150 Important Rulings Of Bombay High Court In 2023: Part II

Case Title: Javed Ahmed Hajam v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 195

The Bombay High Court refused to quash an FIR against a young Kashmiri professor booked for his WhatsApp status terming the abrogation of Article 370 a “black day” for Jammu and Kashmir.

A division bench comprising Justices Sunil Shukre and MM Sathaye observed that the status was posted “without giving any reason and without making any critical analysis of the step taken by the Central Government towards abrogation of Article 370 of the Constitution.”

Therefore prima-facie the professor had committed an offence punishable under Section 153A of the IPC (promotion of enmity between two groups), the bench observed.

2. After 9 Yrs Bombay High Court Discontinues Monitoring Anti-Superstition Crusader Narendra Dabholkar's Murder Probe; Kin Say Masterminds Yet To Be Nabbed

Case Title: Mukta Dabholkar & Anr. v. Central Bureau of Investigation & Ors.

Citation: 2023 LiveLaw (Bom) 201

The Bombay High Court refused to continue monitoring the murder probe of anti-superstition crusader Narendra Dabholkar, who was shot dead for ideological reasons on his morning walk in 2013.

The division bench of Justices Ajay S Gadkari and Prakash Naik disposing of two petitions, one filed by Dabholkar's kin for court monitored probe observing that the investigation is complete.

3. Widow Not Liable To Maintain In-Laws Under Section 125 CrPC: Bombay High Court

Case Title: Shobha w/o Sanjay Tidke v. Kishanrao S/o. Ramrao Tidke and Anr.

Citation: 2023 LiveLaw (Bom) 202

The Bombay High Court held that parents-in-law are not entitled to maintenance from their widowed daughter-in-law under section 125 of CrPC.

Justice Kishore C Sant sitting at Aurangabad noted that the list of relatives entitled to claim maintenance under the section is exhaustive and does not include father-in-law and mother-in-law.

4. Indian Court Can Entertain Complaint Against Domestic Violence Committed Abroad: Bombay High Court

Case Title: S v. H

Citation: 2023 LiveLaw (Bom) 207

The Bombay High Court held that judicial magistrate in India can take cognizance of domestic violence committed in foreign soil under the Protection of Women From Domestic Violence Act, 2005 (DV Act).

Justice GA Sanap of the Nagpur bench observed that the Act is a social beneficial legislation and the lawmakers worded section 27 of the Act keeping in mind possible domestic violence outside India.

5. Maharashtra Panchayat Act | Collector Has Exclusive Jurisdiction To Determine If Election Candidate Disqualified Due To False Caste Claim: High Court

Case Title: Archana W/o. Ananda Shembalwad v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 214

The Bombay High Court held that the Collector has exclusive jurisdiction to determine whether an electoral candidate is disqualified from Panchayat membership due to submission of false caste certificate under the Maharashtra Village Panchayat Act, 1958.

Justice Arun R Pedneker of the Aurangabad bench, while dismissing a woman's writ petition challenging her disqualification from Panchayat membership due to false caste certificate, held –

“Disqualification of a membership is determined under section 16 by the Collector and not by an election petition under section 15. The Collector under section 16 of the Maharashtra Village Panchayat Act has exclusive jurisdiction to deal with the issue of submission of a false claim or a false caste certificate at the time of nomination or non submission of caste validity certificate within the period contemplated in section 10-1A of the Village Panchayat Act.”

6. "Considerable Inflow Of Public Income To Deity": Bombay High Court Dismisses Pleas Claiming Jagdamba Tuljapurchi Temple Is 'Private Temple'

Case Title: Vijay Arjun Bhagat v. Kisan Lahanu Bhagat (deceased) and Ors.

Citation: 2023 LiveLaw (Bom) 216

The Bombay High Court declared that the Jagdamba Tuljapurchi Devi Temple in Burhannagar of Ahmednagar District is a place of public religious worship as historically the public has had free access to it.

Justice Sharmila U Deshmukh of Aurangabad bench dismissed three writ petitions by the heirs of the original trustee of the Temple claiming it is a private temple and seeking de-registration of the temple trust.

The court noted that there was a substantial flow of public money to Palkhi and there is no mention of any other source of income for the Bhagats' ancestors apart from the offerings made to the temple and the Palkhi. This strongly indicates that the temple was constructed out of public funds, the court said. The court further noted that the expenses of maintaining the temple are met out of the public funds.

7. Breaking: Bombay High Court Orders Maha Govt To Direct Educational Institutions To Enable Retrospective Name & Gender Change For Transgender Persons

Case Title: X v. The Dean & Anr

Citation: 2023 LiveLaw (Bom) 217

The Bombay High Court asked the Maharashtra Government to issue directions to all educational institutions in the state to enable retrospective name and gender change for transgender persons in their records.

A division bench of Justices Gautam Patel and Neela Gokhale observed that educational institutions should have a form on their websites for precisely such changes, i.e., noting a change in name and a change in gender.

The court disposed of the plea of an alumni from the Tata Institute of Social Sciences (TISS) who sought changes in their records with the institute and re-issuance of their education documents and degree certificate with their new name and gender.

8. [Copyright Act] Bombay HC Restrains Radio Channels From Broadcasting Songs Without Equal Royalty To Authors, Says Position Of Law Prima Facie Changed

Case Title: Indian Performing Right Society Ltd. v. Rajasthan Patrika Pvt. Ltd.

Citation: 2023 LiveLaw (Bom) 224

The Bombay High Court temporarily restrained FM radio stations - Radio Tadka and Radio City from broadcasting songs authored by the members of Indian Performing Rights Society (IPRS) without paying royalties to the authors.

Justice Manish Pitale held that prima facie, the original authors (authors, composers, publishers etc.) of the literary or musical works used in films and sound recordings are entitled to royalties equal to the producer for utilization of their works.

The court said that prima facie, due to a 2012 amendment in the Copyright Act, the original authors, who were earlier not entitled to royalty once their work became part of a film, can now claim royalty for any use of their work, except screening in a cinema hall in a movie. The amendment has fundamentally changed the manner in which the rights of authors of original works have to be treated, the court added.

9. Eating House License Doesn't Automatically Include License To Serve Hookah: Bombay High Court

Case Title: Sayli B Parkhi v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 226

The Bombay High Court held that an Eating House Licence granted to a restaurateur doesn't deem to include a permit to serve 'Hookah' or 'Herbal Hookah' under section 394 of the Mumbai Municipal Corporation Act.

Holding otherwise would lead to “absolute nuisance” especially since neither an eating house nor the civic body can control the ingredients of hookah once it is served to the customer, a division bench of Justice GS Kulkarni and RN Laddha said.

10. Bombay High Court Issues Directions For Expeditious Disposal Of Creditors' Applications U/S 14 SARFAESI Act For Possession Of Secured Assets

Case Title: L & T Finance Limited v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 229

Pendency of secured creditors' applications for possession of secured assets is bad for financial health of the country, the Bombay High Court held.

A division bench of Justice Nitin Jamdar and Justice Abhay Ahuja issued several directions to streamline the process of disposal of applications under Section 14 of the SARFAESI Act before Chief Metropolitan Magistrates and District Magistrates.

11. Invalidity Of Board Resolution Is A Procedural And Curable Defect, Cannot Lead To Rejection Of Claims And Termination Of Arbitral Proceedings: Bombay High Court

Case Title: Palmview Investments Overseas Limited v. Ravi Arya

Citation: 2023 LiveLaw (Bom) 235

The Bombay High Court held that any defect in the board resolution authorizing a person to initiate arbitration is only a procedural and a curable defect, thus, it cannot be a ground for the rejection of the claims and termination of the arbitral proceedings.

The bench of Justices K.R. Shriram and Rajesh S. Patil held that requirement of a board resolution authorizing a person to take legal action on behalf of a company is a procedural requirement and any defect in such a resolution would only be a procedural irregularity and thus it cannot be allowed to defeat a substantive right of a party.

The Court held that in view of Section 19 of the Act, an arbitrator is not bound by the CPC, however, it does not mean that the arbitrator cannot draw sustenance from the procedures as laid down under the Code. It further held that the arbitrator can in fact travel beyond CPC and only fetter on its powers is to observe the principles of Natural Justice.

12. Issuance Of A Few Rent Receipts By Owner To The Occupants Of Requisitioned Premises Does Not Amount To A Landlord Tenant Relationship: Bombay High Court

Case Title: Alice D'souza v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 238

The Bombay High Court directed the Maharashtra government to handover possession of two South Mumbai flats back to the owner, a 93-year-old woman, over eighty years after they were requisitioned in 1942.

A division bench of Justice RD Dhanuka and Justice MM Sathaye held that the original legal relationship between the owner and the occupants of the requisitioned flats would not change merely because of Payment of rent by the occupant and the acceptance by the owner.

“issuance of a few rent receipts by owner to the occupants in case of requisitioned premises, does not amount to change of legal relationship between them or any admission of landlord tenant relationship, especially when non-handing over of possession to Owner, has resulted in the said premises remaining under requisition”, the court held.

13. Child Custody Orders Can't Be Rigid And Final, Can Be Moulded Keeping In Mind Needs Of Child At Various Stages Of Life: Bombay High Court

Case Title: XYZ v. ABC

Citation: 2023 LiveLaw (Bom) 240

Child custody orders can be altered and moulded at various stages of a child's life keeping in mind his welfare, the Bombay High Court observed.

A single bench of Justice Neela Gokhale allowed a man to re-approach the Family Court to alter the mutual consent divorce terms with his ex-wife regarding child access, owing to the wife's remarriage.

14. Bombay High Court Restrains Trust In Late Actor Dada Kondke's Name From Exercising Rights Over 12 Of His Films

Case Title: Everest Entertainment LLP v. Hridaynath D. Kadudeshmukh and Others

Citation: 2023 LiveLaw (Bom) 242

The Bombay High Court temporarily restrained the trust named after Marathi actor-filmmaker Dada Kondke from dealing in the copyrights of 12 of his films.

Justice Manish Pitale passed the order in an Intellectual Property Right suit filed by Everest Entertainment Ltd against Shahir Dada Kondke Pratishthan and others. Everest contended it had acquired the film's rights from Kondke's heir Manik Padmakar More.

The court said it was prima facie satisfied that More had acquired rights in the 12 films, under Kondke's probated Will and therefore restrained two different organisations from handing over the film's negatives.

15. Bombay High Court Allows 78 Flat Purchasers To Complete Stalled Residential Project Through Self-Development

Case Title: RNA Palazzo Residents Welfare Association v. East and West Builders and Ors.

Citation: 2023 LiveLaw (Bom) 247

The Bombay High Court allowed 78 flat purchasers to complete construction of RNA Palazzo, a residential project in Kandivali West, Mumbai, which has been stalled for the past 11 years.

Justice RI Chagla passed the order after the developer East and West Builders agreed to the appointment of court receiver and to let the flat purchasers' association complete the project.

“Admittedly there has been no construction activity since the year 2012… The said project is now to be completed by the Plaintiff Association through self-development”, the court stated.

The court also directed Municipal Corporation of Greater Mumbai to grant expeditious approvals for the completion of the project, subject to necessary compliances.

16. Recognition Of Person As 'Tribal' After Transfer Of Land To Non-Tribal Won't Entitle Him To Seek Restoration: Bombay High Court Full Bench

Case Title: Baliram S/o Reva Chavhan v. Gajanan S/o Shekrao Wanjare

Citation: 2023 LiveLaw (Bom) 256

The Bombay High Court held that recognition of a person as Tribal after the date he transfers his land to a non-tribal would not entitle the transferrer to restoration of the land under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.

A full bench comprising of Justice Sunil B Shukre, Justice AS Chandurkar, and Justice Anil L Pansare sitting at Nagpur held –

“Subsequent recognition of a transferor as a Tribal within the meaning of Section 2(1)(j) of the Restoration Act would not entitle him to seek restoration of the land transferred by him to a non-Tribal-transferee and his subsequent recognition as such is of no assistance to him for the purpose of availing of the benefit of Section 3 of the Restoration Act.”

The court held that a tribal-transferor who is the beneficiary of the Restoration Act must be a person belonging to a Scheduled Tribe at the time when the he transfers his land to a non-tribal transferee.

“…the social status of a person as a Scheduled Tribe on the date of the transaction and not his natural identity as a member of a tribe is what matters and if he does not possess that status on the date of transaction, he would not be entitled to restoration of his land from the non-tribal”, the court added.

17. "Citizens Can Profess And Propagate Their Own Religion": Bombay High Court Quashes Section 144 Order Against Christian Couple Accused Of Conversion

Case Title: Joan Mascarenhas E D'Souza v. State of Goa

Citation: 2023 LiveLaw (Bom) 257

Prohibiting individuals from carrying out any religious activities on their property through an order under section 144 of the CrPC is a direct violation of their fundamental rights enshrined in Article19(1), Articles 25 and 26 of the Constitution of India the Bombay High Court held.

The Goa bench comprising Justices Mahesh Sonak and Valmiki Menezes quashed an order passed under section 144 of the CrPC by the district magistrate against a Christian couple accused of religious conversion.

The court said that the petitioner and her husband were within their rights to propagate their own religion and to profess it in any manner that they please though within the bounds of law, more so, when it is within their own private property.

18. Section 115 Trademarks Act | Police Can't Seal Factory Premises Instead Of Seizing Heavy Machinery: Bombay High Court

Case Title: Mahendra Dattu Gore v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 258

The Bombay High Court ordered de-sealing of factory premises in Chakan near Pune and observed that police don't have the power under section 115 of the Trademarks Act to seal factory premises where incriminating articles were situated.

A vacation bench of Justice Sharmila Deshmukh and Arif Doctor noted,

“The provisions of sub-section (4) of section 115 of the Trade Marks Act, 1999 permits the police officer to seize without warrant the articles / items which are enumerated in the said sub-section. It is not disputed that there is no power vested with the police to seal the factory premises.”

19. Court Custody Of Secured Asset Can't Be Used As Shield By Debtor To Prevent Creditor From Taking Possession Under SARFAESI Act: Bombay High Court

Case Title: Robin Karamchandani v. Jem and Associates & Ors

Citation: 2023 LiveLaw (Bom) 261

The Bombay High Court held that a secured creditor cannot be prevented from taking possession of a mortgaged property under section 13 of the SARFAESI Act just because the property is custodia legis (in custody of a court).

Justice RI Chagla observed that the court has to assist the secured in taking possession of the secured asset. It particularly directed the court receiver to handover the possession of mortgaged property to Caparo Financial Solutions Limited, who had given a debt to the property owner.

“...considering that the subject mortgaged property is in the custody of this Court, it is for this Court to assist the Applicant in taking possession of the secured asset particularly when the conditions for consent to the Court sale have not been satisfied...In normal course possession of the Secured Asset would be taken from the borrower. However, considering that the subject mortgaged property in the present case is custodia legis, the Judgment Debtor cannot use this as a shield to prevent the Applicant (secured creditor) from taking possession of the secured asset”, the court held.

20. Police Can't Add More Sections Against Accused And Seek Extension Of Custody By Mere Letter To Court Without Fresh Remand Papers: Bombay High Court

Case Title: Irfan Moiuddeen Saiyyed and Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 264

The Bombay High Court held that police cannot seek to add additional sections and extension of judicial custody by a mere letter to the judge without submitting remand papers and bringing the new sections to the notice of the accused.

Justice SG Mehare of the Aurangabad bench observed that the accused has to be given an opportunity to contest the additional charges brought against him. It granted default bail to four persons accused of cryptocurrency fraud.

“…in the absence of submitting the remand papers without knowledge of the accused, the prosecution cannot by a bare letter addressed to the Court, seek the extension of remand more than the period prescribed under Section 167 of the Cr.P.C…the extension of remand, particularly after adding new sections constituting the serious offence, is not a bare formality. The Court extending the detention of the accused for a period more than prescribed under the law has to pass a speaking order after hearing both sides,” the court held.

21. Bombay High Court Orders Take Down Of Prima Facie Defamatory Videos Against Covishield Manufacturer Serum Institute, CEO Adar Poonawalla

Case Title: Serum Institute of India v. Yohan Tengra

Citation: 2023 LiveLaw (Bom) 267

The Bombay High Court directed two individuals to take down prima facie defamatory content against Covishield vaccine manufacturer Serum Institute of India and its CEO Adar Poonawala in a Rs. 100 crore defamation suit.

The court further restrained them from publishing further defamatory content.

Justice Riyaz Chagla disposed of the interim application filed by SII and Adar Poonawala against social media influencer Yohan Tengra and one Ambar Kori.

22. Nothing To Show Journalism Standards Compromised: Bombay HC Grants Interim Relief To Indian Express In ₹100 Cr Defamation Suit Against Website

Case Title: The Indian Express (P) Ltd. & Anr. v. Unmesh Padmakar Gujarathi & Ors.

Citation: 2023 LiveLaw (Bom) 270

The Bombay High Court granted ad-interim relief to Indian Express Group directing e-paper Sprouts to remove alleged defamatory articles against Girish Kuber, editor of Express' Marathi daily Loksatta.

Justice Manish Pitale observed that no justification is given for publication of articles alleging that Kuber compromised high standards of journalism.

“…it is found that there does not appear to be even prima facie justification offered by the said Defendants for publishing the said news reports/articles in its e-paper. Although reference is made to the alleged compromise with the high standards of journalism due to the actions of the Plaintiff No. 2 (Girish Kuber), there are no details forthcoming… There does not appear to be any justification placed before this Court on behalf of the Defendant Nos. 1 and 2”, the court observed.

23. Private School Not Required To Communicate Adverse Remarks To Probationer For Terminating Services Unless Stigmatic: Bombay High Court Full Bench

Case Title: Gramin Yuvak Vikas Shikshan Mandal Kinhi Naik and Anr. v. Shivnarayan Datta Raut and Anr.

Citation: 2023 LiveLaw (Bom) 271

The Nagpur bench of Bombay High Court held that a private school management does not have to write confidential report and communicate adverse remarks to an employee appointed on probation, as such an employee has no right to the post.

A full bench of Justices Sunil B Shukre, Avinash G Gharote, and Anil S Kilor held that maintaining a record of objective assessment of the probationer's service is sufficient compliance before terminating him under section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977.

“in the case of probationer, he has no right to his post and whose termination of service does not amount to a dismissal or removal by way of punishment, there is no requirement to initiate disciplinary proceedings or departmental enquiry to terminate the service of a probationer on the ground of unsatisfactory behaviour or performance…therefore, the objective assessment of performance, during the period of his probation by maintaining the record of such assessment under Rule 15(6) of the MEPS Rules, is sufficient. Hence, there is no requirement to write and maintain confidential report of the probationer”, the court held.

The court said that principles of natural justice are not required to be followed while terminating a probationer if the termination order is not stigmatic. There is no necessity to communicate any adverse remarks or to facilitate a probationer to make a representation under Rule 15(4) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the court said.

24. “Animals Have Feelings Like Human Beings”: Bombay High Court Denies Interim Custody Of Milching Buffaloes To Owners For Violating Transportation Rules

Case Title: Ansar Ahmad v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 273

The Bombay High Court denied interim custody of over 68 cattle to its owners in a case under the Prevention of Cruelty to Animal Act 1960 (PCA) for failing to follow mandatory norms while transporting the animals.

Even as the owners claimed that they were being denied income from their milching buffaloes, the court ruled that till the end of the trial the buffaloes would remain with the Gaushala. The animals were placed at the Gaushala after they were seized early last year.

Justice GA Sanap dismissed an appeal filed by the cattle owners in two separate pleas observing the gaushalas were better equipped to care for the animals.

25. Declaration Of Land As 'Slum' Has Widespread Ramifications On Rights Of Owners & Occupiers, Individual Notices Must Be Served: Bombay High Court

Case Title: Allan Sebastian D'Souza and Anr. v. Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal and Ors.

Citation: 2023 LiveLaw (Bom) 275

Observing that the declaration of a land as slum has widespread ramifications on the rights of the landowner, the Bombay High Court held that notice for such a declaration has to be mandatorily served on each owner and occupier of the land.

Justice Arif S Doctor held that if serving a notice under Rule 3 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Rules, 1971 to each owner and occupant is impracticable, it can be dispensed with only after recording compelling reasons by the competent authority.

26. Bombay High Court Restores Case Against Marathi Preacher Who Advised Couples To Have Sex On Even Dates To Conceive Male Child

Case Title: Ranjana Pagar-Gawande v. Nivrutti Kashinath Deshmukh and Ors.

Citation: 2023 LiveLaw (Bom) 284

Religious discourse on techniques to conceive and identify a male foetus prima facie is an offence under the anti-sex determination PCPNDT Act, the Bombay High Court held while refusing to quash a case against Marathi preacher (kirtankar) Nivrutti Kashinath Deshmukh (Indorikar). Deshmukh allegedly asked couples to perform sexual intercourse on even days for a male child.

Justice Kishore Sant observed that 'advertisement' under Sections 6 and 22 (1) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act) cannot be restricted to diagnostics centres and must be given a wider meaning.

It would include anyone propagating techniques for foetus's sex selection, the court said.

27. Bombay High Court Directs State To Allow E-Complaints For Illegal Animal Slaughter

Case Title: JIV Maitri Trust v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 285

The Bombay High Court directed the Brihanmumbai Municipal Corporation to prominently display its policy regarding animal sacrifice during religious ceremonies, as well as the e-mail address and toll-free numbers for complaints on its website, at least during festivals where such animals' sacrifice/slaughtering takes place.

The division bench of Acting Chief Justice Nitin Jamdar and Justice Sandeep Marne also directed BMC to make the grievance redressal forum regarding animal slaughters available to the citizens by way of email.

28. Domestic Violence Act | Muslim Woman Can Seek Maintenance Even After Divorce: Bombay High Court

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 294

The Bombay High Court held that a Muslim woman can seek relief under the Protection of Women from Domestic Violence Act, 2005 (DV Act) even after divorce.

Justice GA Sanap of the Nagpur bench dismissed a man's revision application against sessions court order enhancing maintenance to his wife in a domestic violence case.

29. Challenge To Recovery Notice U/S 13(2) SARFAESI Act Lies Before DRT And Not Civil Court, Unless Plaint Alleges Fraud: Bombay High Court

Case Title: Regional Manager, Union Bank of India and Anr. v. M/s Punya Coal Road Lines and Ors.

Citation: 2023 LiveLaw (Bom) 295

The Bombay High Court held that once a secured creditor issues demand notice under section 13(2) of the SARFAESI Act, 2002, the civil court's jurisdiction is barred, and any challenge to the notice comes under the domain of the Debts Recovery Tribunal (DRT).

Justice MS Jawalkar rejected a borrower's civil suit alleging that the bank violated Guidelines on Fair Practices Code for Lenders and Fair Lending Practices Code while classifying the loan account as a non-performing asset (NPA) observing that the borrower can raise these grounds in defence in the bank's recovery suit before the DRT.

The court set aside trial court's order refusing to reject two civil suits by a borrower against bank alleging that the bank acted illegally by not deciding proposal for restructuring of loan accounts as well as violating specific RBI circulars.

30. Maharashtra Police Act | Externing Authority Can't Direct Initiation Of Proceedings U/S 110 CrPC For Good Behaviour Bond: Bombay High Court

Case Title: Gautam Shantilal Daima v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 307

The Bombay High Court held that externing authority under the Maharashtra Police Act does not have any power to direct the police to approach the executive magistrate for a show cause notice under section 110 (security for good behaviour from habitual offenders) of the CrPC against a person.

Justice Sarang V Kotwal observed that once process is issued against a person under section 59 of the Maharashtra Police Act, no other order except an externment order or an order dropping externment proceedings can be passed by the externing authority.

“Once the proceedings were initiated by issuing process under Section 59 of the said Act, the only logical conclusion could be either issuance of externment order or dropping the proceedings. The operative part directing initiation of proceedings under Section 110 of Cr.P.C. is not contemplated under Section 56(1) of the said Act at all”, the court held.

31. Petroleum Rules 2002 | Pendency Of Suit For Lease Renewal Doesn't Confer 'Right To Site' For Storing Petroleum After Lease Expiry: Bombay High Court

Case Title: Vijay S/o. Harinarayan Choudhary v. M/s. Indian Oil Corporation Ltd. and Ors.

Citation: 2023 LiveLaw (Bom) 328

The Bombay High Court held that after expiry of lease, pendency of civil suits between landowner and leaseholder would not give the leaseholder right to store petroleum on the site under Rule 152(1)(i) of the Petroleum Rules, 2002.

A division bench of Justice Rohit B Deo and Justice MW Chandwani sitting at Nagpur quashed the license granted to the Indian Oil Corporation Limited (IOCL) for operating a petrol pump on a plot in Nagpur.

32. 'Sexual Acts Do Not Happen Only In Confines Of Marriage, Age Of Consent Has To Be Distinguished From Age Of Marriage': Bombay High Court

Case Title: Ashik Ramjan Ansari v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 336

Raising concerns about the increase in criminal cases involving minors in consensual sexual relationships, the Bombay High Court called for a shift from a punitive approach towards adolescents' sexuality to one that enables access to sexual and reproductive health services.

“The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect," Court observed.

It added,

"Whilst all children are entitled to be protected from sexual violence, such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk taking though not exposing them to inappropriate response, harm and danger. The penal approach towards adolescents' sexuality has impacted their life to a barrier free access to sexual and reproductive health services”, the court observed.

Justice Bharti Dangre said that the criminalization of romantic relationships has burdened the justice system, consuming significant time and resources, while ultimately the victim turns hostile. It stressed the importance of striking a balance between the protection of vulnerable class and those capable of deciding what is right for them.

33. SC/ST Atrocities Act | Case Not Made Out For Releasing Accused No Ground To Not Notify Victim Regarding Bail Proceedings: Bombay High Court

Case Title: Kishor Shivdas Shinde v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 349

The Bombay High Court deprecated the practice of some Special Judges under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act not properly reflecting the submissions of victims as per Section 15A of the Act in their orders.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase, while granting bail to a man accused in a murder case, observed that bail application should be decided only after informing and hearing the informant or the victim.

34. S.149 IPC | Accused Not Absolved From Offence Committed By Unlawful Assembly Based On Mere Plea Of 'Not Being Armed': Bombay High Court

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.

35. Final Notification U/S 26A Wildlife Protection Act Not Necessary For Declaring Mhadei Sanctuary As 'Tiger Reserve': Bombay High Court

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.

36. SARFAESI Act | Secured Creditor May Initiate Recovery Proceedings Against Guarantor Even If Defaulter Is Placed Under Moratorium: Bombay High Court

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.

37. Judgement Pronounced In Open Court But Signed After Transfer Of Judge A Valid Judgement : Bombay High Court

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 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.

38. Two Children Limit For Panchayat Members Not Meant To Discourage Re-Marriage, Excludes Step-Children: Bombay High Court

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 stepchildren 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.”

39. Cheque Holder's Failure To Record Loan In Books Not Ground To Dismiss Complaint U/S 138 NI Act: Bombay High Court

Case Title: Prakash Madhukarrao Desai v. Dattatraya Sheshrao Desai

Citation: 2023 LiveLaw (Bom) 382

The Bombay High Court 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.

40. 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.

41. Sarpanch Removed Due To No-Confidence Motion Can Contest By-Elections To Fill Vacancy Caused By Own Removal: Bombay High Court

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.

42. Administrator Appointed U/S 452A Of Maharashtra Municipal Corporation Act Can Exercise All Powers Of The Body Corporate U/S. 5: Bombay High Court

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.

43. 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 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.

44. Transit Buildings Inherently Temporary Structures, Cannot Be Repaired Or Made Permanent: Bombay High Court

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.

45. Protection Of SC/ST Act Not Limited To States Where Victims Are Recognized As SCs/STs: Bombay High Court Full Bench

Case Title: Sanjay Katkar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 402

The Bombay High Court has ruled that the protection to members of Scheduled Castes or Scheduled Tribes (SC/ST) under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (Atrocities Act) can't be limited to states where they are officially recognized as such.

A Full Bench of Justice Revati Mohite Dere, Justice Bharati Dangre, and Justice NJ Jamadar held that even if a community isn't recognized as SC or ST in a state, they still get the protection of the Act if an atrocity happens against them there

The court further ruled that, to avoid discrepancies, appeals against trial court orders under the Atrocities Act, regardless of the specified punishment, should be dealt by a single judge of the High Court. The court held that appeals against grant/refusal of bail under by Section 14A(2) of the Act should also be heard by a single judge of the High Court.

46. AO Not Justified In Disallowing Part Of The Commission Payment To Indian Hume Pipe: Bombay High Court

Case Title: The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 403

The Bombay High Court held that the Assessing Officer (AO) was not justified in disallowing part of the commission payment to Indian Hume Pipe.

The bench of Justice G.S. Kulkarni and Justice Jitendra Jain observed that the mere fact that the assessee, Indian Hume Pipe, establishes the existence of an agreement between him and his agent and the fact of actual payment leaves it to the discretion of an officer to consider whether such expenditure was made exclusively for the purpose of the business. The expenditure incurred must be for commercial expediency. However, in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, the reasonableness of the expenditure has to be adjudged from the businessman's point of view and not from the department's perspective.

47. Bombay High Court Refuses 50% Entitlement Of Beneficial Ownership In Husband's Shareholding By Portuguese Civil Code For 'Deemed Dividend' Taxability

Case Title: Dattaprasad Kamat v. Assistant Commissioner Of Income Tax

Citation: 2023 LiveLaw (Bom) 404

The Bombay High Court has refused 50% entitlement to beneficial ownership in a husband's shareholding under the Portuguese Civil Code for 'deemed dividend' taxability.

The bench of Justice Valmiki SA Menezes observed that Section 2(6A)(e) in the Income Tax Act, 1922, which is similar to the provisions of Section 2(22) of the Income Tax Act, 1961, creates a deeming fiction, by which the dividend referred to is not a real dividend and the person deemed to have received it does not actually get any income. The only person who is deemed to have received that income can be assessed in respect of the dividend, that person alone being a shareholder.

The court noted that the effect of clause (e) of Section 2(22) is to broaden the ambit of the expression "dividend" by including certain payments that the company has made as a loan or advance for the individual benefit of a shareholder, but the definition does not alter the position that the dividend has to be taxed in the hands of the shareholder alone.

48. Court Can Within The Limited Scope Of Judicial Scrutiny Under Section 11 Of The A&C Act, Examine If Claims Are Frivolous Or Meritless: Bombay High Court

Case Title: 22Light v. OESPL Pvt Ltd.

Citation: 2023 LiveLaw (Bom) 406

The High Court of Bombay held that despite the limited scope of judicial scrutiny under Section 11 of the A&C Act, the Court would refuse to appoint the arbitrator when on a prima facie scrutiny of the material on record, it can come to a conclusion that claims sought to be arbitrated are frivolous and meritless.

The bench of Justice Manish Pitale refused to appoint an arbitrator when the claims sought to be arbitrated by the petitioner were pre-mature as per the terms of the agreement.

49. Christian Members Of OBC Communities Not Entitled To Reservation Unless Specifically Included In State OBC List: Bombay High Court At Goa

Case Title: Uday Chari v. State of Goa and Ors.

Citation: 2023 LiveLaw (Bom) 408

The Bombay High Court at Goa held that Christian members of a community listed the Goa State OBC list are not entitled to reservation benefits unless the state government specifically notifies the Christian members of the community to be included in the OBC list.

A division bench of Justice MS Sonak and Justice Bharat P Deshpande set aside the caste certificate of a Zilla Panchayat member observing that the notification for including Mesta community in the state OBC list does not include “Christian Mesta”, to which he belongs.

50. Frame Policy To Regulate Celebration Of Festivals As Per Capacity Of Mumbai's Public Spaces: Bombay High Court Urges State

Case Title: Sachin D. Basare v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 412

The Bombay High Court asked the Maharashtra government to frame a comprehensive policy for public celebration of festivals in Mumbai taking into account the city's increasing population and the limited capacity of its public spaces.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla opined that the current policy does not adequately consider the potential inconveniences and traffic congestion arising from public celebrations in Mumbai's streets and squares.