contents of the affidavit.
A division bench of Justice GS Patel and Justice Neela Gokhale set aside disciplinary proceedings for alleged professional misconduct against Advocate Geeta R Shastri, former Additional Government Pleader in the Court.
The Court cited Order 19 Rule 3 of the Code of Civil Procedure, 1908, which emphasizes that Affidavits should be confined to facts the deponent can personally verify. The Court noted that Shastri was not even the Advocate-on-Record, and merely identified the deponent. Such identification does not imply personal attestation to the accuracy of the deponent's statements, the court held.
The court said that the threat of disciplinary complaints against the opposing lawyer is used in several matters to ensure that the opposing party does not get proper legal representation.
Case Title: Khairunisa Sheikh Chand v. Chandrashekhar Daulatrao Chincholkar & Ors.
Citation: 2023 LiveLaw (Bom) 379
A panchayat member with more than two biological children could be disqualified under the Maharashtra Village Panchayats Act, however, the member’s step children wouldn’t be a determining factor for the same, the Bombay High Court held.
The court said that the objective of the Section was to disqualify a panchayat member responsible for the birth of more than two children. Therefore, a woman cannot be disqualified because her spouse has two children from his previous wedlock.
According to Section 14(1)(j-1) of the Act - No person shall be a member of a panchayat, or continue as such, who has more than two children unless they were born before the cut-off date.
A division bench of Justices AS Chandurkar and Vrushali Joshi said, “It is not the object of the said provision to discourage re-marriage of a spouse who has more than two children from his/her previous wedlock.”
Case Title: Asha Shivaji More v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 380
The Bombay High Court referred to a larger bench the question of whether an appeal by the victim against the judgment of acquittal passed by the appellate court is maintainable.
Justice Modak while dealing with two criminal appeals filed by the victims against acquittal of the accused by the sessions court in appeal, observed,
“I think forum for this (victim’s) Appeal is correlated to forum for an Appeal provided to the Accused against the judgment of conviction. If such forum is not there, how an Appeal against the judgment of acquittal passed by the Appellate Court will be maintainable?. So also, there is a controversy when the Appellate Court convicts the accused, whether victim can prefer an Appeal under Section 372 proviso of the Code (for inadequate compensation/for higher sentence) ?”
Trial Court Didn’t Conduct Inquiry Into Actual "Giving And Taking" Of Child In Adoption: Bombay HC Quashes Order Granting 2-Yr-Old’s Custody To Biological Parents
Citation: 2023 LiveLaw (Bom) 381
The Bombay High Court quashed a civil court’s order directing a couple to hand over custody of a two-year-old adopted child to his biological parents and directed the civil court to decide their suit seeing a declaration that the adoption is valid, within six months.
Justice Sharmila Deshmukh held that the trial court failed to conduct a comprehensive inquiry into the actual "giving and taking" of the child in adoption. The court highlighted that evidence needed to be presented to establish the actual giving and taking of the child with the intent to transfer the child from one family to another.
Underlining the sensitivity of the matter, the court said that there will be no extension of time for the final adjudication of the suit, and until then the child, who has been with the adoptive parents since he was two days old, will continue to remain with them.
Case Title: Prakash Madhukarrao Desai v. Dattatraya Sheshrao Desai
Citation: 2023 LiveLaw (Bom) 382
The Bombay High Court recently held that failure of the cheque holder to record a loan given to a cheque drawer in books/Income Tax Returns will not by itself render the loan unenforceable under section 138 of the Negotiable Instruments Act (NI Act).
A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that the existence of a legally enforceable debt/liability in favour of the cheque holder is presumed under Section 139 of the Act, and the accused has the onus to rebut such presumption.
The court further held that violation of section 269-SS of the Income Tax Act, 1961 (IT Act) which prohibits the receipt of more than Rs. 20,000/- in cash also would not render the transaction unenforceable under Section 138 of the NI Act.
Church Patriarchal Tribunal Not A ‘Public Authority’ Under RTI Act: Bombay High Court
Case Title: Archbishop Patriarch Of Goa Rev. Fr. Filipe Neri Ferrao v. State Information Commission
Citation: 2023 LiveLaw (Bom) 383
The Archbishop Patriarch of Goa in his capacity as the Patriarchal Tribunal or Church Tribunal is not a “public authority” under Section 2(h) of the Right to Information Act, 2005 (RTI Act), the Bombay High Court held.
The decision was passed in an eight years old case regarding information on the Archbishop Patriarch of Goa’s appointment. He adjudicates private law matters of Roman Catholics like annulment of marriage.
Justice MS Sonak reasoned that only a body established or constituted by a law made by the Parliament or the State Legislature would fall under RTI, however the Patriarchal Tribunal couldn’t be called an authority constituted by the parliament or state legislature.
The court noted that certain laws like the Canon Law made under the Portugal Parliament for its colonies was granted limited recognition under the Goa, Daman and Diu (Administration) Act, 1962. But this recognition didn’t mean they were laws constituted under the Parliament or State Legislature.
Case Title: Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 384
The Bombay High Court expressed its concerns regarding the shrinking space for burials in cemeteries in Mumbai and reminded the Municipal Commissioner & Maharashtra Government of their duty to provide such spaces.
The court was hearing a PIL which alleged that all the three spaces in the city originally earmarked by the Municipal Commissioner for cemeteries were either deleted from reservation or being used for some other purpose.
“For a Municipal body as also the State Government, there cannot be any engagement more urgent than finding appropriate space for burial of dead,” the bench of Justices Devendra Kumar Upadhyay and Arif Doctor observed in their order.
The bench added that under Section 436 of the Mumbai Municipal Corporation Act, 1888, it was mandatory upon the Commissioner to find other convenient places for the purpose of burials.
Case Title: Rahul S/o Sahdev Lokhande and Anr. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 385
The Nagpur bench of the Bombay High Court held that a Sarpanch who got removed from the post due to a no-confidence motion can contest a by-election conducted to fill the resulting vacancy.
A division bench of Justice AS Chandurkar and Justice Vrushali V Joshi observed that there is no provision in the Maharashtra Village Panchayats Act, 1959 prohibiting such a Sarpanch to contest the by-election necessitated due to their own removal.
Ensure Proper Maintenance Of Case Diaries Without Lame Excuses: Bombay High Court To Maharashtra DGP
Case Title: Sudhir Dhar and Ors. v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 386
Expressing strong displeasure over police disregard towards proper maintenance of case diaries, the Bombay High Court directed the Director General of Police (DGP), Maharashtra to ensure that his directions about proper maintenance of case diaries are followed by police officers without any lame excuses.
The division bench of Justice AS Gadkari and Justice Shivkumar Dige, while dealing with a writ petition filed by eight persons accused of insulting a woman's modesty, noted that the police had maintained the case diary in loose sheets disregarding Section 172 of the CrPC as well as the DGP’s directives.
The bench on highlighted that this was not the first time issues with case diaries had arisen, with multiple cases showing police stations not adhering to the proper procedures for maintaining case diaries under Section 172 of the CrPC. The court expressed frustration over the fact that despite having previously brought such cases to the attention of the Director General of Police (DGP) of Maharashtra, no improvement has been observed.
Case Title: Ranjeet Sampatrao Raskar & Ors. v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 387
The Bombay High Court disposed of two PILs challenging proposed de-merger of Uruli Devachi and Phursungi villages from the Pune Municipal Corporation (PMC), and establishment of a separate Municipal Council. The PILs claimed that the state government did not follow the process of consultation with the corporation as per section 3(3)(a) of the Maharashtra Municipal Corporation Act, 1949.
The court held that an Administrator appointed under Section 452A of the Act, possesses the authority to exercise all functions and duties entrusted to the body corporate under Section 5 of the Act.
Advocate General of Maharashtra Dr. Birendra Saraf told the bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor that the state government will rectify any legal deficiency found in the process of consultation with the Corporation before issuing the final notification modifying PMC limits.
Case Title: Sangita Vilas Kiwade v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 388
The Bombay High Court upheld the conviction of a 51 years old woman who murdered her neighbour's 3-year-old grandchild and attempted to kill three other grandchildren by throwing them in a canal over repayment of an illegal loan.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse observed that throwing a three-year-old child into the canal is so imminently dangerous that the appellant had knowledge that it would cause his death.
The appellant, Sangita Vilas Kiwade, was convicted under sections 363 (kidnapping), 302 (murder), and 307 (attempt to murder) of IPC for abducting four children and pushing three of them into a canal, leading to the demise of the youngest of them – a three-year-old. She is also convicted under section 32B(b) of the Bombay Money ending Act for operating illegal money lending business.
Case Title: Ashim Kumar Bagchi v. Balaji Telefilms Limited & Ors.
Citation: 2023 LiveLaw (Bom) 389
The Bombay High Court refused to stay the release of the Ayushmann Khurrana starrer Dream Girl 2. The film is produced by Ekta Kapoor’s Balaji Telefilms.
Justice Riyaz Chagla passed the order in a Commercial IPR suit filed by writer-director Ashim Kumar Bagchi wherein he alleged that makers are passing off his registered script as their own.
Bagchi sought an interim injunction on the release of the film. However, the court observed the interim plea was filed only on August 18, 2023 and the respondent must be given an opportunity to respond.
“It is well settled that at the eleventh hour, films should not be prevented from their release. An opportunity is required to be given to Respondent / Defendant to file their reply to the Interim Application.”
Application To Become Approver Cannot Be Withdrawn Once Pardon Is Granted: Bombay High Court
Case Title: State of Maharashtra v. Madhuri Badrinarayan Gote
Citation: 2023 LiveLaw (Bom) 390
The Nagpur bench of the Bombay High Court recently held that an accused cannot withdraw application to become a witness for the prosecution (approver) against co-accused once the application is accepted and pardon is already granted.
Justice GA Sanap explained that once an accused becomes an approver, she must be examined as a prosecution witness, and pardon can be withdrawn only as per section 308(1) of the CrPC if the prosecutor, after examination, certifies that she did not adhere to the terms of her pardon.
“Section 308(1) Cr.P.C. would show that after acceptance of pardon in view of the scheme of Sections 306 to 308 the approver has no choice or option or a right to not press or withdraw the application made to become an approver… in order to relegate the approver to the position of the accused the public prosecutor must certify that in his opinion the approver has, either by wilfully concealing anything essential or by giving false evidence, has not complied with the conditions on which the tender was made. Only after such certificate being given by the public prosecutor, the pardon tendered to the approver can be withdrawn”, the court held.
Case Title: Jayendra Narandas Bhatia v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 391
The Bombay High Court ordered the release of one Pratap Jivani, who had been unlawfully detained at his wife’s behest at the Amulya Prem Foundation Rehabilitation Centre in Bhiwandi.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse, in a habeas corpus writ petition filed by Jivani’s cousin Jayendra Bhatia, observed that no medical papers showing that he needed to be admitted in the rehabilitation centre were produced.
“It is clear that Pratap was unnecessarily detained at the said rehabilitation centre at the behest of his wife…We are not shown any medical papers of Pratap to show that he was required to be admitted to the rehabilitation centre. Hence, in view of the aforesaid, we permit Pratap to go alongwith the petitioner. The aforesaid representatives of the rehabilitation centre assured us that henceforth they will not detain any person in such manner without following due process of law. Statement accepted.”
Bombay High Court Quashes Sexual Harassment FIR Against Company's Human Resource VP
Case Title: Vijay Choudhary v. state of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 392
The Bombay High Court has quashed a sexual harassment FIR against the Vice President Human Resources (HR) of an insurance firm observing improvements in the complainant’s statement to the police.
The division bench headed by Justice AS Gadkari cited guideline 6 & 7 in the State of Haryana & Ors. vs Bhajan Lal & Ors judgement.
The court noted that the woman wrongly claimed the company didn’t take action on her complaints as the ICC conducted two enquiries against the petitioner.
“Perusal of record clearly indicates that, the FIR lodged by the Respondent No. 2 is filled with improvements and suppression of material facts which are on record, as noted above and according to us is lodged with mala fide intention, only to harass the Petitioner.”
Case Title: Astec LifeSciences Ltd. v. The Assistant Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 393
The Bombay High Court quashed the reopening of the assessment after 4 years in the absence of concealment by the assessee.
The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla observed that where the assessee has fully disclosed all the material facts, it is not open for the Assessing Officer to reopen the assessment on the ground that there is a mistake in the assessment. What is recorded is that the petitioner wrongly claimed certain deductions to which he was not entitled. There is a well-known difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding the material facts fully and truly. It is only in the latter case that the Assessing Officer would be entitled to proceed under Section 147 of the Income Tax Act.
Case Title: UPL Limited v. UOI
Citation: 2023 LiveLaw (Bom) 394
The Bombay High Court held that the Ministry of Finance is responsible for the officers who are not diligently discharging vital duties and who, in fact, are playing with the public revenue.
"We take judicial notice of a series of petitions reaching this Court on the ground that the concerned jurisdictional officers exercising such enormous powers not only under the Finance Act, 1994, but also under the other Central Acts, for reasons which are totally ill-conceived and contrary to law, have not adjudicated and/or taken forward the show cause notice for unduly long periods, and in some cases about 10 years," the bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed.
Case Title: Mohan Yeshwant Padawe & Ors v. State Of Maharashtra & Ors
Citation: 2023 LiveLaw (Bom) 395
The Bombay High Court held that transit buildings cannot be repaired or made permanent since they are inherently temporary and designed for short-term use.
The division bench of Justice GS Patel and Justice Kamal Khata added that these buildings were not subject to structural audit regulations.
“Transit buildings are by the very nature of their construction and by structural design temporary and not meant to last beyond three to five years. There is no question of repairs or of these buildings being made permanent. Even the planning permissions that are granted for transit buildings are not granted in the same manner or subject to the same stringent requirements as they are for permanent constructions…the attempt to apply the law on the TAC in structural audits to transit buildings is not only an inversion of law but is a perversion of the law.”
The observation came in a writ petition filed by four residents against demolition notices for a transit building constructed in 2006. The bench found that the buildings were built with a life of five years.
GMAT Exam Scam: Bombay High Court Denies Anticipatory Bail To Accused
Case Title: Kumar Kunal v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 396
The Bombay High Court denied anticipatory bail to one Kumar Kunal, accused of remotely accessing the laptop of GMAT exam candidates through Any Desk app, solving the papers, and manipulating results.
Justice Amit Borkar observed that the custodial interrogation of Kunal is necessary in light of WhatsApp chats between him and one Shantanu, a victim of the scam.
“prima facie, it appears that the relevant extract of diary maintained by the principal accused indicate payment of Rs.1,47,000/- and Rs.2,56,000/- to the applicant by cash. The prosecution case gets strength from the WhatsApp conversion between the applicant and witness Shantanu who is one of the victim…In the context of observations made in the said order the WhatsApp chat between witness Shantanu and the applicant does have material bearing on the investigation. Therefore, custodial interrogation of the applicant is necessary”, the court held.
Mere Use Of Deceased Brother's SIM Card Not An Offence: Bombay High Court Quashes Cheating Case
Case Title: Heena Afrin Huzaifa Shaikh v. State of Maharashtra & Anr.
Citation: 2023 LiveLaw (Bom) 397
Observing that mere use of deceased brother's SIM card does not constitute an offence, the Bombay High Court quashed a cheating case against a doctor filed by her sister-in-law for alleged use of her deceased husband’s SIM card and sale of his movable assets without consent.
A division bench of Justice Nitin W Sambre and Justice RN Laddha in a writ petition filed by the accused seeking quashing of the case remarked that prima facie, the proceedings were initiated solely out of family difference.
“Merely because the sim-card of real brother was used by the sister i.e., the present petitioner, that by itself will not constitute or amount to commission of the offence. The fact remains that to infer misuse of sim-card by the petitioner, there is no iota of evidence to infer such act…Prima-facie, it appears that the criminal proceedings are initiated by the complainant against the petitioner solely out of family differences as could be inferred from the relationship between the complainant and the petitioner.”
Case Title: Ankiti Bose v. Mahesh Murthy and Anr
Citation: 2023 LiveLaw (Bom) 398
The Bombay High Court granted a permanent injunction against venture capitalist Mahesh Murthy over an article he authored for Outlook Business Magazine against Singapore-based startup Zilingo Pte’s former CEO Ankiti Bose.
Bose who was sacked from Zilingo over alleged financial irregularities last year, was granted relief in the defamation suit she filed against Murthy and Outlook. She was however not named in the article.
Justice SM Modak noted that while it may be true that Bose wasn’t specifically named in the article, the defendants took a dual stand in their affidavit in reply.
Case Title: Sandeep Pandurang Patil v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 399
The Bombay High Court set up a committee headed by a retired judge for a “thorough” inquiry into alleged illegal allotment of tenements under the Basic Services for Urban Poor scheme being implemented by the Kalyan-Dombivali Municipal Corporation, located just outside Mumbai.
Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor observed:
“The scheme has a laudable object of not only developing the area but also providing basic infrastructure facilities such as housing and shops etc. to the urban poor; however, as per the allegations, the said scheme has been marred by large scale irregularities.”
