Bombay High Court Annual Digest 2022: Part I [Citations 1 – 257]

Case Title: XXX vs State of Maharashtra

Case No: Writ Petition (L) NO.31015 OF 2021

Citation: 2022 LiveLaw (Bom) 1

The Bombay High Court directed the state Government to forthwith constitute medical boards based on the Amended Act on 'medical termination of pregnancy (MTP)', to easy the hardship caused to a women seeking termination of her pregnancy.

The bench observed that Section 3(2)(b) of the Medical Termination of Pregnancy (Amendment) Act, 2021 has increased the limitation to undergo medical termination of pregnancy from the earlier 20 weeks to 24 weeks. It further added that section 3(2B), in fact, carved out an exception in cases of foetal abnormalities and did not limit such termination to the 24 weeks period otherwise provided in the subsection.

'Nobody Has A Fundamental Right To A Public Holiday': Bombay High Court

Case Title: Kishnabhai Nathubhai Ghutia & Anr Vs The Hon'ble Administrator Union Territory & Ors.

Case No: Writ Petition (Civil Appellate Jurisdiction) - 9602 OF 2021

Citation: 2022 LiveLaw (Bom) 2

The Bombay High Court has held that declaring a public holiday is a matter of governmental policy, and there is nobody can claim a fundamental right to public holidays. A Divison Bench of Justices Gautam Patel and Madhav Jamdar observed, "There is no legally enforceable right that can be said to have been infringed. Nobody has a fundamental right to a public holiday."

IBC & Admiralty Act Interplay - Insolvency Proceedings Against Shipping Company Won't Bar Suit Against Vessel : Bombay High Court

Case Title: Case Title: Angre Port Private Ltd. Vs. TAG 15 (IMO. 9705550) & Anr

Case No: COMMERCIAL ADMIRALTY SUIT(L) NO. 4 OF 2020

Citation: 2022 LiveLaw (Bom) 3

In a significant judgment, the Bombay High Court has held that a Shipping Company slipping into liquidation under the Insolvency and Bankruptcy Code will not impact an ongoing Admiralty Suit against its Vessel as the two are separate entities. The judgement authored by Justice BP Colabawalla explains the interplay between the bar against further suits and proceedings under S.33 (5) of the IBC, 2016 and the Admiralty Act and the effect that insolvency proceedings would have on admiralty claims. The judgement also holds that Penal Birth Hire charger are not in the nature of a penalty and therefore damages would not have to be proved as required under Section 74 of the Indian Contract Act.

S 12 -Legal Representative Cannot Seek Compensation Under Domestic Violence Act AfterWoman's Demise – Bombay High Court

Case Title: Ms. Kanaka Kedar Sapre & Mrs. Sudha Mukund Shukla (Mother) vs . Kedar Narhar Sapre & others

Case No: Cri WP 2790 of 2021

Citation: 2022 LiveLaw (Bom) 4

The Bombay High Court ruled that an aggrieved person, as defined under the Protection of Women from Domestic Violence Act (DV Act), "must be alive at the time of filing of the petition", and someone cannot file an application for monetary reliefs under the act after her demise.

The court dismissed an application filed by a minor girl (through her maternal grandmother) "on behalf of her mother" seeking monetary reliefs, streedhan and compensation against her father and paternal grandparents.

Lok Adalat Cannot Adjudicate Disputes Relating To Offences If No Settlement Is Arrived At: Bombay High Court

Case Title: Maharashtra State Electricity Distribution Company Ltd vs. Badrinath Pema Rathod

Citation: 2022 LiveLaw (Bom) 5

In a significant judgement explaining the interplay of the Legal Services Authority Act, 1987 and the Electricity Act, 2003 a single-judge bench of the Bombay High Court noted that where a dispute brought before the Permanent Lok Adalat amounts to a compoundable offence it can be entertained by the Permanent Lok Adalat for the purpose of effecting a conciliation and settlement. But if the conciliation fails, then it is not within the power of the Permanent Lok Adalat to adjudicate the matter on merits, if it relates to an offence, despite the offence being compoundable.

COVID-Supreme Court Order Suspending Limitation Is Applicable For Refund Under GST Act – Bombay High Court

Case Title: Saiher Supply Chain Consulting Pvt Ltd v. Union of India and Anr.

Case No: WPL 1275 of 2021

Citation: 2022 LiveLaw (Bom) 6

The Bombay High Court quashed and set aside an order of the Assistant Commissioner of CGST refusing refund of GST paid by a private export company on the ground that the company's application was time barred or not filed within the limitation period prescribed under the Central Goods and Services Tax Act, 2017 (CGST) Act.

A division bench of Justices RD Dhanuka and SM Modak observed that the Supreme Court's decision from March 2020, extending the time limit prescribed under the general or special laws, for proceedings due to the Covid-19 pandemic apply in the present case.

Bombay High Court Allows Age-Barred Law Graduate To Participate In Judges Selection As Recruitments Got Stalled Due To COVID

Case Title: Rishab Murali vs State of Maharashtra & oths

Case No: WPL 156/2022

Citation: 2022 LiveLaw (Bom) 7

In an interim relief to a law graduate from Mumbai, the Bombay High Court has allowed him to participate in the ongoing recruitment process for post of Civil Judge (Junior Division)/Judicial Magistrate (First Class), despite being "age-barred."

The petitioner contended that he was age-barred as the Maharashtra Public Service Commission (MPSC) did not issue any advertisement for applications last year due to the Covid-19 pandemic.

Bombay High Court Reinstates CISF Constable Accused Of Raping Colleague's 5-yr-old Daughter

Case Title: Udaynath Tirkey vs The Director General, Central Industrial Security Force & othrs

Case No: WP 6859 of 2019

Citation: 2022 LiveLaw (Bom) 8

The Bombay High Court has held that being accused of a heinous crime is not a good enough reason not to conduct a departmental enquiry before dismissing a constable from service under Rule 39(ii) of the Central Industrial Security Force (CISF) Rules akin to Article 311(2) of the Constitution.

The court quashed the Central Industrial Security Force (CISF)'s orders regarding the dismissal of a constable for allegedly raping a colleague's five-year-old daughter. Instead, it ordered the constable's reinstatement with a rider that CISF was not barred from initiating an enquiry subsequently.

Senior Citizens Act: Bombay High Court Refuses Relief To Son Who Became Mother's Tenant & Dishoused Her Without Rent

Case Title: Suryakant Kisan Pawar vs Deputy Collector, Mumbai and others

Citation: 2022 LiveLaw (Bom) 9

The Bombay High Court directed a son who "deprived his mother from leading a normal life" to vacate the house "expeditiously", noting that the mother had suffered immensely since over five years.

Justice Girish Kulkarni observed that it was "astonishing" how the 48-year-old son had invented a novel way of entering the septuagenarian mother's house. He signed a rent agreement with her, with no intention of honouring the agreement as he didn't pay a single rupee to her until she did not approach the authorities against him.

Mercy Petitions Not Decided For Over 7 Years' : Bombay High Court Commutes Death Penalty Of Two Women

Case Title: Renuka & Anr. v. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 10

Sixteen years after the Supreme Court upheld the death penalty of half-sisters Renuka Shinde and Seema Gavit for kidnapping 13 children and murdering at least five of them, the Bombay High Court has commuted their sentence to life imprisonment, due to the 7 years, 10 months and 15 days delay in deciding their mercy petitions.

"Despite this legal position only due to the casual approach of the officers of the respondent state (Maharashtra) the mercy petitions were not decided…Though the procedure for deciding mercy petitions mandates speed and expediency the state machinery showed indifference and laxity at each stage. That it took seven years only for the movement of files of such a grave issue is unacceptable when electronic communications were available to be used."

Motor Accident Claim| 'Future Prospects' Ought To Be Allowed For Those With Notional Income: Bombay High Court

Case Title: Mulchand Dhanji Shah & Anr. V. Mr. Noordam Iraj Ahmad & Ors.

Case No: First Appeal No. 1005/2019 (Civil Appellate Jurisdiction)

Citation: 2022 LiveLaw (Bom) 11

The Bombay High Court ruled that lack of evidence supporting the income of the deceased does not justify ascertaining notional income at the minimum tier of wage in determining compensation.

It partly allowed an order of the Motor Accident Claims Tribunal, Mumbai, in an appeal against the compensation awarded to kin of a deceased of a motor accident.

Transfer Of Tenancy Does Not Amount To Creation Of New Tenancy: Bombay High Court

Case Title: Alice Realities Pvt Ltd v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 12

A Bench of Justices G.S.Patel and Madhav J.Jamdar of the Bombay High Court observed that the transfer of tenancy would not amount to the creation of a "new" tenancy under the MHADA Act and Development Control Regulations, 1991.

The Court held that in cases of mere transfer of tenancy, which is not the same as creation of new tenancy, the prohibition in DCR 33 (7) and Appendix-III would not apply. It also holds that the only concern under the Rent Act and DC Regulations should be whether a new tenancy has been created and not whether the entities which have acquired tenancy are connected to one another.

Death Caused By Stress & Strain During Employment - Bombay High Court Directs Employer To Compensate

Case Title: Smt. Harvinder Kaur Vishakha Singh vs Tarvinder Singh K. Singh

Citation: 2022 LiveLaw(Bom) 13

The Bombay High Court directed an employer to compensate the kin of a truck driver, observing that the stress and strain caused during his employment had ultimately led to his demise.

Justice NJ Jamadar held that the deceased driver's heart attack could be termed an accident arising out of and in the course of his employment, as contemplated under Section 3 of the Workman's Compensation Act.

"I am persuaded to hold that in the facts of the instant case, the death of the deceased can be said to have been accelerated on account of the stress and strain associated with the long distance driving for almost 18 days in trying circumstances. Any other view of the matter would defeat the beneficial object of the provisions contained in Section 3 of the Employees Compensation Act,1923."

IBC| Statutory Authority Can't Raise Fresh Claim Against Corporate Debtor After Approval Of Resolution Plan: Bombay High Court

Case Title: Murli Industries Limited v. Assistant Commissioner of Income Tax and Ors.

Citation: 2022 Live Law (Bom) 14

The Bombay High Court ruled that no statutory authority, including the Income Tax authorities, can raise a fresh claim against a Corporate Debtor after the Resolution Plan was finalized and approved.

A division bench of Justices Sunil Shukre and Anil Pansare of the Nagpur Bench of High Court observed that entertaining undecided claims after the Resolution Plan was submitted, would lead to uncertainty about the amount payable by the prospective Resolution Applicant who would've successfully taken over the business of the Corporate Debtor.

Unregistered Agreement Can't Be Enforced Under Employees Compensation Act To Seek Higher Compensation: Bombay High Court

Case Title: Mosa Anand Rajulu vs. M/s. V. Ships Monaco and Another

Citation: 2022 LiveLaw(Bom) 15

An unregistered agreement between an employer and employee cannot be enforced to seek more compensation than what is already prescribed for cases of disability under the Employees Compensation Act 1923 (ECA), the Bombay High Court held.

"Section 29 thus reinforces the principle that compensation is required to be paid in accordance with provisions of the Act, 1923, save and except in a case where the agreement is registered under section 28," the court held.

Section 60/61 Contract Act - If Adjustment Is Made Towards A Particular Invoice, It Can't Extend Limitation For Other Outstanding Invoices: Bombay High Court

Case Title: Anmol Steel Processors Pvt Ltd vs Colour Roof (India) Ltd

Citation: 2022 LiveLaw (Bom) 16

The Bombay High Court held that once payment is adjusted at the creditor's discretion under Section 60 of the Contract Act only to a few of the pending invoices instead of all, and the period of limitation has expired regarding all of them, the creditor then cannot claim a cheque getting dishonoured will extend the period of limitation on all pending payments.

Change Of Assessing Officer's Opinion Not Ground To Reopen Assessment U/S 147 Income Tax Act, Tangible Material Required: Bombay High Court

Case Title: Vodafone Idea Ltd v Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw (Bom) 17

In a case under Section 147 of the Income Tax Act, 1961, the Bombay High Court observed that where on consideration of material on record, one view is conclusively taken by the Assessing Officer, it would not be open to reopen the assessment based on mere change of opinion.

The Court further held that assessment can be reopened under Section 148 only on a reasonable belief that income had escaped assessment on account of failure of the assessee to disclose truly and fully all material facts that were necessary for computation of income but not in a case where the assessment is sought to be reopened on account of change of opinion of the Assessing Officer.

Completion Of Investigation Not A Condition Precedent For Eligibility Under 'Sabka Vishwas' Scheme: Bombay High Court

Case Title: Nabeel Construction Pvt.Ltd vs Union Of India And 2 Ors

Citation: 2022 LiveLaw (Bom) 18

Observing that a liberal interpretation had to be given to the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 (SVLDRS) as the intent was to unload the baggage relating to legacy disputes pre-GST era, the Bombay High Court quashed a show-cause cum-demand notice against a construction company.

Motor Accident Compensation: Claimant Entitled To Future Loss Of Income Proportionate To Extent Of Disability Though There Is No Total Loss Of Income: Bombay High Court

Case Title: Hareshwar Harishchandra Mistry v Pravin B. Nayak

Citation: 2022 LiveLaw (Bom) 19

The Bombay High Court held that while determining the compensation that the applicant would be entitled to on account of loss of future earnings, even if the applicant has not suffered total loss of income due to permanent disability. It was held that the claimant would be entitled to proportional of notional income corresponding to the extent of his disability. Accordingly, the Court enhanced the compensation awarded to the appellant-claimant from Rs.50,000 to Rs.2,70,000.

State Instrumentalities Not Having Power To Create Posts Cannot Regularise Workers: Bombay High Court Reiterates

Case Title: Raigad Zilla Parishad & Ors v Kailash Balu Mhatre & Ors

Citation: 2022 LiveLaw (Bom) 20

Bombay High Court reiterated that Standing Order 4C of the Model Standing Orders, framed under the Industrial Employment (Standing Orders) Act, 1946 cannot be invoked with reference to State Instrumentalities or such local authorities, which do not have the power of creating posts.

When an establishment cannot create posts, the declaration of ULP under Item 6 cannot be made against such establishment since temporary workers cannot be regularised, in the absence of sanctioned permanent posts.

Maharashtra Rent Control Act - Affidavit Mandatory For Application Seeking Leave To Defend Under Sec 43(4): Bombay High Court

Case Title: Laxman Dadasaheb Jagtap v Additional Commissioner, Konkan

Citation: 2022 LiveLaw (Bom) 21

In a recent case, the Bombay High Court reiterated that in the absence of an affidavit, a simple application for leave to defend would not enable a petitioner to claim benefit of Section 4 of the Limitation Act.

Section 4 of the Limitation Act provides that - Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.

'Girl Child Is Not Property That Can Be Donated': Bombay HC Disturbed At 'Danpatra' By Gangrape Victim's Father To Godman

Case Title: Shankeshwar @ Shambhu s/o Bhausaheb Dhakne vs The State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 22

A girl child is not property that can be donated, the Bombay High Court (Aurangabad Bench) observed during a bail hearing after it noticed a 'danpatra' according to which the rape victim's father had allegedly donated her to a self-proclaimed godman.

Justice Vibha Kankanwadi directed the Child Welfare Committee (CWC) to ascertain if the teen was fit to be declared as a 'child in need of care and protection' as contemplated under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act.

'CCTVs In Police Stations Deliberately Kept Non-Functional' : Bombay High Court Seeks Report From Maharashtra Govt

Case Title: Somnath Laxman Giri vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 23

The Bombay High Court took strong exception to the seemingly deliberate non-functioning of CCTV cameras inside police stations and directed Maharashtra's Chief Secretary to take "stern action" against police officers for not reporting cameras that required repair.

Not Required To Show Prejudice, Where There Is Violation Of Fundamental Rights – Bombay High Court Directs Customs To Pay Rs. 2cr For 23 Year Delay

Case Title: Sushitex Exports (India) Ltd. & Ors. Vs. The Union of India & Anr

Citation: 2022 LiveLaw (Bom) 24

The Bombay High Court directed the Customs department to refund Rs 2 crore along with an interest of 12% per annum to a fabric-exporter due to the delay of 23 years in deciding a fraud case initiated against him.

A division bench of Chief Justice Dipankar Datta and Justice MS Karnik observed while setting aside the demand notice, "While the respondents' right in law to initiate proceedings for violation of the provisions of the Act can never be disputed, at the same time they do not have the unfettered right to choose a time for its termination and conclude proceedings as per their convenience."

Consider Decentralization Of Medical Purchases For Hospitals : Bombay High Court To Maharashtra Govt

Case Title: CH Sharma & Oths Versus State of Maharashtra and others

Citation: 2022 LiveLaw (Bom) 25

The Nagpur Bench of the Bombay High Court directed the Maharashtra Government to consider de-centralizing the purchase of medical essentials for medical colleges and hospitals in the state.

"We are of the view that in the interest of efficient management of Hospitals and making available proper treatment to patients being admitted to the Government Hospitals in an effective and quicker manner, it is necessary that the Deans of these colleges are permitted to make purchases of all the medical essentials at their respective levels…" the bench observed.

"Shocking" Can't Keep A Prisoner In Solitary Confinement For More Than 14 Days - Bombay High Court Rescues Convict After 2.4 Years In Anda Cell

Case Title: Shaikh Ruheena vs The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 26

"I have forgotten how to communicate with human beings, every human feeling has been wiped out, even animals are not kept like this," Imran Shaikh a convicted prisoner in solitary confinement for 2 years and four months, had written in anguish to the Superintendent of Central Prison, Aurangabad, in vain.

Last week, the Bombay High Court's Aurangabad bench took cognisance of Shaikh's wife's letter, and directed prison official to transfer him to an ordinary prison cell with immediate effect, and ordered a team of doctors visit prison and ascertain his condition.

The court, further, directed the Chief Judicial Magistrate, Aurangabad, to visit Shaikh in prison, record his statement and report to the High Court on the condition of the Anda cell.

S.45 PMLA: Twin Conditions For Bail That Were Declared Unconstitutional By SC Stand Revived By 2018 Amendment Act: Bombay High Court

Case Title: Ajay Kumar v Directorate of Enforcement

Citation: 2022 LiveLaw (Bom) 27

A two-judge bench of the Bombay High Court noted that the twin conditions for bail in section 45(1) of the Prevention of Money Laundering Act, 2002 which were declared unconstitutional by the judgment of the Apex Court in Nikesh T.Shah Vs. Union of India (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018.

In doing so, the division bench has departed from the view earlier expressed by a single bench of the Bombay High Court in Sameer M. Bhujbal Vs. Assistant Director, Directorate of Enforcement.

Loss of Ability to Perform Work Undertaken By Workman Prior to Accident Qualifies as 100% Loss Of Earning Capacity : Bombay HC

Case Title: Reliance General Insurance Co Ltd v Keshar Gopal Singh Thakur

Citation: 2022 LiveLaw (Bom) 28

The Bombay High Court reiterated that the work that a victim was performing before the accident has relevance to the determination of the question as to whether he is permanently incapacitated to perform the work.

The Court observed that the distinction between physical disability and functional disability has to be kept in mind while determining whether the applicant has suffered 100% loss of income.

Sabka Vishwas Scheme - Enquiry Initiated After Deadline Will Not Bar Filing Of Voluntary Disclosure :Bombay HC

Case Title: UCC Infrastructure Pvt. Ltd. v. Union of India

Citation: 2022 LiveLaw (Bom) 29

The Bombay High Court ruled that initiation of investigation by the Goods and Services Tax authorities after June 30, 2019 – deadline for Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS) – cannot be a bar for the authorities to consider a declaration filed by a party under the SVLDR scheme.

Navi Mumbai based UCC Infrastructure Pvt. Ltd, had on September 9, 2019, filed an Electronic Declaration form under SVLDRS-1 on the website of Central Board of Excise and Customs website under 'voluntary category' which was rejected on the ground that investigation against the petitioner had been initiated before they opted for the said scheme.

A Company Cannot be Blacklisted without Warning of Debarment in Show Cause Notice. Blacklisting Causes Civil Death, Clear Show Cause Notice & Due Process A Must: Bombay High Court

Case Title: Ms Moonline Express Cargo Pvt Ltd vs UoI through Divisional Railway Manager

Citation: 2022 LiveLaw (Bom) 30

Observing that an entity cannot be blacklisted from participating in future contracts without being allowed a proper opportunity to defend itself and without following the due process of law, the Bombay High Court granted interim relief to a company in a contract with the Railways.

The court held that the railway officials had not given the petitioner a fair opportunity to defend his stand by failing to mention the possibility of debarment in the show-cause notice.

Subsequent Reconstruction Of File Records Doesn't Change Original Filing Date: Bombay High Court

Case Tile: Mahadev Sadhu Ingale vs The State Of Maharashtra & others

Citation: 2022 LiveLaw (Bom) 31

The limitation period for considering an appeal (reference) against a land acquisition order must be calculated from the date an application was first filed and not from the date a missing appeal copy was reconstructed and submitted by the applicant, the Bombay High Court held.

The court set aside the Deputy Collector's (Sangli) order rejecting an application to refer the acquisition proceedings to a competent court under Section 18 of the Land Acquisition Act, 1894. It observed that merely because the documents were not traceable in the Deputy Collector's office and the petitioner had to reconstruct them, it didn't mean the application was filed later.

'Employer Entitled To Carry On Business In Company's Best Interest': Bombay HC Grants Pre-Arrest Bail In Employee's Abetment To Suicide Case

Case Title: Dr. Surendra Manjrekar vs State of Maharashtra

Citation: 2022 Live Law (Bom) 32

The Bombay High Court granted anticipatory bail to former Director of a company accused of abetting the suicide of an employee, observing that all the allegations seemed to be part of "normal course of business" and that a company was "entitled to carry its business in the manner that was in the best interest of the company."

In the order, Justice Sarang Kotwal observed that the deceased, Nikhil Joshi, was taking treatment for stress management and was in a disturbed state of mind.

"Though, there are allegations that he was disturbed because of stress in the company, the company was entitled to carry its business in the manner that was in the best interest of the company. That by itself would not mean that the bigger targets were given and meeting was arranged, so that the deceased would commit suicide," the court observed.

"Mujhse Bahut Badi Galti Huwi Hai": Bombay High Court Cites Extra-Judicial Confession To Uphold Conviction as also Commute Death Penalty Of 23 Yr Old

Case Title: The State of Maharashtra vs Mohammad Aabed Mohammad Ajmir Shaikh

Citation: 2022 LiveLaw (Bom) 33

An extra-judicial confession made voluntarily, free from threat or inducement, carries the presumption of truth, Bombay High Court observed adding that depending on the facts of the case, a confession doesn't need to be presumed as weak piece of evidence.

Other considerations that weighed in with the bench were that the accused brought forth his crime by confessing to his friend, the accused's family neither tried to destroy evidence nor made attempts to conceal the accused. They also did not try to win over the friend to whom the extra judicial confession was made. In fact, the brother helped the police arrest the accused.

'Parrot-Like Testimonies Of 6 Eye Witnesses, Humanly Impossible': Bombay High Court Acquits 20 Persons In Murder Case

Case Title: Komal Babusingh Ade and others vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 34

The Bombay High Court, Nagpur Bench, acquitted 20 persons in a murder case, citing identical and parrot-like version of all the star prosecution witnesses, calling it as "humanly impossible".

A division bench of Justices Sunil Shukre and Pushpa Ganediwala, observed in the judgement, "It's difficult to believe that six eyewitnesses deposed in an identical fashion with each and every minute detail. In our considered opinion, it's humanly impossible. Not a single independent witness (except police and medical witness) was examined even when it is not the case that the incident occurred in isolation or during late night hours."

Due Caution Must Be Exercised By Appellate Court Before Reversing Acquittal Orders By Trial Courts: Bombay High Court

Case Title: State of Maharashtra v. Gulab Dattu Patil & Ors.

Citation: 2022 LiveLaw (Bom) 35

Even if the appellate court is inclined to re-evaluate and re-appreciate evidence on record to take a different approach, such interference is not justified when the trial court's view is a possible view, not marred with perversity or unreasonableness and thus, the appellate Courts must exercise a great deal of caution before disturbing the factual findings recorded by the trial court, Bombay High Court held.

Customs Duty Circular Not Applicable To 'Finalised' Benefits Under SFI Scheme: Bombay High Court Quashes Rs. 27.4 Crore Demand Notice To Essar Group

Case Title: Essar Shipping Limited Vs. Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 36

The Bombay High Court set aside a demand notice issued by the Joint Director-General of Foreign Trade (DGFT) against Essar Shipping Ltd, though the court upheld the validity of the circular under which the demand was made. The court held that the circular was restricted only to those cases where the claims were "being finalised" and therefore would not apply to Essar's case as it was already finalised by the concerned authorities.

The notice and the reminder which were set aside by the High Court sought Rs 27.40 crore from the company comprising customs duty and interest on the basis of the benefits already availed and utilised on account of its entitlement under the Served from India (SFI) Scheme.

Notaries Operating From Cars & Taxis Lowering Dignity Of Legal Profession: Bombay HC Expresses Anguish

Case Title: Dhanlaxmi Chandu Devrukar vs The Town Planning

Citation: 2022 LiveLaw (Bom) 37

In a significant order, the Bombay High Court took strong exception to several instances of malpractices by Notaries, ordered them to pay costs while also directing the Department of Legal Affairs to consider certain recommendations to the draft Notaries (Amendment) Bill, 2021.

The bench of Justices SJ Kathawalla and Milind Jadhav, which was hearing a clutch of petitions, further observed how Notaries were operating from private cars and taxis outside the Bombay High Court and said "legal profession cannot be allowed to function from the streets."

"Condition Of Income Having Escaped Assesment Not Satisfied"- Bombay High Court Quashes IT Notice Against Tata Son Ltd For 2003-04

Case Title: Tata Sons Limited vs Deputy Commissioner of Income & Ors.

Citation: 2022 LiveLaw (Bom) 38

In a judgement earlier this month, the Bombay High Court quashed a notice issued by Income Tax authorities for the financial year 2003-2004 against Tata Sons Ltd – holding company of Tata Group's Companies.

The bench observed that in case a company's income tax assessment was completed under section 143(3) and is proposed to be reopened after four years, an additional condition is required to be satisfied. Authorities need to record a satisfaction that the income escaped assessment because of the assessee's failure to disclose fully and truly all material facts necessary for assessment. Whether these jurisdictional conditions are satisfied, has to be ascertained from the reasons recorded by the Assessing Officer.

Since the notice issued to Tata did not justify the reasons to show that income had escaped assessment on account of the company's failure and reasons cited by the Assessing Officer merely showed "change of opinion" on the very same material, the notice deserved to be quashed.

Court Of Additional Sessions Judge Not Empowered To Try Offences Under IBC: Bombay High Court

Case Title: Satyanarayan Bankatlal Malu and Anr. v. Insolvency and Bankruptcy Board of India

Citation: 2022 LiveLaw (Bom) 39

In a petition challenging the jurisdiction of the Court of Additional Sessions Judge to try offences under the Insolvency and Bankruptcy Code, the Bombay High Court ruled that the Court of Additional Sessions Judge is not "Special Court" in terms of Section 236 of the IB Code to try offences under the IB Code.

Accepting the contentions of the petitioners, Justice Sandeep K Shinde clarified that the jurisdiction to try offences under the IB Code lies with the Court of Metropolitan Magistrate or Judicial Magistrate First Class established as a Special Court under Section 435 of the Companies Act, 2013 (as amended in 2017) and not with the Court of Additional Sessions Judge established under the same provision.

Arbitration | Every Violation Of Statute Not Against Fundamental Public Policy Of India, Exception Has To Be Construed Narrowly: Bombay High Court

Case Title: Aircon Beibars FZE v. Heligo Charters Private Limited

Citation: 2022 LiveLaw (Bom) 40

While enforcing a foreign arbitral award, the Bombay High Court held that violation of a statute would not necessarily violate the fundamental policy of Indian law and the fundamental policy test must be applied according to the circumstances and facts of each case.

Further stating that poor reasoning to reject a claim would not attract any public policy ground, unless the most basic notion of justice is offended, Justice A.K. Menon held that to lead to a violation of the fundamental public policy of India, a high threshold of 'egregious circumstances' like bribery, corruption or fraud and like circumstances that tamper with the most basic notions of morality and justice would apply.

Don't Register Writ Petition That Doesn't Set Out Specific Grounds – Bombay High Court To Registry

Case Title: Ambhika Magasvargiya Mastyavaivasaik Sahakari Sanstha Maryadit, Jununwadi vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 41

The Bombay High Court has directed its Registry to not register any writ petition unless the same sets out specific grounds on which the petition is being moved and warned the department of strict action if any lapse was viewed in that regard.

A division bench of Chief Justice Dipankar Datta and Justice NB Suryawanshi, sitting in the Aurangabad Bench, directed, "The Registry shall ensure that, in future, no Writ Petition is registered unless specific grounds are set out therein upon which the writ petition is moved for grant of relief, as claimed by the petitioner. Any lapse in this regard will be viewed strictly."

Despite Women Empowerment Being Motto, Deprived Authorization To Women-Self Development Groups: Bombay HC On Cancellation Of Authorisation Of Mahila Bachat Gats

Case Title: Stawan Mahila Bachat Gat vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 42

The Aurangabad Bench of the Bombay High Court recently ordered the District Supply officer (DSO) to restore authorisation of four Mahila Bachat Gats or Women Self Development Groups to maintain fair price shops.

Justice Bharati Dangre observed that their licence to run fair price shops was cancelled on "clumsy" and "non-existent" grounds and the Tehsildar to the highest level in the State government, deprived these organisations the opportunity of the empowering women in rural areas.

"I cannot refrain myself from commenting upon the approach of the State Authorities right from the level of the Tahsildar to the highest level of the State Government….. Woman empowerment being the motto of the State, in utter contrast, in this case the State Authorities have undermined the four bachat gats and in a flippant manner have deprived them an opportunity of empowering several women in rural area who had come together and formed a bachat gat who was allotted authorization to run the fair price shop.

Tax Authorities Duty Bound To Take Show- Cause Notice To Logical End Within Reasonable Time : Bombay HC Sets Aside 15 Year Old Notice

Case Title: The Bombay Dyeing and Manufacturing Company Limited vs Deputy Commissioner of CGST & CX, Div-IX, Mumbai Central GST Commissioner

Citation: 2022 LiveLaw (Bom) 43

Observing that a party cannot be expected to preserve evidence/record intact for a very long period and it cannot be made to suffer gross delay on the part of tax authorities, the Bombay High Court has set aside a show-cause notice issued 15 years back against Bombay Dyeing and Manufacturing Company Limited.

A division bench of Justice RD Dhanuka and SM Modak, in an order passed earlier this week, observed, "It is not expected from the assessee to preserve the evidence/record intact for such a long period to be produced at the time of hearing of the Show-Cause Notice. The Respondent having issued the Show-Cause notice, it is their duty to take the said Show-Cause notice to its logical conclusion by adjudicating upon the said Show-Cause Notice within a reasonable period of time. In view of the gross delay on the part of the Respondent, the Petitioner cannot be made to suffer."

"Extra Judicial Confession To a Stranger Improbable" - Bombay High Court Acquits Waiter Disbelieving Murder Confession to Customer

Case Title : Mansoorali Khan Ahmed Khan vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 44

The Bombay High Court ruled that an extra-judicial confession would be made to a person in whom the maker of that statement reposes faith, and making it to a stranger or a person to whom the maker was only acquainted, was improbable.

A division bench of Justices Sadhana Jadhav and Prithviraj Chavan, while acquitting an accused convicted in 2010, observed, "Extra Judicial confession necessarily is to be made to a person in whom the maker of the statement reposes faith. Moreover, the accused had given graphic details of the act he committed, including the role of each of the accused persons and how they had killed both the deceased. It is rather tough to accept that the accused would make an extra-judicial confession to a stranger, passing by the road, who is only acquainted."

Maharashtra Govt's CCTV Project In Police Stations A 'Farce', Rs 60 Cr Wasted : Bombay High Court

Case Title : Somnath Laxman Giri & Anr. Vs State of Maharashtra & Ors.

Citation : 2022 LiveLaw (Bom) 45

The Bombay High Court expressed its displeasure over a report submitted by the Maharashtra government on the status of installation of CCTV cameras inside police stations across the state and said the whole process was a farce and the money allotted for the project has been wasted.

A division bench of Justices S J Kathawalla and M N Jadhav noted that out of 1089 police stations, CCTV systems are installed in only 547 Police Stations since only two contractors have been selected to execute the project worth Rs 60 crore of installing CCTV systems. The court was further informed that 453 CCTV cameras which were recently installed are non-functional.

Maharashtra Govt Appoints DGP From UPSC Panel, Bombay High Court Disposes Of Advocate's PIL

Case Title: Datta Mane vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 46

High Court disposed of an advocate's PIL seeking appointment of a permanent Director General of Police in Maharashtra from the three names recommended by the Union Public Service Commission (UPSC) panel after the State appointed IPS officer Rajnish Seth as the new DGP on February 18.

The state decided to reconsider its decision after the High Court observed that the state had gone out of it's way to push the case of its senior most IPS officer - Sanjay Pandey's name for DGP.

Section 18 (2) MMC Act - In Maharashtra, Election Commissioner Can Delegate Any of His Powers to Civic Officer Above Rank of Ward Officer

Case Title: Nitesh Singh & Anr. v. Municipal Corporation of Gr. Mumbai & Ors.

Citation: 2022 LiveLaw (Bom) 47

Observing that a PIL filed by rival political party members (BJP and MNS) against the ruling Maha Vikas Aghadi coalition in Maharashtra was "politically motivated" and without "necessary disclosures" the Bombay High Court dismissed the plea and imposed costs of Rs 50,000 on the petitioner

The bench held that under Article 243ZA(2) the state is permitted to make provisions regarding election to Municipalities. In Maharashtra, the State Election Commissioner may by order delegate any of his powers and functions to any officer of the Corporation not below the rank of the Ward Officer according to section 18(2) of the MMC Act.

The High Court held that according to an SEC order from January 27, 2005 there is a bar on re-drawing the limits of a municipal corporation six months before the election. However, "The bar does not apply to alteration of Ward boundaries within the Corporation area."

Caste Certificate Can't Be Denied Saying Claimant's Lifestyle Does Not Match Traditional Community Traits; Affinity Test Not The Litmus Test: Bombay High Court

Case Title: Saurabh Ashok Nikam vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 48

Observing that affinity test is not the litmus test for a Caste Validity Certificate when family members' documents from as far back as the year 1927 show the same caste, the Bombay High Court directed issuance of caste certificate to the petitioner before the court.

"In our view, if anyone claims he belongs to a particular caste, one cannot expect that such person should use traditions and traits of that community in his day to day life, as due to modernisation, the present lifestyle of particular community may not match with traditional characteristics of their tribe community. The affinity test is not a litmus test," a division bench ruled recently.

The bench, by the abovementioned observation, also negated the Caste Scrutiny Committee's observations that the petitioners dialect of 'impure Marathi' was differed from the Thakur community's dialect. Moreover, the petitioner's festival and marriage rituals were performed the Hindu way instead of the traditional Thakur community way.

Juhu Land Acquisition Row: Bombay HC Directs BMC To Decide Amitabh Bachchan's Representation, No Coercive Action Till Then

Case Title: Amitabh Bachchan & Anr. V/s. The Municipal Corporation of Gr.Mumbai & Ors.

Citation: 2022 LiveLaw (Bom) 49

The court protected actor Amitabh Bachchan and his wife Jaya Bachchan for 11 weeks over notices for acquisition of a part of their Juhu land for road widening. This is the same plot on which their bungalow Prateeksha stands.

It directed the Municipal Commissioner to decide a February 17, 2022 representation made by the family within six weeks. If required by the petitioners or the commissioner, a personal hearing may be given, the bench said.

The Bachchans had contended that the notices fall under a section of the Mumbai Municipal Corporation Act that is inconsistent with safeguards under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and therefore void.

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

Case Title: Hiten Dhirajlal Mehta vs Bhansali Productions

Citation: 2022 LiveLaw (Bom) 50

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

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

Making Marathi Signboards Mandatory Reasonable, No Violation Of Retailers' Fundamental Rights : Bombay High Court

Case Title: Federation of Retail Trade vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 51

The Bombay High Court upheld the Maharashtra government's decision making it mandatory for all shops and establishments in the state to display signboards in Marathi written in the Devanagri script, and rejected a petition challenging the decision with cost.

"A Public purpose is sought to be achieved by the said Rule. There is a broader public purpose and rationale. Marathi may be the official language of the state government, but it is an undeniably common language and mother tongue of the state… It has its own extremely rich and diverse cultural traditions extending to every field of endeavour from literature to theatre and beyond. There are texts in Marathi which are expressed and written in Devanagri," the division bench of Justices Gautam Patel and Madhav Jamdar observed.

Bombay High Court Directs RBI To Replace Maharashtra Resident's Demonetized Notes Worth ₹1.6L With New & Valid Currency

Case Title: Kishor Ramesh Sohoni Versus Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 52

The Bombay High Court recently directed the Reserve Bank of India to replace a man's demonetized notes worth Rs 1.6 lakh with new and valid currency notes.

The division bench comprising Justice Gautam Patel and Justice Madhav Jamdar passed the order in the petition filed by Kishor Sohoni, who had deposited the said amount, in cash, with the police station, pursuant to Court orders, prior to demonetization.

After the Government of India Notification of 8th November 2016 which demonetized certain currency notes, the Petitioner said that he believed that since his cash was with an authority it was protected from demonetization. However, when the Magistrate directed the Petitioner on 20th March 2017 to collect the money from the police station, he was handed the old currency notes, all by then demonetized.

Building Collapse - Take Penal Action Against Municipal Officers Allowing Unauthorized Constructions: Bombay High Court Issues Guidelines

Case Title: High Court on its own motion (in the matter of Jilani Building at Bhiwandi) vs Bhiwandi Nizampur Municipal Corporation & Others

Citation: 2022 LiveLaw (Bom) 53

In a landmark judgement the Bombay High Court issued a slew of directions regarding action to be taken against illegal construction and in the event of building collapses. The court emphasized the need for mass public housing.

The court directed the Municipal Commissioner to take action prosecute officers found to be aiding the non-removal of illegal construction beyond six months under Municipal laws, in addition the relevant provisions of the Indian Penal Code, apart from initiating disciplinary proceedings.

It held that for any new slum project, an NOC stating that the land is not required for public purpose would be necessary. Moreover, if the land is required for public purpose, it must be cleared within a year and slum dwellers can be relocated in Mumbai and neighbouring areas.

The court also held that the MCGM, being the planning authority, was not barred from implementing provisions of the MMC Act and the MRTP Act just because an area is declared a slum. This would especially apply if the structures are dilapidated and/or in any manner unauthorized.

Ajit Pawar Breached 'Solemn Duty' By Not Disclosing Personal Interest In Lavasa Project: Bombay High Court

Case Title: Nanasaheb Vasantrao Jadhav vs State of Maharashtra and Ors.

Citation: LiveLaw 2022 (Bom) 54

Despite finding irregularities and political influence by Sharad Pawar and his family members in extending largesse to Maharashtra's only private hill station project called Lavasa, the High Court dismissed the petition challenging the project on the ground of delay.

"At this distance of time, when even Lavasa Corporation's existence is under a cloud, the contentions as raised by the amicus as well as the petitioner as regards inertia to call for tender/auction, unlawful permissions and unauthorized change of rates, in the facts of this case, are reduced to mere academic interest rather than of practical importance. The objection relating to gross delay assumes importance in view of several subsequent or intervening events after accrual of the cause of action to move the Court. Although the cause of action arose from 1996, the petitioner approached the Court for the first time in 2011, and thereafter in 2013 and finally in 2018," the bench observed.

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

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

Citation: 2022 LiveLaw (Bom) 55

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

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

Bombay High Court Pulls Up District Officials For Destroying Farmers' Crops For Mahashivratri Celebrations

Case Title: Shashikala Surendra Ambade & Ors. Versus The State of Maharashtra & Ors.

Citation: 2022 LiveLaw (Bom) 56

The Bombay High Court, restrained local State and Civic body officials in Kolhapur district from using any part of the field of a farmer for the festival of Mahashivratri on which the farmer had grown soyabean crop.

The authorities submitted that an entry in the petitioner's land records (7/12 extract) endorsed that during the Mahashivratri festival, the authorities would take possession of the petitioners' land for a period of 15 days for the festivities.

"We do not understand under which provision of law, such an endorsement is made/allowed and how the plot of the petitioners can be taken away for a period of 15 days especially when the petitioners are growing soyabean crop on the said field. Even if this practice has been adopted in the past, the same cannot be relied upon as a precedent and the Court is required to stop such practice once it is opposed by the petitioners," the court order noted.

Bhima Koregaon: Bombay High Court Allows Anand Teltumbde To Visit Nonagenarian Mother For 2 Days Following Brother's Death In An Encounter, Directed to Spend Night in Custody

Case Title: Dr Anand Teltumbde vs National Investigation Agency

Citation: 2022 LiveLaw (Bom) 57

Three months after his brother's demise in an encounter, the Bombay High Court permitted Dalit scholar Anand Teltumbde to meet his nonagenarian mother in Chandrapur on March 8 and 9, 2022 under escort protection.

The court partly allowed the application and directed Teltumbde to be taken to Chandrapur by police escorts by the afternoon of March 8, 2022. However, he has not been permitted to spend the night at home and will be taken in custody in the closest prison.

Reopening Of Income Tax Assessment Can't Be Allowed On Grounds Of Future Contingencies: Bombay High Court

Case Title: Pavan Morarka Versus The Assistant Commissioner of Income Tax – 2(3), Mumbai

Citation: 2022 LiveLaw (Bom) 58

The Bombay High Court held that the reopening of Income Tax Assessment cannot be allowed on grounds of future contingencies.

The division bench noted that the entire exercise of reassessment is only contingent on a future event and a consequence that may endure upon the decision of the Tribunal, that again if the Tribunal were to hold against the Revenue. A reopening of an assessment under Section 148 cannot be justified on such a basis. There has to be a reason to believe that income has escaped assessment.

Despite High Court Nudge, Maharashtra Govt Refuses To Withdraw Restrictions On Unvaccinated Using Local Trains

Case Title:Yohan Tengra vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 59

The Bombay High Court disposed of two PILs after the Maharashtra government said that it won't withdraw restrictions imposed on individuals on the basis of their vaccination status from boarding local trains, visiting malls or places of employment.

"In our order dated February 22, we have observed that the state, in previously issuing orders restricting travel by public transport, had imposed restrictions in a manner which had no sanction of... Having regard to gross violations in imposing restrictions since August 10, 2021, it would have been better for us to strike down the further orders passed by the state government…However, we had reposed hope and trust that SEC would take a decision which is reasonable and not in derogation of fundamental rights of citizens protected by article 19 (1) (d). We are mistaken."

Payments Towards Charter Hire Of Tugs, Barges Made To Non-Resident Assessee Assessable U/S 44BB: Bombay High Court

Case Title: Larsen & Toubro Limited Versus Girish Dave, Director of Income-tax (International Taxation)

Citation: 2022 LiveLaw (Bom) 60

The Bombay High Court held that the payments made towards charter hire of tugs and barges made to non-resident assessee in execution of contract with Oil and Natural Gas Corporation Ltd (ONGC) are assessable under Section 44BB of Income Tax Act and are entitled to special dispensation.

The bench said that the payments made by the ONGC and received by the non-resident assessees or foreign companies under the contracts were more properly assessable under the provisions of Section 44BB and not under Section 44D of the Act.

Relief To HDFC Bank: Bombay High Court Quashes Reassessment Notice As Jurisdictional Condition Not Satisfied

Case Title: HDFC Bank Ltd. Versus Assistant Commissioner of Income-tax-2(3)

Citation: 2022 LiveLaw (Bom) 61

In a major relief to the HDFC Bank, the Bombay High Court quashed the reassessment notice as the jurisdictional condition for invoking the power under section 147 of the Income Tax Act was not satisfied.

The division bench observed that once, it is held that the jurisdictional condition for invoking the power under section 147 is not satisfied for a particular assessment year, the notice for reopening cannot be sustained. Then, it does not matter that the assessee did not assailed the notice for reopening in respect of preceding or succeeding years.

'Reasons To Believe' Ought To Spell Out All Reasons, Grounds For Reopening Income Tax Assessment: Bombay High Court Comes Down Heavily On Income Tax Dept

Case Title: Tata Capital Financial Services Limited Versus Assistant Commissioner of Income Tax Circle 1(3)(1) and Ors.

Citation: 2022 LiveLaw (Bom) 62

The Bombay High Court has come down heavily on the Income Tax Department for not being transparent with tax payers in sharing the requested information basis of reopening action.

The division bench relied on the judgement of the Delhi High Court in case of Sabh Infrastructure Ltd. vs. Assistant Commission of Income Tax wherein the guidelines has been laid down on reopening cases for assessing officers (AO) for strict compliance.

As per the guidelines, while communicating the reasons for reopening the assessment, the copy of the standard form used by the Assessing Officer for obtaining the approval of the Superior Officer should itself be provided to the assessee. This would contain the comment or endorsement of the Superior Officer with his name, designation and date. In other words, merely stating the reasons in a letter addressed by the Assessing Officer to the assessee is to be avoided.

Sections 126 & 127 Of MRTP Act Require Expeditious Acquisition Of Land Reserved, Failing Which Reservation Lapses: Bombay High Court

Case Title: Jawahar Hiralal Mehta v. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 63

The Bombay High Court held that sections 126 and 127 of the Maharashtra Regional & Town Planning Act, 1966 ( "MRTP Act") require expeditious acquisition of the land reserved. Section 127 gives time to either acquire the land or take steps for acquisition within a period of twenty-four months from the date of service of notice by the land owner for purchase.

A bench noted that if Respondents failed to acquire the land within the stipulated period, then as per the provisions of section 127 (1) of the MRTP Act, the reservation clamped on the said land "automatically lapses".

Issue Norms As To How Many Times Summons Can Be Issued During Investigations: Bombay High Court Directs GST Dept

Case Title: Shalaka Infra-Tech India Pvt. Ltd. & Anr. Versus The Union of India & Ors.

Citation: 2022 LiveLaw (Bom) 64

The Bombay High Court directed the Goods and Service Tax (GST) Department to issue norms as to how many times summons can be issued during investigations.

The division bench of Justice S.M.Modak and Justice R.D.Dhanuka ordered the Department/respondents to indicate as to how many time summons were issued by the respondents to the petitioners, for what purpose and the progress of the investigation during this period. Affidavit shall also indicate as to when the investigation would be completed by the respondents against the petitioners.

Executive Power Of State Under Article 162 Constitution Not Available When Field Of Law Is Occupied By Legislative Act: Bombay High Court

Case Title: Rashtriya Shikshan Sangh and others vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 65

The power of the State Government to issue executive directions is confined to filling up the gaps or covering the area which otherwise has not been covered by the existing statutory rules, and such instructions or orders must be subservient to the statutory rules, the Bombay High Court ruled while quashing a decision to shut down three Ashram Shalas.

"The Government cannot supersede statutory rules by administrative instructions. Still, if the rules are silent on any particular point, the Government can fill the gaps by framing Rules and issuing instructions not inconsistent with the already-framed rules."

Disallowance Can't Be Made On Failure Of Assessee To Deduct TDS If Employee's Commission Shown As Part Of Salary Income: Bombay High Court

Case Title: Pr. Commissioner of Income Tax Versus Indofil Industries Limited

Citation: 2022 LiveLaw (Bom) 66

The division bench of Justice Amit B.Borkar and Justice K.R.Shriram ruled that section 192 of the said Act, unlike other TDS provisions, requires deduction of tax at source under the head "Salary only at the time of payment and not otherwise".

The issue raised was regarding disallowance under Section 40(a)(ia) of the Income Tax Act. The Assessing Officer had noted that respondent/assessee had made a provision for commission for the Chairman and the Managing Director (CMD) of the Company at the year end but not deducted TDS under Section 194H Income Tax Act. The commission was paid to the CMD in the subsequent year, i.e., during the Assessment Year 2010-2011 after deducting TDS.

Courts Need Not Hold Up Arbitration At Pre-Appointment Stage Over Insufficiency Of Stamp Duty: Bombay High Court

Case Title: Vivek Mehta & Anr. v/s. KaRRs Designs & Developments & Ors.

Citation: 2022 LiveLaw (Bom) 67

Bombay High court considered whether the arbitration should be held up at the pre-appointment stage and pre-reference stage or whether party should be left to follow the procedures post reference and be left to agitate their respective challenges.

"The ratio is clear viz. least interference at the pre-appointment stage."

Nominated Councillor Cannot Be Appointed As Leader Of The House : Bombay High Court

Case Title: Ravindra Hemraj Dhangekar V/S Ganesh Madhukar Bidkar & Ors.

Citation: 2022 LiveLaw (Bom) 68

A division bench of Justices AA Sayed and SG Dige observed that under section 19-1A of the Maharashtra Municipal Corporation Act, 1949 (MMC Act) only an elected councillor, directly elected at Ward elections, is eligible to be appointed as 'Leader of the House.'

"If the intention of the Legislature was to treat both the categories of Councillors equally and to include even a nominated Councillor to be eligible to be appointed as Leader of the House under section 19-1A, the said section would have simply said 'Councillor' and not 'elected Councillor'."

Discretion Of Any Authority Cannot Be An Arbitrary Or Unregulated; To Be Exercised Fairly: Bombay High Court

Case Title: Sanjay v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 69

The Bombay High Court recently considered the workings of the doctrine of pleasure, whereby authorities have a right to act as per their discretion. A bench of Justices S.V. Gangapurwala and S.G. Dige regarded that the doctrine of pleasure does not unable an authority to be arbitrary.

The petitioner was appointed as a part time Chairman of Aurangabad Housing and Development Board by the State Government under the Maharashtra Housing and Area Development Act, 1976, which was later cancelled. Aggrieved by this, the Petitioner submitted that as per section 7 of the said Act, his term was for three years and that powers of the State Government to remove President, Vice-President or any non-official member from his office prior to the stipulated period of three years were not unfettered and the State Government, while exercising its powers, had to notify the reasons.

The bench observed that no reason had been set out by the State Government for removal of petitioner, when the admitted position was that his removal was on account of Doctrine of Pleasure.

Principal Had No Actual Control Over Children, Can't Be Prosecuted For Cruelty Under JJ Act If Teacher Beat Them Up: Bombay High Court

Case Title: Anurag s/o Jamnashankar Pandey Vs. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 70

The headmaster of a school cannot be prosecuted for cruelty under the Juvenile Justice Act (JJ Act) for a teacher's actions merely because he heads the institution in the absence of specific allegations of assault, connivance or wilful neglect on his part, the Bombay High Court's Nagpur bench held.

Justice Avinash Gharote allowed the headmaster's writ petition and discharged him of offences under Section 75 of the JJ Act (punishment for cruelty to child).

The court rejected the prosecution's contention that the headmaster was liable because he was the head of the institution and thus had overall control over the children wherein a dance teacher had beaten a child with an iron rod during practice, causing injuries.

Bombay Asks Cab Aggregators Like Ola & Uber To Apply For Licenses Under New Motor Vehicle Rules By March 16

Case Title: Savina R Crasto vs Union Of India

Citation: 2022 LiveLaw (Bom) 71

In a sign of accountability for all cab aggregators in Maharashtra like Uber India and Ola, the Bombay High Court directed them to apply for new licences from the State Government by March 16, 2022, based on rules framed by the Central Government under the Motor Vehicles Act 1988.

The Central Government's rules – Motor Vehicles Aggregators Guidelines 2020 – will be applicable till the State's rules come into effect based on a 2019 amendment to the MV Act.

"If rejected (application and appeal), such applying aggregator shall not be permitted to carry on further activities in the state of Maharashtra," a division bench led by Chief Justice Dipankar Datta observed.

Once Parties Acknowledge Existence Of Arbitration Clause, Court Can Appoint Arbitrator Even If Stamp Duty Is Insufficiently Paid: Bombay High Court

Case Title: Pigments & Allieds Vs. Carboline (India) Pvt. Ltd. and Anr.

Citation: 2022 LiveLaw (Bom) 72

The Bombay High Court recently observed that once the parties have acknowledged that an arbitration clause was embodied in the substantive contract, insufficiency of stamps cannot prevent the court from disposing an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of arbitrators.

Justice AK Menon observed, "Arbitration is seen as a speedy remedy but if applicants and respondents who may have counter-claims, have to await the fate of adjudication of documents for stamping and conclusion of the statutory challenge, the purpose of arbitration may be defeated. In my view, once parties are ad-idem on the fact that they have signed the writing containing an arbitration clause, the parties having acknowledged that an arbitration clause was embodied in the substantive contract, cannot prevent the court from disposing an application under Section 11 and the High Court, in my view, need not await the decision of the claimant in the case at hand as to whether or not to pay stamp-duty, as adjudicated. If this is not to be so, a large number of arbitration proceedings will be held up right at the inception, which is not desirable."

Bombay High Court Dismisses Plea Against Movie 'The Kashmir Files'

Case Title: Intezar Hussain Sayed vs Zee Studios & Ors

Citation: 2022 LiveLaw (Bom) 73

The Bombay High Court dismissed a PIL seeking to stall the release of movie "The Kashmir Files" on the alleged grounds of hurting religious sentiments of the Muslim community and inflaming members of the Hindu Community with possibility of triggering communal violence. The film directed by Vivek Agnihotri features well-known actors like Anupam Kher and Mithun Chakraborty.

The bench led by Chief Justice Dipankar Datta noted that the Petitioner had not challenged the censor certificate issued by the Central Board of Film Certification (CBFC). The rule of exhaustion of an efficacious alternative remedy applies also in a public interest litigation as it does in respect of a litigation initiated in private interest.

Bombay High Court Holds Tata Motors Liable For Unfair Labour Practices, Directs To Compensate 52 Employees

Case Title: Shankar Bhimrao Kadam & Ors vs Tata Motors Limited

Citation: 2022 LiveLaw (Bom) 74

In a dispute that spanned over 17 years, the Bombay High Court held Tata Motors liable for unfair labour practices under the Industrial Disputes Act 1947 for hiring hundreds of workmen in its manufacturing unit as temporaries to deprive them of the status and privilege of permanent workmen.

Justice Ravindra Ghuge directed the automobile major to pay compensation to the 52 petitioners and set aside the Labour Court's orders. The bench observed that the company had a monitoring department to ensure temporary workers were disengaged before they completed the mandatory days of continuous employment.

"I find that the respondent-management has systematically prevented these temporaries from completing 240 days in continuous employment and had foisted involuntary unemployment on these temporaries before they could complete 240 days only to paint an imperfect picture that the work had come to an end and, therefore, these temporaries were disengaged by efflux of time, which is an exception to retrenchment u/s 2(oo) (bb)," the bench observed.

Order XXVI Rule 13 & 14 CPC | Can't Lay Down Hard & Fast Rules For Partition Of Joint Family Properties: Bombay High Court

Case Title: Basant Singh and Ors. v. Autar Kaur and Ors.

Citation: 2022 LiveLaw (Bom) 75

The Bombay High Court reiterated that the supervisory, discretionary powers conferred upon it under Article 227 of the Constitution is to ensure proper administration of justice and the same cannot be exercised merely to correct an error on facts.

"The powers of this Court under Article 227 of the Constitution are wide and the main object of it is to keep strict administration and judicial control on the administration of justice. Just because a party seeks to challenge an order of a subordinate Court merely due to some insignificant errors on facts, the discretionary powers cannot be exercised, " Justice Prithiviraj K Chavan observed.

The observation was made while dealing with a petition under Article 227, challenging the order of a single judge which had rejected the report submitted by the Court Commissioner in a case relating to partition of suit property.

Unfortunate That In Maharashtra, Two Highest Constitutional Functionaries Don't Trust Each Other: Bombay High Court

Case Title: Janak Vyas vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 76

The Bombay High Court expressed anguish that two highest constitutional functionaries in Maharashtra, the Chief Minister Uddhav Thackeray and Governor Bhagat Singh Koshyari "do not trust each other."

"The unfortunate part in Maharashtra is this that two highest Constitutional functionaries do not trust each other. You both please sit together and sort this out between yourselves. Here, the Governor and the Chief Minister, we all think, are not on the same page. But who is suffering in all of this?"

The bench of Chief Justice Dipankar Datta and Justice MS Karnik was referring to the Governor's inaction on the nomination of 12 members to the Maharashtra Legislative Council over eight months after the High Court's judgement.

Two PILs challenged certain amendments to the procedure for election of the speaker in the Maharashtra Legislative Assembly. The court lambasted the petitioners before dismissing petitions.

Excavation Of Ordinary Earth For Construction Of Building Purposes Would Not Attract Levy Of Royalty And Penalty Under The Provisions Of The MLR Code, 1966: Bombay High Court

Case Title: M/s. Royale Urbanspace and Ors. v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 77

The Bombay High Court bench of Justices SJ Kathawalla and Milind Jadhav, noted that the Supreme Court had enunciated in clear and unambiguous terms that excavation of ordinary earth for construction of building purposes/development would not attract levy of royalty and penalty under the provisions of Section 48(7) of the Maharashtra Land Revenue Code, 1966 ("MLR Code, 1966"), especially when the excavated earth has been used for levelling and development on the same plot.

The Petitioners challenged two show cause notices, both dated 29.01.2021, hearing notice dated 30.06.2021, two final notices, both dated 23.08.2021 issued by the Tahasildar, Shahapur, demanding payment of royalty and penalty of Rs.1,07,12,000/- and Rs. 5,71,35,104/- and order dated 21.10.2021 calling upon the Petitioners to deposit an amount of Rs.1,09,18,000/- under the provisions of Section 48(7) of the MLR Code, 1966. The Respondent No.2 has issued the impugned notices and passed the impugned order against the Petitioners for extraction of minor minerals unauthorisedly.

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

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

Citation: 2022 LiveLaw (Bom) 78

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

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

A division bench of Justices Gautam Patel and Madhav Jamdar, in a judgement on March 3, observed that all that the petition filed by one Rajendra Goyal seeking implementation of the State Information Commissioner's order said was that Goyal was a "social activist." The bench, however, found that one of the paragraphs somewhere inside revealed that he was a developer – in the real estate business.

Bombay High Court Upholds Single Judge Order Permitting 'Phone Pe' To File Fresh Trademark Suit Claiming Exclusivity On 'Pe' Suffix

Case Title: Resilient Innovations Private Ltd. vs Phonepe Private Limited

Citation: 2022 LiveLaw (Bom) 79

The Bombay High Court has allowed PhonePe to file a fresh suit claiming trademark infringement against Resilient Innovations, the owners of PostPe.

Earlier a single judge of the High Court had granted leave to PhonePe to withdraw its suit and file a fresh one, which was challenged before a division bench, which has refused to interfere with the single judge's order.

A division bench of Justices SJ Kathawalla and Milind Jadhav, on Friday, dismissed as not maintainable an appeal by Resilient Innovations, which owns the rival brand PostPe. The court, however, refrained from making observations on the merits of the case.

Holding Company Not Liable To Deduct TDS On The Share Purchase Transaction By Its Subsidiary: Bombay High Court

Case Title: Ingram Micro INC. vs The Income Tax Officer, (International Taxation)

Citation: 2022 LiveLaw (Bom) 80

The Bombay High Court held that even if a holding company was considered as an ultimate beneficiary of a share purchase transaction undertaken by its subsidiary company, it would still not be liable to deduct tax at source under section 195 of the Income Tax Act, 1961 if it did not make any payment to a non-resident under the transaction.

The bench, consisting of Justices KR Shriram and NJ Jamadar, ruled that the liability to deduct TDS under Section 195 of the Act is applicable only to a person who has paid any sum, or is responsible for paying any sum, to a non-resident.

The High Court observed that the conclusions drawn by the Assessing Officer (AO) regarding Ingram Micro Inc.'s liability to deduct TDS by placing reliance on the Annual Reports of the Ingram Group, which had mentioned the factum of Ingram Group's acquisition of Techpac Holdings, was misplaced. The High Court held that the comments mentioned in the said Annual Reports were with respect to the Ingram Group as a whole and were not restricted to the activity of the petitioner Ingram Micro Inc.

Reply Of The Taxpayer Not Considered: Bombay High Court Quashes Income Tax Faceless Assessment

Case Title: Pankaj s/o Roshan Dhawan Versus National e-Assessment Centre

Citation: 2022 LiveLaw (Bom) 81

Case No.: WP 1927/2021

The Bombay High Court bench quashed an income tax faceless assessment as the taxpayer's reply was not considered by the department/respondent.

The IT department has launched the Faceless Facility for income tax appeals. Under the facility, all the cases will be completed in a faceless way in a faceless environment, except for appeals that are related to evasion of tax, serious fraud, black money, international tax, and special research.

Claiming that a property is untainted would amount to an offence under section 3 of the PMLA 2002 – Bombay HC in Nawab Malik

Case Title: Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement and Ors.

Citation: 2022 LiveLaw (Bom) 82

Case No: WP 648/ 2022

In its order refusing interim release of Maharashtra Cabinet Minister Nawab Malik, the Bombay High Court observed that prima facie claiming that a property is untainted would amount to an offence under section 3 of the PMLA 2002.

The court denied Malik interim release in his habeas corpus plea challenging PMLA proceedings. The crux of Nawab Malik's counsel's arguments was on the retrospective applicability of PMLA since ED had used the amended provision of section 3 of PMLA from 2013 and an explanation is inserted in the year 2019, for the transaction of the year 2003 and 2005.

However, the bench observed that a perusal of the unamended provisions of Section 3 mention "process or activity connected with proceeds of crime" as one of the ingredients. It's a wider term and its constitutional validity is not challenged. "What we prima facie feel that projection/claiming a property as untainted property is the objectionable act forming part of an offence under Section 3 of the Act of 2002."

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

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

Citation: 2022 LiveLaw (Bom) 83

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

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

Reassessment Notice Issued Within 5 Hours Of Receiving Information, Bombay High Court Says Nothing Wrong, If There Is Application Of Mind

Case Title: Chhagan Chandrakant Bhujbal Vs ITO

Citation: 2022 LiveLaw (Bom) 84

Case No.: WP 3597/ 2019

The Bombay High Court bench upheld the validity of the reassessment notice issued within 5 hours of receiving information against Maharashtra Minister, Chhagan Chandrakant.

The court observed that the power vested in the commissioner under Section 151 of the Income Tax Act to grant or not to grant approval to the Assessing Officer to re-open an assessment is coupled with duty, and the commissioner is duty bound to apply his mind to the proposal put up to him for approval in the light of the material relied upon by the Assessing Officer. Such power cannot be exercised casually, in a routine and perfunctory manner.

Caste Scrutiny Committee Cannot Review Its Own Decision Except In Cases Of Fraud Or Misrepresentation – Bombay High Court

Case Title: Vishnu Rajaram Thakar Vs. State of Maharashtra,Through Its Secretary, Tribal Development Dept. and Anr.

Citation: 2022 LiveLaw (Bom) 85

Holding that a Caste Scrutiny Committee can review its own decision only in exceptional cases when there is any playing of fraud or suppression of material facts or misrepresentation of facts, the Bombay High Court set aside a show cause notice by the Committee seeking to review it earlier orders.

A division bench said that a quasi-judicial authority did not have statutory power to review its own decision, but judicial pronouncements, while giving the power to the Committee to review its orders in exceptional cases in the past had held, "The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.

No General Application For Directions Barring Media Reporting Of POSH Cases : Bombay High Court Clarifies

Case Title: Forum Against Oppression of Women in P vs A & Ors

Citation : 2022 LiveLaw (Bom) 86

Case No: Suit 142/ 2021

Over five months after the Bombay High Court issued certain guidelines, including barring media reporting and uploading of judgements in POSH cases, to maintain anonymity of parties, the bench clarified that its directions were 'case specific' not applicable to all matters under the Protection of Women from Sexual Harassment (POSH) Act 2013 and Rules.

As per the September 24 directions, disclosing identity of the victim, accused or witness in a POSH case is prohibited, all such court hearing must be in-camera in the judge's chamber. Moreover, none of the parties were permitted to disclose anything about the case, including its final outcome; judgements not to be uploaded on the website and no media reporting without prior permission of the court.

"The directions had to be confined to this particular case," Justice Patel said in the latest order.

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

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

Citation: 2022 LiveLaw (Bom) 87

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

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

'Patent Illegality' : Bombay High Court Sets Aside Arbitral Award Which Favoured BCCI In IPL Telecast Rights Dispute

Case Title :World Sport Group (India) Private Ltd v Board of Control for Cricket in India

Citation: 2022 LiveLaw (Bom) 88

Observing that the arbitral award of three former Supreme Court judges by 2:1 majority missed out on "huge chunks of important evidence or not even referred to it," the Bombay High Court set aside the award in favour of the Board of Control for Cricket (BCCI) in India. The court passed the order on a challenge to the award by World Sport Group (India) Private Ltd.

The court observed that while challenge to an arbitral award was not equivalent to an appeal, one of the grounds to challenge a domestic arbitral award, even after the amendment of the Act in 2015, was that it suffered from a patent illegality.

"The Supreme Court has clearly held that a decision of the Tribunal which is perverse, while no longer being a ground of challenge under the "public policy of India", would certainly amount to a patent illegality appearing on the face of the Award. The Supreme Court has inter alia held that a finding in the Award based on no evidence or an Award which ignores vital evidence in arriving at its decision, would be perverse and liable to be set aside on the ground of patent illegality," Justice Colabawalla observed in his March 16, 2022 judgement.

Mere Recovery Of Tainted Currency Not Sufficient For Conviction Under Prevention Of Corruption Act When Substantive Evidence Not Reliable: Bombay HC

Case Title: State of Maharashtra v Ajay Ratansingh Parmar

Citation: 2022 LiveLaw (Bom) 89

The Bombay High court has reiterated that mere recovery of currency notes is not sufficient to establish the guilt of an accused under the Prevention of Corruption Act, 1988, when the substantive evidence in the case is not reliable.

Justice Vinay Joshi observed,

"The law is well settled that demand of illegal gratification is the sine quo non for constituting an offence under the P.C. Act. Mere recovery of tainted currency notes is not sufficient to convict the accused when substantive evidence in the case is not reliable. The defence is to be tested on the basis of preponderance of probability and certainly not on the criteria of proof beyond all reasonable doubt."

The Court was dealing with a challenge to a judgment passed by Special Court by which the Respondent (Original Accused) was acquitted for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption ("P.C.") Act, 1988. The Court below acquitted the accused primarily on the ground of invalid sanction and improbability about the demand and acceptance of bribe amount.

The High Court took note of the inconsistencies of evidence and dismissed the appeal of the State.

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

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

Citation: 2022 LiveLaw (Bom) 90

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

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

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

JJ Act | Child Cannot Be Automatically Tried As An Adult Even If It Commits Heinous Crime: Bombay High Court

Case Title : The State of Maharashtra v Shadab Tabarak Khan

Citation : 2022 LiveLaw (Bom) 91

A single judge of the HC, held that under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 the Juvenile Justice Board has to assess a heinous offence to determine whether CCL is to be tried as an adult or juvenile.

If the child above 16 years of age, the Board has to conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, before deciding if the CCL can be tried as an adult.

"Greed, Acrimony & Deceit": Bombay HC Dismisses Contempt Plea Of Man Who Prima Facie Played Fraud On Supreme Court & High Court For Property

Case Title: Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others

Citation: 2022 LiveLaw (Bom) 92

Observing that "greed, acrimony and deceit" are clear from the son's conduct, the Bombay High Court dismissed the contempt petition he filed against his parents in connection with a property dispute and directed him pay them cost of Rs. 50,000.

The petitioner son -Manoj Kumar Dalmia- alleged non-compliance of consent terms he allegedly signed with his parents, giving him more than his share in the couple's Santacruz flat, while also permitting his family to reside there. He would also get their second flat, which was their only source of livelihood.

There was no reason whatsoever for Respondent Nos. 2 and 3 (parents) to ordinarily enter into the Consent Terms which basically seek to undo what they had been able to preserve thus far, by securing orders from this Court and the Supreme Court," a division bench noted about the "lopsided" terms.

Short Term Permit For Extraction Of Minor Minerals Can Be Granted On Application Made To Competent Authority, Public Auction Not Required: Bombay HC

Case Title : Shrikrupa Stone Crusher v State of Maharashtra and ors.

Citation : 2022 LiveLaw (Bom) 93

The Bombay High Court considered whether grant of short-term permit for extraction of minor minerals under Rule 59 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (the Rules of 2013) ought to be preceded by holding public auction or whether such short-term permit can be granted on the basis of an application made to the Competent Authority.

"it was not the intention of the State that short term permit for minor minerals should be granted by way of public auction. The mode of granting such permit on an application made has been retained."

"Shareholder cannot be restrained from calling a meeting" - Bombay High Court Sets Aside Interim Order In Favour Zee Entertainment In Battle With Invesco

Case Title: Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited

Citation: 2022 LiveLaw (Bom) 94

A division bench of the Bombay High Court allowed an application filed by US investment firm Invesco Developing Markets Fund, the largest shareholder of Zee Entertainment Enterprises Limited (Zee), against a single judge's order granting interim injunction to Zee and restraining the investor from holding an Extraordinary General Body Meeting.

1.The bench relied heavily on the Supreme Court's decision in LIC vs. Escorts wherein the SC held that a shareholder cannot be restrained from calling a meeting, such shareholder need not disclose reasons for the resolutions proposed and that the reasons for the resolution are not subject to judicial review.

2.That civil court's jurisdiction to entertain the Suit is in the teeth of Section 430 of the Act matters that fall within the domain of the NCLT.

3.Bench dealt with the consequences of ruling that a Civil Court can, in certain cases, grant an injunction restraining shareholders of a company from exercising their statutory right to call for and hold an EGM. "If we were to open this flood gate, Corporate democracy, as we understand it, would be rendered nugatory. Shareholders will be repeatedly restrained and injuncted from exercising their statutory rights…We cannot lay down a precedent resulting in such drastic consequences derailing the democratic functioning of Companies across India owing to the non-cooperative and obstructive conduct of the Board of Directors."

Bank Entitled To Proceed U/S 13 SARFAESI Act Notwithstanding That Debt Portfolio Was Assigned To It By NBFC: Bombay High Court

Case Title : Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors.

Citation : 2022 LiveLaw (Bom) 95

The Bombay High Court held that a Bank, being a "secured creditor" within the meaning of section 2(zd) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), is entitled to initiate proceedings against a debtor under Section 13 thereof, notwithstanding the fact that the assignor of debt portfolio was not a "financial institution" at the material time.

A bench of Chief Justice Dipankar Datta and Justice MS Karnik concluded that,

"initiation of action under Chapter III of the SARFAESI Act by the respondent no.1, being a "secured creditor" within the meaning of section 2(zd) thereof for the purpose of enforcing the security interest that was created earlier, is legally permissible. That the respondent no. 1 is the successor-in-interest of the respondent no.2, which was not a "financial institution" at the material time would make no difference insofar as consequence in law is concerned."

On Last Day As Bombay HC Judge, Justice SJ Kathawalla Orders ₹10 Crore Interim Compensation For 953 Fisherfolk Families Affected By Infra Project

Case Title: Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others

Citation: 2022 LiveLaw (Bom) 96

A bench led by Justice Shahrukh Kathawalla directed disbursal of ad-hoc compensation of Rs. 1 lakh to each of the 953 fisherfolk families being affected by an infrastructure project in Thane.

"As the fisherfolk and their families cannot be expected to starve till the authorities decide the quantum of compensation…" the bench observed in their order.

The court noted that the State's Draft Compensation Policy dated November 29, 2021, adopts the approach of the National Green Tribunal. According to the NGT's calculation in the matter of Ramdas Janardan Kohli on February 27, 2015, compensation for one family was pegged at Rs. 6 lakh for three years.

Shareholders Of RCFL Permitted To Carry Out A Voting Process Based On Debenture Trust Deeds In Compliance With RBI Circular: Bombay High Court Dismisses SEBI's Appeal

Case Title: Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors.

Citation: 2022 LiveLaw (Bom) 97

The Bombay High Court dismissed an appeal filed by the Securities and Exchange Board of India (SEBI) and permitted the shareholders of Reliance Commercial Finance Ltd. (RCFL) to carry out a voting process based on debenture trust deeds (DTDs) in compliance with the circular issued by the Reserve Bank of India (RBI).

The court noted that the SEBI Circular stated that it would take effect immediately on October 13, 2020.In the present case, RCFL committed defaults prior to October 13, 2020, and the ICA was executed on July 6, 2019, which are dates prior to the coming into force of the SEBI Circular and prior to the Supplementary DTD incorporating reference to the SEBI Circular.

Remuneration From Partnership Not 'Gross Receipt' For Purpose Of Audit Under Section 44AB Of Income Tax Act: Bombay High Court

Case Title: Perizad Zorabian Irani Versus PCIT And Ors.

Citation: 2022 LiveLaw (Bom) 98

The Bombay High Court ruled that remuneration received from partnership firm cannot be treated as gross receipt in profession for the purpose of compulsory audit under Section 44AB of the Income Tax Act, 1961.

The Bench held that that none of the clauses under Section 44AB envisage the situation where an assessee is carrying on both profession as well as business.

SARFAESI - Borrower Has No Right Of Hearing Before Magistrate Allows Possession Of Assets Under Section 14 : Bombay High Court

Case Title: CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors.

Citation: 2022 LiveLaw (Bom) 99

The Bombay High Court has refused to read principles of natural justice into Section 14 of the SARFESI Act and direct magistrates to put a borrower to notice before taking possession of the asset for the bank or financial institution.

"Only a post-possession right to approach the tribunal is conferred on a borrower in terms of section 17, nothing more and nothing less," the bench observed.

The court observed that principles of natural justice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFESI Act), are available to a borrower only to a limited extent and not till the secured creditor takes possession of the asset after serving a notice to the borrower and responding to it.

Bombay High Court Grants Interim Protection In Intellectual Property To RPG Enterprises Ltd. On Grounds Of Being Deceptively Similar Leading To Passing-Off

Case Title: RPG Enterprises Limited v Riju Ghoshal and anr

Citation: 2022 LiveLaw (Bom) 100

The Bombay High Court granted interim relief to RPG Enterprises Ltd, named after its founder, Mr. Rama Prasad Goenka, a known industrialist. Considering the factors such as (i) the extent of knowledge of the RPG mark, and its recognition by the relevant public; (ii) the duration of the use of the RPG marks; (iii) the extent of the products in relation to which the RPG mark is being used; (iv) the extent and duration of advertising and promotion of the RPG mark; (v) the geographical extent of the trading area in which the RPG mark is used…I am of the opinion that prima facie, the Plaintiff's RPG mark deserves protection as a well-known trade mark as the same has come to acquire a secondary meaning to connote to the public the goods and / or services emanating from the Plaintiff."

Does Minor's Severance From Hindu Undivided Family Take Place On Mere Filing Of Partition Suit Which Got Dismissed For Default? Bombay High Court To Examine

Case Title: Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others

Citation: 2022 LiveLaw (Bom) 101

The Bombay High Court is set to decide a complex position in law – will mere filing of a Partition Suit by a minor family member amount to severing of ties from a Hindu Undivided Family even if the Suit is eventually dismissed for non-prosecution while the plaintiff was still a minor, or should that minor be considered a part of HUF.

The question has come up in a case where the concerned minor, after attaining majority in March 2020, has now challenged a gift deed executed by his parents as a part of HUF while he was a minor, but, had sought partition of the property under the HUF. The property was eventually sold by another close relative who purportedly received it as a gift and a third party is in possession of the house in an eastern suburb of Mumbai.

Bombay High Court Rejects Plea To Stay OTT Release of Movie 83 On Hotstar & Netflix

Case Title: Mad Man Film Ventures Pvt. Ltd. Versus Reliance Entertainment Studios Pvt. Ltd. & Ors.

Citation: 2022 LiveLaw (Bom) 102

Observing that prima facie - Netflix Global LLC and Star India have antecedent (prior) rights to exploit the film '83' on satellite and digital media for 10 years, the Bombay High Court refused ad-interim relief to Mad Man Film Ventures Pvt Ltd to stall the film's OTT release.

The bench observed that Netflix and Star were not part of the consent terms, therefore its clauses couldn't be enforced against them. Moreover, Madman cannot seek injunction when the said rights have been acknowledged in the same document (Consent Terms) which granted Madman the rights qua the Film.

Son Can't Claim Right Or Share In Parents' Flats While They Are Alive : Bombay High Court

Case Title: Sonia Fazal Khan & Ors Versus Union of India & Ors

Citation: 2022 LiveLaw (Bom) 103

A son doesn't have any right, title or settled and enforceable share in his parent's flats till they are alive, the Bombay High Court has observed.

A division bench of Justices Gautam Patel and Madhav Jamdar rejected the son's suggestion that he has a settled and enforceable share in either of the flats in the lifetime of the real owners, his parents, as being "laughable." "The fact that he is their son does not make either of their flats 'a shared household", the bench said.

"Asif(Son) can have no right, title or interest whatsoever in either of these flats — one in his father's name and other in his mother's name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable."

Yes Bank Fraud Case: Bombay High Court Grants Bail To Avantha Group Promoter Gautam Thapar

Case Title: Gautam Thapar v/s. Central Bureau of Investigation

Citation: 2022 LiveLaw (Bom) 104

Bombay High Court granted bail to Avantha Group promoter Gautam Thapar accused in a case being investigated by the CBI regarding his alleged involvement in a loan fraud against Yes bank.

The court relied on the clarificatory decision of the Supreme Court in its order dated December, 16 2021 that " if during the course of investigation, there has been no cause to arrest the accused, merely because a charge sheet is filed, would not be an ipso facto cause to arrest the petitioner, an aspect in general clarified by us in Criminal Appeal No.838/2021 in Siddharth v/s. State of Uttar Pradesh and anr."

'Petitioner Has Reached Dot Age': Bombay HC Directs Trial Court To Complete Nonagenarian's Cross-Examination Despite Respondent's Transfer Plea

Case Title: Trilok Singh Gandhi vs Rajendra Kaushalraj Mehta

Citation: 2022 LiveLaw (Bom) 105

Giving precedence to the ripe age of a litigant, the Bombay High Court directed Small Causes Court to conclude a 92-year old's cross-examination in a dispute under the Rent Control Act, irrespective of a transfer application filed by the other side pending before the Principal Judge of that court.

Keeping in mind the age of petitioner Trilok Singh Gandhi, the court directed that his cross-examination be completed within two months of receipt of the order and directed the respondent to cooperate with the trial.

Right To Withdraw Notice Of Voluntary Retirement Before Intended Date Lost By Accepting Post-Retiral Benefits: Bombay High Court

Case Title : Sadiq Shafi Qureshi v M.D. and C.E.O., Union Bank of India and ors.

Citation: 2022 LiveLaw (Bom) 106

The High Court held that an employee who is entitled under the applicable laws to withdraw his offer of voluntary retirement before the intended date of such voluntary retirement, loses his right to do so by accepting the retirement benefits.

"We find that the petitioner's conduct of receiving various service benefits from 14.09.2017 disentitle him to the relief of reinstatement with continuity of service as prayed by him."

Threshold Of 'Public Interest' Must To Prevent Bypassing Of Civil Courts For Enforcement Of Contractual Obligations: Bombay High Court

Case Title :M/s. V.N.Reddy v The Superintending Engineer and ors

Citation: 2022 LiveLaw (Bom) 107

The Bombay High Court reiterated that a writ court should not ordinarily exercise its powers under Article 226 of the Constitution in contractual matters, unless the same is expedient in public interest.

The bench of Justices A.S. Chandurkar and G.A. Sanap took note of the Supreme Court's observations in Bharat Coking Coal Limited and others vs. AMR Dev Prabha and others, that the power of judicial review should not be permitted to be invoked in contractual disputes to protect private interest at the cost of public interest or to decide contractual disputes.

It observed, "although the threshold for the public interest to exist need not be high nevertheless it is essential to prevent bypassing of civil Courts and use of constitutional avenues for enforcement of contractual obligations."

Can Exercise Writ Jurisdiction Against Private Party That Wrongly Benefits From Inaction Of Public Authorities In Discharge Of Public Duty: Bombay HC

Case Title: Sabhajit Ramyash Yadav and ors v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 108

The Bombay High court recently came to the rescue of flat purchasers and allowed interim reliefs against private developers in writ petitions. A bench of Justices S.J. Kathawalla and Milind N. Jadhav regarded that inaction of government bodies against private developers is affecting the rights of innocent individuals. Hence, the court can exercise writ jurisdiction to protect their interests.

'Courts Exist For Convenience Of Litigants, Not Advocates': Bombay HC Rejects Bar Association's Plea Against Establishment Of Court At Wai

Case Title :Satara District Bar Association, Satara v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 109

The High Court rejected a writ petition filed by Satara District Bar Association, opposing its decision to establish the Court of an Additional District Judge and the Court of a Civil Judge in Maharashtra's Wai town. The Association had stated that the decision would put Judicial officers, staff and litigants to great difficulty.

"The real difficulty with this Petition is that it is unclear what is the legal right that the Petitioner is asserting when it says that this High Court should not consider establishing a Court at Wai. It seems to us that this is entirely self-serving...We do not deny that the Bar has a role to play in the administration of justice. We however emphatically assert that it is the interest of the litigants that is paramount and the role of the Court and all those who enable its functioning, whether Judges or lawyers, are meant to assist the delivery of justice to the litigant."

Bombay High Court Lashes Out At Hoteliers For Seeking Reduction Of Liquor License Fees Citing COVID; Dismisses Plea With One Lakh Each Cost

Case Title: Hotel & Restaurant Association (Western India) and Ors. v. Commissioner, State Excise and Ors. with connected matters

Citation: 2022 LiveLaw (Bom) 110

The Bombay High Court has dismissed a bunch of petitions seeking concessions on license renewal fees for vending foreign liquor calling them "at best, worthless from start to finish and, at worst, thoroughly irresponsible."

The court called the arguments made on behalf of the petitioners as that of "mind-numbing insensitivity" as the foreign liquor vending hotels "put themselves on the same level as the true victims who fell to the onslaught of the Covid-19 pandemic."

"We believe it is time to send a firm signal that the time of the court is not to be taken for granted, nor should there be any attempt to gamble on litigation. When a court's time is squandered on frivolous matters, there will be consequences," the bench observed.

Compassionate Appointment Exception To Rule Of Selection Procedure: Bombay High Court Grants Relief To Widow

Case Title : Smt. Varsha Deepak Desale v The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 111

The High Court came to the rescue of a widow, who was denied compassionate appointment by the Education Department in place of her deceased husband who was working as a Peon in an educational premises.

She was denied the benefit on the ground that the proposal seeking sanction to the new staffing pattern is pending with the Government. "There is no necessity to have sanction to the new staffing pattern for appointment on compassionate ground, therefore, the petition deserves to be allowed."

Either Spouse Can Claim Alimony Under Sec 25 HMA : Bombay High Court Directs Wife To Pay Maintenance To Husband

Case Title : Bhagyashri v Jagdish

Citation : 2022 LiveLaw (Bom) 112

In a rare instance the Bombay High Court upheld two orders of the civil court in Nanded, directing a wife, working as a teacher, to pay Rs 3,000 maintenance to her husband by directing the school principal to deduct Rs. 5000 from her salary towards unpaid maintenance since August 2017.

The court rejected the wife's contention that since the couple's marriage had ended with a divorce decree in 2015, after nearly 23 years, the husband couldn't now seek monthly maintenance.

Relying on Section 24 and 25 of the Hindu Marriage Act, the court said, they confer a right on the needy spouse to claim interim or permanent alimony, where a decree of restitution of conjugal rights or divorce has been passed.

Advocates Appointed By Legal Aid Or Court Exempt From Filing Certified Copies Of Judgement In Appeal: Bombay High Court

Case Title :Babi Krushna Pawar v The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 113

The Bombay High Court held that the HC Office should accept appeals filed by advocates appointed by the Legal Aid Service Authority or the court, even if the advocate fails to attach certified copies of the judgements they are challenging.

"Office to accept the papers and register the same as in other proceedings. These directions would be applicable to all Advocates who are appointed either by the Court or by the Legal Aid Services Authority. Non-filing of the certified copy of the judgment shall not be an impediment to accept the papers and register the Appeals by the office," the bench said.

Bombay High Court Quashes Reassessment Notice Against Tata Communications Transformation Services

Case Title: Tata Communications Transformation Services Versus Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw (Bom) 114

The petitioner/assessee has challenged the initiation of assessment proceedings under Section 148 of the Income Tax Act, 1961 for different assessment years. All notices for the initiation of assessment proceedings have been issued after April 1, 2021

The issue raised was whether, after the introduction of new provisions for reassessment of income by virtue of the Finance Act, 2021, with effect from April 1, 2021, substituting the then existing provisions, the substituted provisions would survive and be used for issuing notices for reassessment for the past period.

The court held that when the Income Tax Act, 1961 specifies that something is to be done in a particular manner, then, that thing must be done in that specified manner alone, and any other method of performance cannot be upheld. Hence, notices issued under Section 148 of the Income Tax Act, 1961 after April 1, 2021 must comply with the amended provisions of the law and cannot be sustained on the basis of the erstwhile provision.

"No Overt Act" - Bombay High Court Grants Bail To 10 Tribal Accused In Palghar Mob Lynching, Refuses Bail To 8 Others

Case Title- Rajal Mahadu Gurud and othrs vs State of Maharashtra & others

Citation: 2022 LiveLaw (Bom) 115

The Bombay High Court has granted bail to 10 tribals accused in the Palghar mob lynching cases of 2020 in which three people were lynched including two Sadhus. The court denied bail to eight others. Earlier, in January 2021, the special court granted bail to 89 accused in the case.

The court distinguished between those present at the site and merely involved in instigating the attackers from those who are seen assaulting the deceased in the video footage.

She observed that "no overt act" of violence is attributed to the 10 even though they are seen in the CCTV footage. "Now when the investigation is complete, their custody is not warranted and they are entitled to be released on bail."

Bombay High Court Orders 7 Days Jail For Prison Superintendent For Denying Emergency Parole To Eligible Prisoners

Case Title: Hanuman Anandrao Pendam v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 116

The Bombay High Court held the Superintendent of Central Prison, Nagpur, Anupkumar M. Kumre, guilty of contempt and sentenced him to seven days' simple imprisonment for selectively denying prisoners emergency parole during the Covid pandemic.

"If the Court finds that the Government's (officials) action in rejecting the grant of parole to a prisoner has the effect of suffocating the Articles 14 & 21 of the Constitution of India, in that case, the Court must act to restore the rule of law and respect the residuary fundamental rights of the prisoners," the court observed.

A division bench of Justices VM Deshpande and Amit Borkar refused to accept Kumre's apology, fined him Rs. 5,000 and suspended the sentence for 10 weeks, allowing him to approach the SC for relief.

Bombay HC Quashes Rape Case On The Condition That Accused & Alleged Victim Shall Do Social Service For 6 Months

Citation: 2022 LiveLaw (Bom) 117

The Bombay High Court recently quashed a rape case on the condition that the accused and the alleged victim shall extend social service for 6 months.

The bench of Justice Prasanna B. Varale and Justice S. M. Modak directed the Applicant and the alleged victim (Respondent No. 2) to obtain certificates from the respective institutes [where they have been directed to extend social services] having rendered community service satisfactorily for the period of six months.

The case was registered at the instance of the prosecutrix/alleged victim on a complaint made by her, however, later on, in Feb 2022, she filed a NOC affidavit saying that she lodged the complaint due to the compatibility issue and misunderstanding between herself and the accused-applicant.

Authority Under Maharashtra Police Act Can Extern Gang Members From Area Larger Than Where Criminal Activities Are Committed: Bombay High Court

Case Title: Sachin @ Lakhan v The State of Maharashtra and ors with connected matters

Citation: 2022 LiveLaw (Bom) 118

The Bombay High Court held that the authority under the Maharashtra Police Act, 1951 can pass externment orders directing externment of a person from much larger area than the one of his illegal activities. However, such order should be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction.

A division bench of Justices VK Jadhav and Sandipkumar C. More observed, "Even though the crimes considered for externment of the petitioners are registered only in the Camp Police Station, Ahmednagar, but considering the latest modes of transportation, it appears that the authorities below have rightly restricted the petitioners from entering into entire Ahmednagar district to prohibit their criminal activities."

Strictly Follow Motor Vehicles Aggregators Guidelines : Bombay High Court To Ola, Uber

Case Title: Savina Crasto vs The Union of India & Ors

Citation: 2022 LiveLaw (Bom) 119

The Bombay High Court asked cab aggregators, including Uber India and Ola, who were recently granted provisional licenses under the Motor Vehicles Aggregators Guidelines, 2020 framed by the Union government, to strictly follow the guidelines.

The court also asked the Maharashtra government to consider customer feedback in the nature of complaints against the aggregators to find out if there is deficiency in the grievance redressal mechanism.

The bench said it did not have the powers to legislate and order conditions for better grievance redressal to be added in the guidelines, it would however consider issuing directions.

"The deficiencies will be addressed in a time-bound manner. The state is at liberty to give suggestions to implement guidelines. The mechanism will have to be consumer-friendly," said a division bench of Chief Justice Dipankar Datta and Justice Makarand S Karnik.

Period Of Suspension Of Govt Servant Not To Be Treated As 'On Duty' Where Acquittal Based On Benefit Of Doubt: Bombay High Court

Case Title: Ravindra Prasad Munneshwar Prasad v Union of India & ors

Citation: 2022 LiveLaw (Bom) 120

The Bombay High Court, through a bench of Justices AS Chandurkar and GA Sanap, held that if a government servant is suspended on account of charges for a serious crime, then if he is acquitted by giving him the benefit of doubt, he is not entitled for regularisation of the period of suspension by treating him to be on duty. The discretion belongs to the competent authority.

In view of registration of FIR under Sections 419 and 34 of IPC against the petitioner, a worker in the in the Ordnance Factory, he was placed under suspension on 12/11/2009 under Rule 10(1)(b) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCA Rules, 1965).

In trial, the Judicial Magistrate observed that considering the nature of evidence on record the charge against the accused (petitioner) could not be proved beyond reasonable doubt. On that premise the said accused were acquitted. The Petitioner had sought revocation of suspension and regularization of suspension period as 'on duty' based on this acquittal.

Dissolution Of Marriage By Mutual Consent Permissible Under Muslim Personal Law: Bombay High Court

Case Title: Shaikh Taslim Shaikh Hakim vs The State Of Maharashtra And Another

Citation: 2022 LiveLaw (Bom) 121

Observing that a family court can dissolve the marriage of a Muslim couple by mutual consent under the Muslim Personal Law, the Bombay High Court quashed criminal proceeding against the husband based on the couple's amicable settlement in the Family Court petition.

The court noted that under Section 2 of the Muslim Personal Law (Shariat) Act 1937 all property, marriage, dissolution of marriage including mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties concerning Muslims is governed by the Act.

Moreover, the Family Court was empowered to adjudicate a suit regarding validity of a marriage or a person's matrimonial status under section 7 (1)(b) of the Family Courts Act, the bench said.

'Lamb Has To Be Protected In Fight With Lion': Bombay High Court To Extend Deadline For MSRTC Employees To Resume Duty Till April 22

Case Title: Maharashtra State Road Transport Corporation vs Sangharsh ST Kamgar Sanghatan & ors

Citation: 2022 LiveLaw (Bom) 122

The Bombay High Court said that it will order protesting employees of the State Road Transport Corporation (MSRTC) to resume work by April 22 without the fear of administrative action, while concluding hearing in a contempt petition filed by MSRTC against them for not resuming work.

"When there is a fight between the lion and the lamb, the lamb has to be protected," the bench of Chief Justice Dipankar Datta and Justice GS Kulkarni observed. The court said it would extend time till April 22 from April 15 for protesting employees to resume work.

Earlier the court had asked MSRTC if it would be willing to allow all its employees to resume work irrespective of criminal cases filed against some of them, and view the situation "compassionately" as it was a question of their livelihood.

However, senior counsel Aspi Chinoy for MSRTC on Monday said it would not be possible to do so for those employees against whom FIRs were registered for resorting to violence.

Child Adopted By A Widow Not Entitled To Inherit Her Deceased Husband's Property: Bombay High Court

Case Title : Banabai and others Vs. Wasudeo, Rajesh and ors v Parwatibai and ors

Citation: 2022 LiveLaw (Bom) 123

The Bombay High Court answered in the negative the question of whether the principle of relation back is applicable in case of a son adopted post the demise of the husband of the adopting lady.

A single judge bench of Justice Shrikant D. Kulkarni observed, "an adopted son may have rights in future in the property which the family may acquire after his adoption, with regard to the property which has vested in any particular person before his adoption, the adoption does not vest in him any rights with regard to that property."

The Bench was ceased of a property dispute whereby an adoptive son had sold properties belonging to the late husband of his adoptive mother.

Every Accused Must Not Be Present At The Spot; Can Still Be Tried As Part Of Chain Of Circumstances: Bombay High Court

Case Title: Rajendra Bhau Patole v The State of Maharashtra and anr

Citation: 2022 LiveLaw (Bom) 124

The Bombay High Court recently considered whether an FIR can be quashed against a petitioner who is not referred to as an accused in the FIR and who was not present at the spot.

A bench of Justices Prasanna B. Varale & S. M. Modak reiterated the difference between normal criminal law and crimes under of Maharashta Control of Organized Crime Act, 1999, (MCOC) stating that, "It is not always necessary that every accused must be present on the spot. There are various circumstances in the chain of circumstances. In that chain, it may happen that set of accused persons may be present at the spot, some of the accused have played a role prior to commission of offence and some of them have participated post commission of offence."

Respondent did not dispute that the present Petitioner is not being named as an accused in the FIR. However, he submitted that the investigation so far carried out discloses involvement of the Petitioner in an abetting the main assailants.

Undertrial Prisoners' Right To Health: Bombay High Court Permits DHFL Promoter Dheeraj Wadhawan To Undergo Treatment At Private Hospital

Case Title: Dheeraj Wadhawan vs Central Bureau Of Investigation And Anr

Citation: 2022 LiveLaw (Bom) 125

In a relief for DHFL promoter Dheeraj Wadhawan, the Bombay High Court allowed him treatment for a limited period at a private hospital while setting aside the trial court's order to shift him to the State-run JJ Hospital.

Justice PD Naik observed that it was a settled principle of law that an undertrial prisoner also had fundamental rights and that right to life under Article 21 of the Constitution includes the right to health.

Court May Increase Quantum Of Compensation In Motor Accident Claim, Irrespective Of Who Files Appeal: Bombay High Court

Case Title : Manager, National Insurance Co.Ltd v Shri Nilesh Suresh Bhandari and ors

Citation: 2022 LiveLaw (Bom) 126

The Bombay High court recently dealt with an appeal by an Insurance Company against the quantum of compensation awarded to an accident victim under the Motor Vehicles Act, 1988. The claimant, in the course of this appeal, raised the issue of insufficiency of the compensation awarded.

Single Bench of Justice Bharati Dangre noted that though the claimant had not filed an appeal for enhancement of compensation,

"The Motor Vehicles Act is a beneficial piece of legislation and provide for some solace to a victim, who meet with an accident or to the family of the victim who is a sufferer, when the bread-earner is disabled or succumb to the said accident. The duty of the Court in granting compensation to the victim or to his family, for its survival and meet the harness is to ensure 'just' compensation, irrespective of whether any plea in that behalf was raised by the claimant."

Writ Petitions On The Ground Of 'Exceptional Circumstances' Against Order Passed By The Arbitral Tribunal Not Maintainable: Bombay High Court

Case Title: Tagus Engineering Private Limited & Ors versus Reserve Bank of India & Anr

Citation: 2022 LiveLaw (Bom) 127

The Bombay High Court ruled that remedy against orders passed under Section 16 of the Arbitration and Conciliation Act, 1996 lies elsewhere and the petitioners, aggrieved by the orders passed under Section 16, cannot file Writ Petitions under Article 226 or Article 227 of the Constitution of India on the ground of 'exceptional circumstances'.

A bench of Justices G.S. Patel and Madhav J. Jamdar held that it is impermissible for the Court to exercise jurisdiction under Article 226 of the Constitution even on questions with respect to the jurisdictional competence of an Arbitral Tribunal, except in cases where the arbitral tribunal is a statutory tribunal created by a statute.

The High Court observed that a Writ of Mandamus was sought against the respondents, who were private financial entities, and neither of them were 'State' within the meaning of Article 12. Therefore, the Court ruled that they were not susceptible to the writ jurisdiction of the Court.

"Deserves No Sympathy": Bombay High Court Enhances Punishment, Sentences Watchman To Death For Employer's Dacoity & Murder

Case Title: Shailendrasingh Shivmurtisingh Thakur and Ors. v. The State of Maharashtra, with connected matters

Citation: 2022 LiveLaw (Bom) 128

The Bombay High Court awarded the death penalty to a watchman found guilty of dacoity and the "calculated and cold blooded" murder of his employers, a plan he executed with two of his friends and three former employees of the couple.

The bench upheld the life imprisonment awarded to five accused but enhanced watchman Shiv Kumar Saket's punishment on the State's appeal as he had "betrayed the trust of his employer."

Occupier Of Flat Entitled To Transit Rent For Period Of Dispossession During Redevelopmen: Bombay High Court

Case Title: Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. & Ors

Citation: 2022 LiveLaw (Bom) 129

The person in possession of a tenement being re-developed will be entitled to transit rent in the absence of a court order stating otherwise, even if he or she doesn't own the premises, the Bombay High Court has held.

In the present case, the HC also asked the developer to put the occupant in possession of the redeveloped property if his dispute with the flat owner is not finally decided by then.

Court Does Not Have Adjudicatory Powers Under Section 27 Of The A&C Act: Bombay High Court

Case Title: Dilip s/o. Bhavanji Shah versus Errol Moraes

Citation: 2022 LiveLaw (Bom) 130

The Bombay High Court ruled that the Court does not have the jurisdiction under Section 27 of the Arbitration and Conciliation Act, 1996 (A&C Act) to consider the legality of the reasons set out by the arbitral tribunal in its order permitting the examination of a witness.

The Single Bench ruled that once the arbitral tribunal had formed a prima facie opinion that a particular witness is required to be examined by a party in the arbitral proceedings, the reasons laid down by the tribunal in its order cannot be revisited and scrutinized by the Court, since proceeding under Section 27 of the A&C Act are not in the nature of an appeal and the Court does not have any adjudicatory powers under Section 27.

The court observed, "The fact remains that as respondent no.3 (occupier) is in possession of the tenement in question and would now be handing over possession of such tenement to the petitioner/society… The party who is dispossessed, would be entitled to the transit rent as it is such party who is put to hardship."

Provision For Seeking Adjournment Under Order XVII Rule 1 CPC Is Rule Of Procedure, Directory In Nature: Bombay High Court

Case Title: Ramesh and ors v Smt. Prakashkaur and ors

Citation: 2022 LiveLaw (Bom) 131

The Bombay High court adjudicated how Rules of procedure (in this case provision of seeking adjournments under Order XVII Rule 1 CPC) are indeed "handmaids of justice" and are meant to advance ends of justice and not to thwart or obstruct the same.

Accordingly, the court agreed to grant more opportunities for evidence to a recalcitrant Petitioner at his own responsibility, on payment of heavy costs of Rs. 1 lakh.

FIR For Obstructing Public Servant Against Param Bir's Alleged Aide Jeetendra Navlani Quashed By Bombay High Court

Case Title: Jeetendra Navlani vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 132

The Bombay HC quashed an FIR against one Jeetendra Navlani who was alleged to be connected to the former Mumbai Police Commissioner Param Bir Singh by the investigating officer of the case, Anup Dange. Navlani is a developer and owner of a restaurant & bar in South Mumbai, was booked under Section 186 IPC for causing obstruction to a public servant from performing his duty in November 2019.

The bench quashed the FIR on the grounds of contradictory witness statements. Moreover, that after the incident the police officials had not brought the Applicant to the police station nor effected arrest and a notice was issued after two days of incident to the Applicant calling upon him to give his statement, as such Applicant bonafidely believed that he is treated as a witness in the incident.

Tax Invoices Containing Reference To Arbitration, Does Not Constitute An Arbitration Agreement: Bombay High Court

Case Title: Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd

Citation: 2022 LiveLaw (Bom) 133

The Bombay High Court has ruled that acceptance of tax invoices by the opposite party, containing a reference to arbitration, does not lead to the presumption that an arbitration agreement exists between the parties.

The Single Bench held that unilateral invoices cannot bring about an arbitration agreement between the parties.

Court Can Appoint An Arbitrator During The Pendency Of An Appeal Against An Award, Set Aside On Reasons Other Than Merit : Bombay High Court

Case Title: Wadhwa Group Holdings Pvt. Ltd. v. Homi Pheroze Ghandy and Anr.

Citation: 2022 LiveLaw (Bom) 134

The Bombay High Court held that when an award is set aside for other reasons and not on merit, the parties are well within their rights to initiate fresh arbitration in respect of the same claims and pendency of an appeal against such an order is not a ground to refuse the appointment.

The Single Bench of Justice A.K. Menon has further held that an objection as to the claims being barred by Res Judicata since an appeal is pending before the Court is outside the limited scope of judicial examination permissible under S. 11 of the A & C Act. The Court held that invocation of the arbitration cannot be subjected to the fate of the appeal.

Tax Invoices Containing Reference To Arbitration, Does Not Constitute An Arbitration Agreement: Bombay High Court

Case Title: Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd

Citation: 2022 LiveLaw (Bom) 135

The Bombay High Court has ruled that acceptance of tax invoices by the opposite party, containing a reference to arbitration, does not lead to the presumption that an arbitration agreement exists between the parties.

The Single Bench of Justice G.S. Kulkarni held that unilateral invoices cannot bring about an arbitration agreement between the parties.

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

Case Title : Aparna Abhitabh Chatterjee v Union of India

Citation: 2022 LiveLaw (Bom) 136

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

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

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

Case title: ABC v. UOI and others

Case Citation: 2022 LiveLaw (Bom) 137

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

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

Bombay High Court Refuses To Stay Release Of Shahid Kapoor Starrer "Jersey"

Case Title: Rajneesh Jaiswal vs Dil Raju & Ors.

Citation: 2022 LiveLaw (Bom) 138

The Bombay High Court cited the delay on the petitioner's part in approaching the court while refusing interim relief. The court observed that "in the event prejudice is caused to the Defendant by delay of the Plaintiff in seeking ad-interim relief, Courts will not entertain such application and / or grant ad-interim relief."

Right to Fair Compensation Act | 'Land' Includes Things Attached, Benefits Arising Out Of It: Bombay High Court

Case Title : Ganesh Nivrutti Ghadge v State of Maharashtra and ors.

Citation: LiveLaw2022 (Bom) 139

The Bombay High Court dealt with a petition seeking directions to pay proper compensation in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

A bench of Justices S.V. Gangapurwala and Vinay Joshi noted that under the Act, 'land' includes everything that grows on it. It said,

"the term 'land' defined under Section 3(p) of the Act of 2013 includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Thus there is no gainsaying in contending that the factors which are not allegedly considered cannot be agitated before statutory authority."

Minister Can't Interfere In Zilla Parishad Administration and Order Teacher's Transfer Merely Because Complaint Was Also Made To Him: Bombay High Court

Case Title: Smt. Sushama Arun Patil v The State of Maharashtra and ors

Citation: 2022 LiveLaw (Bom) 140

A Rural Development Minister doesn't have the power to interfere with the affairs of the Zilla Parishad by cancelling the transfers orders of teachers merely because a teacher complained to him, the Bombay High Court ruled.

The court observed that the Minister's order directing the Zilla Parishad CEO to cancel the transfer of certain teachers was without jurisdiction, therefore the CEO's subsequent order complying with the Minister's direction would be bad-in-law.

Appeal Against CESTAT Order, On Classification Of Goods, And Determination Of Customs Duty Lies Before The Supreme Court: Bombay High Court

Case Title: The Commissioner of Customs II versus Axiom Cordages Ltd

Citation: LiveLaw2022 (Bom) 141

The Bombay High Court ruled than an appeal from an order passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), involving the question with respect to classification of goods under the Customs Act, 1962, would lie before the Supreme Court under Section 130E of the Customs Act, since it is primarily related to determination of the rate of customs duty applicable.

The Bench held that to determine whether there was a short levy of customs duty under Section 28 of the Customs Act, 1962, the revenue department has to decide the classification of goods in order to ascertain the rate of customs duty to be levied, therefore an appeal involving issues relating to Section 28 of the Customs Act was maintainable only before the Supreme Court.

Only PCIT Can Sanction Reassessment Notice After Expiry Of 4 Years, Not ACIT: Bombay High Court

Case Title: J M Financial and Investment Consultancy Services Private Limited Versus Assistant Commissioner of Income Tax

Citation: LiveLaw (Bom) 142

The Bombay High Court held that after four years of expiry from the end of the relevant assessment year, only the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner (PCIT) can accord the approval to the reassessment notice and not the Additional Commissioner of Income Tax (ACIT).

The court said, "even if for a moment we agree with the view expressed by the Principal Commissioner of Income Tax, it still applies to only cases where the limitation was expiring on March 31st, 2020. In the case at hand, the assessment year is 2015-2016 and, therefore, the six years limitation will expire only on 31st March 2022. Certainly, therefore, the Relaxation Act provisions may not be applicable. In any event, the time to issue notice may have been extended, but that would not amount to amending the provisions of Section 151 of the Act."

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

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

Citation: 2022 LiveLaw(Bom) 143

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

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

Non-Custodial Parent Can't Be Deprived Of Right To Spend Quality Time & Enjoy Company Of Children: Bombay High Court

Case Title: Gaurav Suresh Tingre v Priyanka Gaurav Tingre

Citation: 2022 LiveLaw (Bom) 144

The Bombay High Court observed that non-custodial parent cannot be deprived of his right to spend quality time and enjoy the company of the children. Moreover, the children also have right to love and affection of both parents as well as grandparents.

Justice Anuja Prabhudessai stated, "the children also have right to love and affection of both parents as well as grandparents. This is essential for personal development and overall well-being of the children."

The Single Judge permitted the Petitioner-father to four days' access to the children and referred the matter for mediation so that the parties may arrive at an amicable settlement.

Number Of Students In Govt Aided Schools Inflated To Divert Public Money: Bombay HC Seeks Action Against Culprits, Appoints Committee To Curb Malpractices

Case Title: Brijmohan Dhirajprasad Mishra v The State of Maharashtra and Others

Citation: 2022 LiveLaw (Bom) 145

The Bombay High court recently constituted a committee to curb alleged malpractices in the Maharashtra Education Department while asking the government to continue its belated efforts to remedy the situation by recovering monies.

A bench of Justices Ramesh Dhanuka and Sanjay Mehare appointed a three-member committee on the issue of alleged practice of showing inflated student strength so as to appoint more teachers in aided and private schools.

The petitioner alleged that the numbers of students shown to have been admitted by various schools are inflated by large number of schools in connivance with some of the officers of the State Government who are empowered to grant sanction for grant-in-aid and other facilities to these schools for imparting education to these students resulting in fraudulent diversion of crores of rupees of public money.

Court Lacking Jurisdiction To Appoint An Arbitrator, Cannot Do So Based No Objection By The Opposite Party: Bombay High Court

Case Title: Purushottam s/o Tulsiram Badwaik and Ors. versus Anil s/o Hariram Malewar and Ors.

Citation: 2022 LiveLaw (Bom) 146

The Bombay High Court ruled that a Court cannot appoint an Arbitrator when the only proceeding before it is an application for grant of interim measures under Section 9 of the Arbitration and Conciliation Act, 1996, solely on the ground that the opposite party has not objected to the appointment of an Arbitrator.

A single bench of Justice Manish Pitale held that even if an arbitration clause exists, appointment of an Arbitrator can only take place in accordance with the law. The Court added that merely because no objection is endorsed by the opposite party, a Court will not be foisted with the jurisdiction to appoint an Arbitrator.

Bombay High Court Orders Issuance Of Provisional Caste Certificate For Higher Studies While Student's Uncle's Caste Certificate Is Under The Scanner

Case Title: Akanksha Babasaheb Shinde v State of Maharashtra and ors

Citation: 2022 LiveLaw (Bom) 147

The Bombay High court held that till final withdrawal of caste certificate of Petitioner's uncle by the competent authority, she is entitled to benefits sought for by relying upon the said Certificate.

A bench of Justices Sunil B. Shukre and G.A. Sanap noted that even though there are genuine concerns regarding the validity of the Petitioner's uncle's caste certificate and the same is under reconsideration, yet until it not withdrawn, the Petitioner is entitled to benefits accruing from it.

Dept. To Decide Whether Corrected Form TRAN-1 Would Be Entertained As Per Transitional Provision Under GST: Bombay High Court Allows Taxpayers To Correct Form TRAN-1

Case Title: Ambica Fertilisers Versus The Union of India

Citation: 2022 LiveLaw (Bom) 148

The Bombay High Court bench of Justices R.D. Dhanuka and S.G. Mehare allowed the taxpayers to correct Form TRAN-1. The court directed the department to consider the issue of whether Form TRAN-1 and other forms that would be filed or corrected by the petitioner can be entertained in accordance with provisions of section 140 of the Central Goods and Services Tax Act, 2017 and Rule 117 (1) of the Central Goods and Services Tax Rules, 2017 or not.

The petitioner/assessees filed Form TRAN-1, but inadvertently did not claim approximately Rs. 13,17,956 on the Form TRAN-1. There was no option available to the petitioner to revise the Form TRAN-1 after December 27, 2017. There was also a further condition of revising the form only once before the due date. The form TRAN-1 was not accepted. According to the petitioner, since the petitioner missed out on the claim of approximately Rs. 13,17,956, the petitioner prayed for permission by making a representation to correct the said mistake, which was not allowed.

Motor Accident Claim | Can't Compute Compensation On Basis Of 45% Permanent Disability In Case Of 100% Functional Disability: Bombay HC

Case Title: Akshay @ Vikas Ramesh Chavan vs Kailas Vitthalrao Shinde and ors

Citation: 2022 LiveLaw (Bom) 149

The Bombay High court held that the Motor Accident Tribunal at Aurangabad has committed an error in accepting the permanent disability of the claimant of a motor accident at 45% when it is a case of 100% loss of earning capacity due to amputation of leg.

Single judge Shrikant D. Kulkarni also awarded Rs 1 lakh compensation for loss of marriage prospects and another lakh for loss of happiness, amenities and entertainment of life.

"Will Impact Students & Staff": Bombay High Court Refuses Closure Of Only Engineering College In Gondia District Of Maharashtra

Case Title: Barun Kumar and Ors v. The State of Maharashtra and Ors., and connected matters

Citation: 2022 LiveLaw (Bom) 150

In a victory for the employees and students, the Nagpur Bench of the Bombay High Court refused to grant closure permission to the only engineering institute in Gondia district of Maharashtra, observing that the management doesn't have an unfettered right to close down an institution at will as the closure would impact the education/studies and staff employed therein.

A division bench of Justices Nitin Jamdar and Anil Pansare, in a judgement on Tuesday, upheld the Vice-Chancellor of University's order, rejecting the closure permission sought by the management of the Manoharbhai Patel Institute of Engineering and Technology – established and run by the Gondia Education Society since 1983-84.

According to the institute's website, Varsha Patel is the president of GES. She is the wife of former union minister Praful Patel and daughter-in- law of late philanthropist and politician Manoharbai Patel.

Transfer Of Tribal Land Impermissible Without Collector's Permission Even If Land Transferred To Another Tribal: Bombay High Court

Case Title: Vijay Anandrao Moghe and ors v The Additional Collector/Sub-Divisional Officer and ors

Citation: 2022 LiveLaw (Bom) 151

The Bombay High court recently observed that provisions of Section 36(2) of the Maharashtra Land Revenue Code (Code) do not make any distinction based on the status of the purchaser or transferee. Hence, transfer of tribal land is impermissible without Collector's permission even if the land is transferred to another tribal.

Single Judge Rohit B. Deo stated that, "The Legislature has in its wisdom not exempted tribal to tribal transfer from the requirement of previous sanction from the Collector. Presumably, the Legislature was conscious of the fact that a tribal is vulnerable and could possibly be exploited or induced to part with the agricultural land even by a fellow tribal who is in a more dominating position in life. It is precisely to prevent such exploitation that the previous sanction of the Collector is statutorily mandated."

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

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

Citation: 2022 LiveLaw (Bom) 152

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

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

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

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

"No Room For Arrogance, No License To Intimidate The Court": Bombay HC Reprimands Advocate Over Allegations Of Bias, Delayed Hearing

Case Title: Dipak Kalicharan Kanojiya v. State of Maharashtra and anr.

Citation: 2022 LiveLaw (Bom) 153

The Bombay High Court observed that while an advocate's frustration over a delayed hearing was understandable, but it didn't give them a license to intimidate the Court and make reckless allegations against a Judge polluting the very fountain of justice.

Justice Anuja Prabhudessai reprimanded a lawyer for making allegations of "partiality" and "unfairness" against the court during a bail hearing and said that the advocate's conduct was "unbecoming of an advocate".

"An advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and to pollute the very fountain of justice."

'Seriousness & Severity Of Crime Would Remain Till Such Time The Accused Is Pronounced Not Guilty': Bombay HC While Rejecting Varavara Rao's Bail Plea

Case Title: P Varavara Rao v. National Investigation Agency

Citation: 2022 LiveLaw (Bom) 154

Refusing to grant permanent bail on medical grounds to Bhima Koregaon - Elgar Parishad accused poet Varavara Rao the Bombay High Court said that prima facie observations regarding "seriousness and severity" of the crime he is accused of would remain till he is pronounced "not guilty."

Therefore, based on Rao's sound clinical summary dated December 15, 2021, and the allegations against him of being the "main conspirator," he was not entitled to medial bail, the court held.

"Seriousness and severity of the crime would remain till such time the accused is pronounced not guilty of the crime alleged to have been committed by him. Role attributed to the accused is serious. He is one of the main conspirators. Therefore, in our opinion, on the medical ground the accused is not entitled to get bail", a division bench of Justices Sunil Shukre and GA Sanap observed.

Delay In POCSO Cases Benefits Accused, Minor Victim May Forget Incident With Passage Of Time: Bombay HC Issues Directions For Expeditious Trial

Case Title: Atul Gorakhnath Ambale Versus The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 155

The Bombay High Court observed that delay in trials in cases of sexual abuse often lead to re-victimization and ignominy, as the trial process itself makes the victim re-live the horrific experience and in cases of small children, due to their vulnerability, it may lead to further trauma.

Single judge Revati Mohite Dere said,"this Court has come across several cases, where the child/victim's evidence is not recorded for years and hence, it would be appropriate to issue some directions to the trial Courts conducting cases under the Protection of Children from Sexual Offences Act ('POCSO')."

'Inferences About Victim's Conduct May Need A Revisit' : Bombay High Court Grants Leave To State To Appeal Against Tarun Tejpal's Acquittal

Case Title: State of Goa vs Tarun Tejpal

Citation: 2022 LiveLaw (Bom) 156

Noting that certain observations by the trial judge about rape victim's conduct need to be revisited, the Bombay High Court (Goa Bench) granted leave to the State of Goa to appeal against the order acquitting Tarun Tejpal in a 2013 sexual harassment case.

The Court rejected Tejpal's preliminary objections against the State's leave to appeal.

A division bench of Justice MS Sonak and RN Laddha also observed that inferences against the victim regarding legal consultation also needed to be looked into.

"Based on this evidence, perhaps, some of the learned Additional Sessions Judge inferences about the victim's conduct may also need a revisit. The inference from the victim's conduct of consulting some lawyers before lodging her complaint may also require a revisit. Finally, the contention about the alleged admissions in the messages or the proper scope of such statements also requires consideration. These are brief reasons, not intended to be exhaustive for a moment", the bench said in the order.

Court Can't Grant Interim Relief Under Section 9 Of A&C Act, If The Contract Is Determinable: Bombay High Court

Case Title: Chetan Iron LLP v. NRC Ltd.

Citation: 2022 LiveLaw (Bom) 157

The Bombay High Court held that an application for interim relief in the form of specific performance of the contract would not be maintainable when the nature of the contract is determinable.

A single bench of Justice G.S. Kulkarni held that specific performance cannot be granted in respect of an agreement that can be terminated by either of the parties without assigning any reasons. It held that Section 14(1)(c) and Section 41(e) of the Specific Relief Act would be attracted when the interim relief for specific performance is prayed for in respect of an agreement that is in its nature determinable.

Seized Foreign Liquor Emptied Into Nearest Nallah? Bombay HC Startled At Excise Procedure Of Destroying Contraband

Case Title: Vikramjeetsingh Dhall Proprietor of Dhall Foods and Beverages vs The Collector of Mumbai (City) & Ors

Citation: 2022 LiveLaw (Bom) 158

Startled at a statement made by the Maharashtra State Excise Department that it will destroy seized foreign liquor by emptying it "into nearest available nallah (stream)," the Bombay High Court directed the officials to act prudently, cautiously and in accordance with law, while doing so.

"We expect the Excise Department to act prudently, cautiously and in accordance with law. If this means that the Excise Department must get clearance from a Pollution Control Board then so be it. In its anxiety to destroy this liquor, the Excise Department must not endanger the larger public health," directed a division bench of Justices Gautam Patel and Madhav Jamdar earlier this month.

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

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

Citation: 2022 LiveLaw (Bom) 159

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

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

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

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

Boarding Crowded Mumbai Local Train A "Calculated Risk"; Not A "Criminal Act" : Bombay HC Awards Compensation To Injured Passenger

Case Title: Nitin Navindas Hundiwala vs Union of India, through the General Manager, Western Railway

Citation: 2022 LiveLaw (Bom) 160

The Bombay High Court observed that boarding a crowded train for a Mumbaikar was a 'calculated risk' not a 'criminal act' and directed the railways to pay over Rs 3 lakh compensation to a septuagenarian who slipped and fell right after boarding a crowded train in 2011.

Justice Bharati Dangre set aside the Railways Claims Tribunal's order rejecting the senior citizen's claim and held that the incident would fall within the meaning of "untoward incident" under Section 123 (c)(2) of the Railways Act.

"If in the daily chores, a passenger attempts to gain an entry, into an overcrowded train and is pushed by other passengers, resulting into his fall, there is no reason why such incident cannot fall within the ambit of 'untoward incident' and [it] wasn't an instance wherein the Railways were exempt from liability."

Bhima Koregaon Case : Bombay High Court Dismisses Gautam Navlakha's Plea To Shift Him To House Arrest

Case Title: Gautam Navlakha vs National Investigation Agency

Citation: 2022 LiveLaw (Bom) 161

The Bombay High Court dismissed a petition by senior journalist Gautam Navlakha seeking to shifted out of Taloja Prison and be placed under house arrest, instead, in the Bhima Koregaon – Elgar Parishad Caste violence case.

A division bench of Justices Sunil Shukre and GA Sanap said that whatever grievances Navlakha had in prison could be placed before the trial court for appropriate action.

"Petitioner would be at liberty to bring to the attention of presiding officer of special NIA court the grievances in respect of difficulties faced by him and the said officer directed to ensure grievance redressed within parameters of law."

Merely Because An Application Under Section 7 Of IBC Is Filed, It Is Not An Embargo On The Court Exercising Jurisdiction Under Section 11 Of The A&C Act: Bombay High Court

Case Title: Jasani Realty Pvt. Ltd. v. Vijay Corporation

Citation: 2022 LiveLaw (Bom) 162

The High Court of Bombay has held that merely because an application under S.7 of IBC is filed before the adjudicating authority which is pending consideration does not oust the jurisdiction of the High Court to entertain an application filed under S. 11 of the A&C Act.

The Single Bench of Justice G.S. Kulkarni held that an application filed under S.7 of the IBC creates an erga omnes effect or involves third party rights only after it has been admitted by the adjudicating authority, however, before its admission, there is no embargo on the power of the court to decide on an application filed under S.11 of the A&C Act for the appointment of an arbitrator.

Evidence Of Last Seen Together By Itself Not Conclusive That Death Was At Hands Of Accused: Bombay High Court

Case Title: Ganesh V/s. The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 163

The Bombay High Court recently observed that the evidence of 'last seen together' by itself would not lead to the conclusion that the death was at the hands of the accused.

Justices Sadhana S. Jadhav and S.G. Dige observed that there was enough evidence to show that the accused, Ganesh, had abandoned the deceased, Sanjay, after the incident and the fact that they were together by itself won't contribute to the allegation that the death was at the hands of the accused.

"Arrogant, Incomprehensible Conduct": Bombay High Court Judge Bars Lawyer From Appearing Before His Bench In Any Matter

Case Title: Farhad Ginwalla & Anr. VS. Zenobia Poonawala & Ors with connected matters.

Citation: 2022 LiveLaw (Bom) 164

Justice GS Kulkarni of the Bombay High Court has directed a lawyer not to appear in any matter before him following the advocate's "incomprehensible" and "most arrogant" conduct in a clutch of applications pertaining to an arbitration dispute.

The court stopped short of initiating contempt proceedings against advocate Premlal Krishnan considering his career, following a written apology cum undertaking not to repeat his disrespectful conduct in the future.

"Such an apology is being accepted, however with a caution that in no court Premlal Krishnan, shall breach the assurance which is set out in the undertaking/affidavit…"

Son Not Expected To Brand His Father As 'Swindler': Bombay High Court Upholds Eviction From Self-Acquired House Of Elderly Parents

Case Title: Namdeo and Anr. v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 165

The Bombay High Court evicted a son from the self-acquired house of his parents and held that a son cannot claim that his parents have lost mental balance.

Justice Rohit Deo observed that, "In the conservative Indian society, a son is not expected to brand his aged father a 'swindler' or then allege that the aged parents have lost mental balance. The allegations that the aged parents have been physically assaulted, that the other son was also assaulted and that visitors are prevented from entering the residential house, are not specifically traversed."

It was further observed that the emotional and physical well-being of the aged parents cannot be ensured unless the petitioners vacate the self-acquired residential house.

Shemaroo Films' Copyright Infringement Suit: Bombay High Court Grants Interim Injunction Against News Nation, Suspects Defence Of 'Fair Use'

Case Title: Shemaroo Entertainment Limited vs. News Nation Network Private Limited

Citation: 2022 LiveLaw (Bom) 166

The Bombay High Court regarded that the defence of de minimis and fair use has to be seen through the prism of the fact that the parties involved, Shemaroo Entertainment Limited and News Nation Network, had entered into an agreement for a non-exclusive license.

The suit was filed by Shemaroo, which is primarily involved in film production, after premature termination of its non-exclusive licensing contract with News Nation, alleging that the latter continued to exploit its content sans an agreement.

In this background, Justice N. J. Jamdar observed, "It is not the case of the defendant that there was a qualitative change in the nature of the exploitation; during the continuance of license agreement and post termination. If for an identical activity, the defendant had obtained license for valuable consideration, on first principles, these defences (of de minimis and fair use ) may not be readily available to the defendant."

Employees Can't Seek Condonation Of Interruption In Service For "Enhancing" Pension: Bombay High Court

Case Title: Muktabai and ors v State of Maharashtra

Citation: 2022 LiveLaw (Bom) 167

The Bombay High court recently sought to answer whether an employee can seek condonation of interruption in service to "enhance" the pension, where the employee already has qualifying service for pension.

A bench of Justices RD Dhanuka and SG Mehare stated that, "the purpose of condoning the interruptions in service is to make an employee entitled to the pension by adding the days of his service and not to enhance the pension for the reason that the pension is to be calculated and paid on the basis of the last salary drawn on the substantive permanent post."

Kopardi Rape Case: Bombay High Court Permits Convicts To Pursue Academics In Jail

Case Title: Nitin Gopinath Bhailume and anr. V The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 168

The Bombay High Court welcomed the desire expressed by two convicts in the Kopardi rape and murder case to pursue further studies in jail.

A bench of Justices Prasanna B. Varale and SM Modak allowed the petitions even as their death penalty is pending confirmation.

The duo, Jitendra Shinde and Nitin Bhailume were convicted in November 2017 for the rape and murder of a minor at Kopardi village in 2016. Advocate Rebecca Gonsalvez representing them said the two now wanted to pursue their academic career even though they are lodged in Yerawada Central Jail, Pune, by seeking admission to Open Universities.

Agreement On The Name Of The Arbitrator Would Not Amount To A Waiver Of Notice Under Section 21 Of The A&C Act: Bombay High Court

Case Title: Malvika Rajnikant Mehta & Ors v. JESS Construction

Citation: 2022 LiveLaw (Bom) 169

The High Court of Bombay held that simply because the arbitration agreement provides for the name of the arbitrator, the same would not amount to a waiver of notice under Section 21 of the A&C Act.

The Single Bench of Justice N.J. Jamadar held that the use of the word "Unless otherwise agreed by the parties" in Section 21 means that the parties can dispense with the requirement of giving a notice of arbitration, however, the mere fact that the parties have named the Arbitrator would not imply that the parties have agreed to waive the requirement of the notice contemplated under Section 21 of the Act.

Assessee Deprived Of Refund Due To Wrongful Withholding Of Amount By Income Tax Dept.:Bombay High Court Imposes 6% Interest

Case Title: Sanjeev Kumar Versus UOI

Citation: 2022 LiveLaw (Bom) 170

The Bombay High Court bench of Justice S.G. Mehare and Justice R.D. Dhanuka has allowed 6% interest to the assessee on wrongful withholding of the amount by the income tax department.

Based on orders passed by the Supreme Court and Delhi high Court the bench said that "the assessee who is deprived of refund of their amount in view of wrongful withholding of their amount by the authority cannot be refused to compensate for such wrongful deprivation of their amount lying with the authority for no fault of the assessees."

Bombay High Court Decides Man's Appeal A Year After He Completed Punishment Of 10 Yrs Imprisonment, Reduces Sentence

Case Title: Mohd. Luthpura Vajidali Shaikh vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 171

The Bombay High Court decided a labour contractor's appeal, a year after the 30-year-old man had served his complete 10-year-sentence and was released from the central Prison.

The bench of Justice PD Naik upheld Luthpura Shaikh's conviction only for seven years regarding possession of counterfeit currency (489-B of IPC) and acquitted him for graver charges attracting the 10-year-sentence.

'No Legally Enforceable Right Infringed': Bombay High Court Dismisses Plea To Prohibit Newspapers From Publishing Pictures Of Gods & Goddesses

Case Title - Adv. Firoz Babulal Sayyed Vs. The Union of India & Anr.

Citation: 2022 LiveLaw (Bom) 172

The Bombay High Court dismissed an Advocate's PIL seeking directions for a policy restricting publication of photographs of gods and goddesses in the newspapers as they ultimately land up in the garbage bin.

The bench held that the matter was entirely within the domain of the legislature, or to a limited extent, within the domain of the executive. The bench restated, that a writ petition would lie only if a legally protected right, which is judicially enforceable, is abrogated or infringed or is threatened to be abrogated or infringed by arbitrary executive action.

Bombay High Court Rejects Review Plea Seeking Default Bail To Varavara Rao, Vernon Gonsalves & Arun Ferreira

Case Title: Dr P Varavara Rao & othrs vs State of Maharashtra and othrs

Citation: 2022 LiveLaw (Bom) 173

The Bombay High Court held re-hearing of the matter on a point which was not at all urged, is impermissible in law, under the guise of review. Nor can review be claimed or asked for merely for a fresh hearing or canvassing a totally new submission.

The bench thus rejected a review application filed by three accused in the Bhima Koregaon – Elgar Parishad Case seeking default bail alleging factual corrections in the order refusing them default bail.

The fact that the accused had also filed for default was not argued before the court.

"We, therefore, find it difficult to accede to the submission on behalf of the applicants that a factual error had crept in… It is trite that disguised as a review, it is not permissible even for an erroneous decision to be, "re-heard and corrected".

2008 Indian Mujahideen Case: 14 Yrs On, Bombay High Court Orders Re-Adjudication Of Accused' Plea To Drop MCOCA Charges

Case Title: Mubeen Kadar Shaikh Versus State of Maharashtra, and connected matters

Citation: 2022 LiveLaw (Bom) 174

The Bombay High Court has directed the Special Court to re-adjudicate the plea of an accused seeking to drop charges under the Maharashtra Control of Organised Crime Act (MCOCA) against 23 men arrested over 13-14 years ago in the Indian Mujahideen Case.

A division bench observed that an application seeking to drop certain charges was pending before the trial court when charges were framed in 2013 and the court couldn't have framed charges before disposing of the application.

Continuity Of Proceedings Will Be 'Abuse Of Process': Bombay High Court Quashes Cheating FIR Against Indiabulls

Case Title: Indiabulls Housing Finance Ltd. and Ors. v. State of Maharashtra and Anr. , with connected matter

Citation: 2022 LiveLaw (Bom) 175

The Bombay High Court recently allowed a plea by Indiabulls Housing Finance Limited (IHFL) seeking to quash a FIR lodged by a shareholder against the company and its promoters, alleging cheating, criminal breach of trust. The Court also quashed a Magistrate Court's order, directing registration of FIR.

The bench was of the view that the Magistrate was influenced by the length of the complaint, and arrived at a conclusion that there was a diversion of huge monetary funds to the tune of Rs. 300 crores and the money was transferred to other country i.e., Mauritius.

"Admittedly, it was only allegations in the complaint and except bare words of the complainant there was no other material before the Magistrate to form such an opinion as such, there is merit in the submissions of learned Senior Counsel Mr. Rohatgi that the Magistrate without applying his mind passed mechanical order under Section 156(3) of Code of Criminal Procedure."

Section167(2) CrPC- Investigating Agency Can't Curtail Accused' Right To Default Bail By Invoking Graver Charges: Bombay High Court

Case Title: Alnesh Akil Somji Versus The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 176

The Bombay High Court has clarified that an investigating agency cannot thwart the right to default bail of an accused by merely invoking graver charges.

It opined that the Court, while considering the plea for default bail, would be required to look into the generality of the allegations made and the material collected. In a given case where ex-facie the provision is not attracted; the Court may not be bound by the same.

NOC Not Mandatory For Registering Sale Of Fragmented Land: Bombay High Court Strikes Down Provision In Maharashtra Registration Rules, 1961

Case Title: Govind Ramling Solpure and Ors. versus The State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 177

The Bombay High Court has read down Rule 44(1)(i) of the Maharashtra Registration Rules, 1961 which imposed additional conditions on the person seeking registration of sale deeds for lands of certain size and therefore produce a No Objection Certificate for fragmentation of the land from the competent authority.

A circular issued by the Inspector General of Registration and Controller of Stamps (IGRCS), on July 12, 2021 based on Rule 44(1)(i), mandated enclosure of permission from the concerned authority in view of section 8B of the Maharashtra Prevention of Fragmentation and Consolidation of Holding (Amendment) Act, 2015. The circular barred Sub-Registrar's from registering any sale/transfer deed, if the no objection from the competent authority was not produced.

"Sure It Is Illegal": Bombay High Court Stops Work Of Powai Cycling &Jogging Track, Directs Restoration

Case Title: Omkar Mahadeo Supekar vs MCGM

Citation: 2022 LiveLaw (Bom) 178

In a huge setback for the civic body, the Bombay High Court held that the ongoing work for the cycle and jogging track around the Powai-lake is illegal and directed restoration of the reclaimed land.

The court held that the cycle track was a breach of Development Control Regulation 2034, [34 3.3 clause 7] mandating no construction for 100 meters from the periphery of the lake.

Bombay High Court Directs Assessee To Pay Rs.25,000 to Assessing Officer As The Stay Order Was Not Proactively Communicated

Case Title: Armstrong Pure Water Services Pvt. Ltd. Versus Union of India and others

Citation: 2022 LiveLaw (Bom) 179

The Bombay High Court bench of Justice N.R.Borkar and Justice K.R.Shriram held that the a litigant should have been proactive and promptly communicated the stay granted by the Court to the Assessing Officer.

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

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

Citation: 2022 LiveLaw (Bom) 180

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

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

Can't Get Carried Away By Heinousness Of Crime – Bombay High Court Acquits Man on Death Row

Case Title: The State of Maharashtra Vs Guddu Krish Yadav

Citation: 2022 LiveLaw (Bom) 181

The court acquitted a man sentenced to death by a sessions court in 2015 for the double murder of a colleague and his wife by pouring acid on the sleeping couple as revenge tactic for complaining to about him their employer.

"Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder on the accused," the bench observed noting that the police seems to have fabricated the dying declaration.

"Sell Builder's Property In 15 Days If No Settlement With Buyer": Bombay High Court On Unexecuted MAHARera Orders

Case Title: Ansari Mohammed Zaki vs The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 182

Cracking the whip against revenue authorities who failed to execute MahaRERA orders in favour of a flat purchaser, the Bombay High Court directed the attachment and sale of a builder's property within merely 15 days if settlement talks fail.

Bombay High Court Imposes 2 Lakh Cost On Adani Electricity For Workers Union, Says Law So Unambiguous Even Reliance Or BSES Didn't Raise Dispute

Case Title: Adani Electricity Mumbai Ltd. vs The Chief Conciliator, under Maharashtra Industrial Relations Act, 1946 and Ors.

Citation: 2022 LiveLaw (Bom) 183

The Court imposed costs of Rs. 2 lakh on Adani Electricity Limited payable to Mumbai Electric Workers' Union while dismissing a petition in which the company claimed it was no covered under Maharashtra Industrial Relations Act, 1946 (MIR Act).

Stamp Duty Refund Also Applicable To All Development Agreements Signed Between Sep, 2020- March 2021 - Bombay High Court

Case Title: M/s. Sandeep Dwellers Private Limited Vs The State of Maharashtra & ors

Citation: 2022 LiveLaw (Bom) 184

All Development Agreements signed between September 1, 2020 and March 31, 2021 would qualify for 1.5-2% refund of stamp duty as per the scheme announced by the Maharashtra Government during the Covid-19 pandemic in the year 2020, the Bombay High Court ruled.

In the landmark judgement, the HC held that the stamp duty payable on a Development Agreement is as per the duty payable on a Conveyance under Article 25 of the Maharashtra Stamp Act, 1958 and, therefore, Development Agreement would have to be treated at par with an instrument of Conveyance.

Claim For Recovery Of Security Deposit Or Damages Under License Agreement Is Arbitrable & Not Barred By Section 41 Of The Small Cause Courts Act: Bombay High Court

Case Title: Bafna Motors Private Limited versus Amanulla Khan

Citation: 2022 LiveLaw (Bom) 185

The Bombay High Court reiterated that where the parties to a Leave and License Agreement are governed by an Arbitration Agreement, determination of the dispute relating to recovery of the security deposit under the said License Agreement through arbitration is legally permissible.

The Single Bench of held that the expression "charges" as provided under Section 41 of the Presidency Small Cause Courts Act, 1882, which confers exclusive jurisdiction to the Small Causes Court with respect to a dispute between a licensor and a licensee relating to recovery of an immovable property situated in Greater Bombay or recovery of licence fee, charges or rent, cannot subsume in its fold a claim for damages.

The Court Shall Refer The Parties To Arbitration When There Is A Duality Of Expert Opinion As To The Genuineness Of The Agreement: Bombay High Court

Case Title: M/s Atul & Arkade Realty v. I.A. & I.C. Pvt. Ltd., Arbitration Application No. 72 of 2013.

Citation: 2022 LiveLaw (Bom) 186

The Bombay High Court held that when an allegation as to the fraud and forgery committed in the execution of the agreement is made and there is a duality of expert opinion on the genuineness of the agreement, the court shall refer the matter to the arbitrator.

The Single Bench of Justice N.J. Jamadar has held that when the underlying document in which the arbitration agreement is contained is alleged to be affected by fraud and forgery and there is uncertainty as to the veracity of the signatures on the agreement, the Court shall appoint the arbitrator to decide on the dispute.

Can Transit Anticipatory Bail Be Granted For Offences In Other States? Bombay High Court Refers To Larger Bench

Case Title: Prajith Thayyil Kallil S/o Jogesh K J Versus The State of Maharashtra, and connected matters

Citation: 2022 LiveLaw (Bom) 187

The division bench of the Bombay High Court referred to a full bench the question whether the trial courts or High Courts can grant transit anticipatory bail to an accused when the offence against him is registered in another state, beyond the court's jurisdiction.

A division bench of Justices S S Shinde and S V Kotwal widened the scope of the reference by adding issues like whether such courts are empowered to grant permanent anticipatory bail or if protection can be granted under Article 226 of the Constitution.

Credit Worthiness Of The Creditor And Genuineness Of Transaction Explained By The Assessee: Bombay High Court Quashes Re-assessment Notice

Case Title: Vapi Infrastructure and Industrial Township LLP Versus Income Tax Officer Ward

Citation: 2022 LiveLaw (Bom) 188

The Bombay High Court quashed a reassessment notice after the assessee explained the credit worthiness of the creditor and the genuineness of the transaction.

The division bench observed that the re-opening proposed was purely based on a change of opinion. The assessing officer was also satisfied with the credit worthiness and details provided by third party lenders.

Maharashtra Govt Agrees To Consider Appointment Of Woman To Police Department Three Yrs After Medical Test Declared Her 'Male'

Case Title: ABC Versus The State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 189

The Bombay High Court disposed of a petition after the State Government assured the court that it would sympathetically and expeditiously consider the case of a young woman for appointment to a non-constabulary post in the police department, three years after a medical test declared her a "male."

The woman had qualified with flying colours in 2018 from the Nashik Rural Police Recruitment drive from the Scheduled Caste category but based on her medical test, her marks didn't make the cut off for the men's category.

Kissing & Fondling Not Unnatural Offence U/S 377 IPC: Bombay High Court Grants Bail To POCSO Accused

Case Title: Prem Rajendra Prasad Dubey vs The State of Maharashtra

Citation : 2022 LiveLaw(Bom) 190

The Bombay high Court observed that kissing and touching private parts are prima facie not unnatural offences under Section 377 of the Indian Penal Code, therefore it granted bail to a man accused of a minor boy's sexual assault.

Regarding offences under sections 8 and 12 of the POCSO Act with maximum punishment of five years, the bench observed that the applicant is in custody for almost one year, the charge is not yet framed and trial is not likely to commence in the immediate future.

Boy Hangs Himself After School Chairman Calls Him "Nalayak, Jhopadpatti-Chhap": Bombay High Court Denies Anticipatory Bail

Case Title: Ganpatrao Janardhan Patil vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 191

The Bombay HC denied anticipatory bail to the Chairman and disciplinary authority of a school in a case of abetting a student's suicide as he "shattered the tender mind" and "put him in deep frustration."

Justice Vinay Joshi observed that a young student had lost his life in proximity from the act of the applicant and custodial interrogation was necessary for the case where the investigation was in progress.

"As per the statements of witnesses, the applicant has scolded the deceased minor boy in an unruly manner. He had also called his parents to the school…Prima facie suggests that the applicant has created an impression in the mind of the student to put him in deep frustration. It requires to be noted that there is a direct link of the applicant's act since within few hours from the episode, the child has ended his life by suicide," the court observed.

Assessment Can't Be Reopened On Mere Change Of Opinion Of AO: Bombay High Court

Case Title: Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax

Citation: 2022 LiveLaw(Bom) 192

The Bombay High Court, while quashing a reassessment notice, held that the assessment could not be reopened on a mere change of opinion of the Assessing Officer (AO).

The division bench of Justice K.R. Shriram and Justice N.R. Borkar observed that the reopening of assessment was merely on the basis of a change of opinion of the Assessing Officer from that held earlier during the course of assessment proceedings and this change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment.

Novation Of Partnership Deed, Arbitration Clause Contained In The Deed Can Be Invoked: Bombay High Court

Case Title: Praful A. Mehta versus Nainesh M. Gandhi

Citation: 2022 LiveLaw(Bom) 193

The Bombay High Court held that the allegation of forgery is required to be dealt with at the stage of trial before the Arbitrator.

The Single Bench of Justice A. K. Menon dismissed the contention that an arbitration clause cannot be invoked as a result of novation of the agreement containing the arbitration clause. The Court added that even though there had been a novation of the partnership deed containing an arbitration clause, an Arbitrator could be appointed for adjudication of disputes against the partner with respect to the partnership firm.

Loss On Trading In Derivatives Of Securities Not A Speculative Loss, Can Be Set Off Against Business Income: Bombay High Court

Case Title: Souvenir Developers (I) Pvt. Ltd. versus Union of India

Citation: 2022 LiveLaw(Bom) 194

The Bombay High Court ruled that transactions in respect of trading in derivatives carried out in a recognized stock exchange are excluded from the definition of "speculation transaction" under the Income Tax Act, 1961.

The Bench, consisting of Justices R.D. Dhanuka and S.G. Mehare, held that an assessee is thus entitled to claim set off of the loss suffered by it in the said transactions in derivatives against its business income. The Court added that the explanatory notes on the provisions of the Finance Act, 2005, clearly indicate that an eligible transaction in respect of trading in derivatives of securities, carried out on a recognized stock exchange, shall not be deemed as a speculative transaction.

Can't Ask Daughter-In-Law To Pay Mother-In-Law Maintenance Under Senior Citizens Act : Bombay High Court

Case Title: Sheetal Devang Shah versus Presiding Officer

Citation: 2022 LiveLaw(Bom) 195

The Bombay High Court observed that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman's income.

"We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law)," the HC observed.

It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines 'children,' includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law.

[Mumbai Local] Season Ticket Proof Of Bonafide Passenger For Accident Compensation Under Railway Act Even If ID Card Not Produced: Bombay High Court

Case Title: Harish Chandra Damodar vs UOI

Citation: 2022 LiveLaw (Bom) 196

A person holding a season ticket is a bonafide "passenger," for the purpose of claiming compensation under the Railway Act 1989 even in the absence of an identity card, the Bombay High Court held.

Unless the passenger was using a season ticket issued in someone else's name, a proper season ticket without an identity card, ipso-facto, would not render season ticket invalid or the passenger a ticketless traveller.

Bombay High Court Directs Maharashtra Govt To Consider Law Student's Representation For Uniformity In Examination Pattern & Mode In All Universities

Case Title: Balusha Santosh Bhasal and Anr. Versus State of Maharashtra and Ors

Citation: 2022 LiveLaw (Bom) 197

The Bombay High Court directed the Maharashtra Government to consider a law student's representation seeking uniformity in the method and pattern of examination for undergraduate students in all universities across the State.

The court further held that the State should consider the issue as the petitioners were seeking to enforce a decision taken in the meeting between the Minister of Higher and Technical Education, Maharashtra and Vice-Chancellors of all state Universities on April 25, 2022.

Service Of Summons Not Complete If Accepted By "Alleged Wife" Of Party Summoned: Bombay High Court

Case Title : Shamrao Piraji Kadam v Prakash Shivaji Chavan and ors

Citation: 2022 LiveLaw (Bom) 198

The Bombay High Court stated yesterday regarding service of summons that the suit summons was never served on the Petitioner as it was accepted by Respondent No. 3 falsely claiming to be his wife. There was want of knowledge on the part of the Petitioner about the suit proceedings as well as the ex parte decree; consequently the court condoned the delay in filing First Appeal before the Appellate Court.

Anxiety No Excuse To Assault Public Servant Discharging Public Duty: Bombay High Court Grants Anticipatory Bail With Warning

Case Title - Pravin Sahebrao Bhogawade v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 199

The Bombay High Court clarified that citizens, no matter how anxious they are or how serious their grievance is, are not permitted to take the law in their own hands and/or adversely deal with Public officials discharging their lawful duty.

Bombay High Court Quashes Sexual Assault FIR Under POCSO Act As Victim (Now A Major) & Accused To Marry

Case Title – Nauman Suleman Khan v State of Maharashtra & anr

Citation : 2022 LiveLaw (Bom) 200

The Bombay High court quashed an FIR under Protection of Children from Sexual Offences Act (POCSO Act) for penetrative sexual assault, as the victim girl (now a major) said that she and the accused were allegedly in love and are now to be married.

The court observed it was "inclined to accept the request for quashing the FIR, only by considering their future. If the prosecution still remains, it will come in their peaceful life."

[SC/ST Act] Can't Seek "Extra-Judicial Remedies" To Pressurize Prosecution: Bombay HC Grants Pre-Arrest Bail To Principal After Teacher Puts Arrest Banner

Case Title : Dr. Lekha Rajesh Visaria v The State of Maharashtra and Ors.

Citation : 2022 LiveLaw (Bom) 201

The Bombay High Court pulled up the complainant teacher for putting up banners seeking the principal's arrest, while granting anticipatory bail to the principal accused of hurling casteist remarks, a punishable offence under the SC/ST Act, at an "under-performing" teacher.

"Once the complaint is lodged, FIR registered, the publication of the banner is uncalled for. Complainant cannot seek extra judicial remedies to pressurize the prosecution. Prosecution will carry out the investigation on the basis of cogent material on record and its investigation process. Parties should desist from such acts and allow the prosecution to do its duty in accordance with law."

A Reference To Arbitration Can Be Declined By The Court If The Dispute Is A Deadwood: Bombay High Court

Case Title: D.K. Infrastructure Pvt. Ltd versus Kishore Agarwal and Anr.

Citation - 2022 LiveLaw (Bom) 202

The Bombay High Court held that once the Court is satisfied regarding the existence of an arbitration agreement between the parties, the Court can decline to make a reference to arbitration only if it is satisfied that the dispute is non-existent or that it has become a deadwood.

The Single Bench reiterated that the scope of enquiry under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) is extremely limited and that the arbitrability of the dispute is required to be determined by the Arbitral Tribunal.

Retaining Possession Post Land Acquisition Is Trespass: High Court Upholds Eviction Of Unauthorised Occupants From Mumbai International Airport

Case Title : Becharabhai B. Chauhan v Mumbai International Airport Pvt. Ltd. and Anr. And connected matters

Citation : 2022 LiveLaw (Bom) 203

The Bombay High Court upheld the eviction orders passed against a group of unauthorized occupants, claiming tenancy rights on the premises of Mumbai International Airport.

A Single bench of Justice Sandeep K. Shinde observed that the land in question was acquired by the State in 1947 and hence, even if the owner himself tries to retain possession thereof, he will become a trespasser. Reliance was placed on Indore Development Authority vs. Manoharlal and others.

DRT Not Empowered In Law To Restrain A Debtor's Fundamental Right To Travel Abroad: Bombay High Court

Case Title: Anurag S/o. Padmesh Gupta vs Bank of India

Citation : 2022 LiveLaw (Bom) 204

The Debt Recovery Tribunal (DRT) cannot restrain a citizen from travelling abroad since there is no specific or implied provision empowering it under the Recovery of Debts Due To Banks and Financial Institutions Act 1993, the Nagpur bench of the Bombay High Court held.

The bench of Justices AS Chandurkar and Amit Borkar observed that a citizen's right to travel abroad forms part of "personal liberty" defined under Article 21 of the Constitution. Therefore, to restrain a person from travelling abroad, it was necessary to have such a provision under the Act.

"The State has not made any law or provision in the said Act seeking to deprive or regulate the right of a person to travel abroad. The order is, therefore, liable to be set aside."

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

Case Title : Suresh Ladak Bhagat v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 205

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

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

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

RS Polls: Bombay High Court Refuses Immediate Relief To Nawab Malik To Cast Vote, Asks Him To Approach Appropriate Bench

Case Title – Nawab Malik vs UOI

Citation : 2022 LiveLaw (Bom) 206

Bombay High Court refused immediate relief to Maharashtra Cabinet Minister Nawab Malik to cast his vote in the Rajya Sabha elections today with liberty to approach the appropriate bench.

The court said that the petition under Article 227 and 482 CrPC was not maintainable and Malik was at liberty to approach the bench hearing bail applications.

"From the tenor of the application before special court and this Court, the primary prayer is for releasing petitioner for casting his vote on execution of a bond. The bond which can be referred to, can only be a bail bond under 439,437 of the CrPC. The petitioner is an undertrial and subject matter is to be decided by the appropriate bench. He should have moved the application before the bench for relief," the court said.

Last Seen Theory Must Be Proximate With Time Of Death: Bombay High Court Acquits Two Accused Of Murdering Deranged Man Mistaking Him For Demon

Case Title : Gautam Kamlakar Pardeshi and anr v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 207

The Bombay High Court held that the "last seen theory," whereby the accused is the last person spotted with the victim, is not enough to hold him guilty of the crime in the absence of a correlation with the time of the victim's demise.

The prosecution must establish the time when the deceased was last seen with the accused and the time of death, the court added. "Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused."

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

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

Citation: 2022 LiveLaw (Bom) 208

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

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

A Reference To Arbitration Can Be Declined By The Court If The Dispute Is A Deadwood: Bombay High Court

Case Title: D.K. Infrastructure Pvt. Ltd versus Kishore Agarwal and Anr.

Citation: 2022 LiveLaw (Bom) 209

The Bombay High Court has held that once the Court is satisfied regarding the existence of an arbitration agreement between the parties, the Court can decline to make a reference to arbitration only if it is satisfied that the dispute is non-existent or that it has become a deadwood.

The Single Bench of Justice N.J. Jamadar reiterated that the scope of enquiry under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act) is extremely limited and that the arbitrability of the dispute is required to be determined by the Arbitral Tribunal.

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

Case Title : Suresh Ladak Bhagat v The State of Maharashtra

Citation : 2022 LiveLaw (Bom) 210

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

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

Bombay High Court Rejects Shiv Sena MLA's Challenge To Invalidation Of Her Scheduled Tribe Certificate

Case Title – Latabai v. State of Maharashtra & Ors.

Citation – 2022 LiveLaw (Bom) 211

The Bombay High Court dismissed Shiv Sena MLA Latabai Sonawane's plea challenging a decision of the Scheduled Tribe (ST) Certificate Committee that had dismissed her claim of belonging to the Tokre Koli, an ST community.

A division bench observed that "the petitioner's father's caste in his birth register is shown as "Koli". It was a pre-Independence entry. The revenue record in the name of her grandfather shows his caste as "Hindu". "Hindu" is not a caste. Her sisters' caste in the school leaving certificates is also not shown as "Tokre Koli". The petitioner has no case that she, her sisters, father or grandfather has ever attempted to correct in their school record."

Victim May Seek Enhancement Of Accused' Sentence By Filing Revision Application: Bombay High Court

Case Title - Anand Singh Versus The State of Maharashtra, with connected matters

Citation –2022 LiveLaw (Bom) 212

A victim can seek enhancement of her/ his offender's jail time (sentence) only through a revision application and not by filing an appeal against the trial court's judgement, the Bombay High Court held.

While a victim's appeal against sentence may not be maintainable under section 372 of the CrPC, a revision application under section 401 of the CrPC for the same relief would survive. Such an application is also recognised under Rule 2(II)(a) of the Bombay High Court Appellate Side Rules 1960, the court said. The revision would go before a division bench.

Court Can Pass An Order Of Interim Measures Under Section 9 Of The A&C Act Against A Third Party: Reiterates Bombay High Court

Case Title: Choice Developers v. Pantnagar Pearl CHS Ltd. & Ors

Citation – 2022 LiveLaw (Bom) 213

The Bombay High Court reiterated that the Court is free to pass an order under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) to grant interim measures of protection against a third party who is impleaded in the petition filed under Section 9.

[No Fault Principle] Employee Can Claim Compensation Both U/S 140 Motor Vehicle Act & U/S 3 Of Workmen's Compensation Act: Bombay High Court

Case Title: Narayan v Mrs. Sangita and Anr

Citation: 2022 LiveLaw (Bom) 214

The Bombay HC recently dealt with a case wherein a truck driver, who was the employee of the owner of the truck met with a vehicular accident. As he had initiated compensation proceedings under section 140 of the Motor Vehicles Act 1988 ("M.V. Act"), his claim for compensation under the Workmen's Compensation Act 1923 (now Employees Compensation Act 1923) ("W.C. Act") was not entertained by the commissioner.

The court held that the compensation granted under chapter X of the M.V. Act does not forfeit the right of the employee to claim the compensation under section 3 of the 1923 Act as provided under Section 167 of the M.V. Act.

"Fraud On Court": Bombay HC Sets Aside Consent Decree Granting Development Rights For 6K Acres Land In Kanjurmarg Village To Private Firm

Case Title - State of Maharashtra vs Adarsh Waterparks Pvt Ltd

Citation - 2022 LiveLaw (Bom) 215

The Bombay High Court granted relief to the Maharashtra government and set aside a consent decree by which a private firm obtained development rights, in October 2020, for over 6,000 acre of land in Kanjurmarg village, including the 102-acre land designated for a Metro car shed.

"There was a larger responsibility cast on the advocates to disclosed all the facts...Suppression of all these facts has led the court pass the order. Thus, undeniably fraud of a huge proportion has been played by suppressing the claims of various other parties. The consent decree is a product of the fraud."

Services Rendered Abroad Amounts to Export Of Services, No GST Applicable: Bombay High Court

Case Title: Jar Productions Private Limited Versus The Union of India & Ors.

Citation - 2022 LiveLaw (Bom) 216

The Bombay High Court held that GST does not apply to the services rendered abroad as they amount to the export of services.

The division bench of Justice S.V. Gangapurwala and Justice M.G. Sewlikar has allowed the GST refund to the petitioner/assessee as the department has failed to establish that the incidence of tax was passed on to the client amounted to unjust enrichment.

High Court Refuses To Appoint Retd Judge To Inquire Into Assault Allegations Levelled By Bombay Presidency Radio Club Against Advocate Ravi Goenka

Case Title : Ravi Goenka Versus The Bombay Presidency Radio Club Ltd. & Ors.

Citation - 2022 LiveLaw (Bom) 217

In a setback for the Bombay Presidency Radio Club Ltd., one of the oldest clubs in the city, the Bombay High Court refused to appoint a new inquiry officer to investigate allegations of assault against club-member and advocate - Ravi Goenka.

Refusing relief for the club, Justice Riyaz Chagla cited the delay on their part in approaching the High Court to substitute Justice (Retd.) S.J. Vazifdar. Justice Chagla rejected the club's justification, that since only very urgent matters were being taken up during the Covid-19 pandemic, they approached the court only in 2022.

Bed & Breakfast Lodging Permitted By Tourism Corporation In Residential Premises Requires BMC License: Bombay High Court

Case Title: Harmesh Singh Chadha @ Jimmy v. Municipal Corporation of Greater Mumbai

Citation - 2022 LiveLaw (Bom) 218

Bombay HC held that bed & breakfast lodging permitted by the Maharashtra Tourism Development Corporation (MTDC) in residential premises to promote tourism requires licence from BrihanMumbai Municipal Corporation (BMC) as it is a commercial use of premises.

Justice Bharati Dangre observed that section 394 of the Mumbai Municipal Corporation Act, Act, 1988 (MMC Act) restricts certain activities including 'lodging' sans Civic chief's nod. Section 394 of the MMC Act imposes a restriction upon certain activities to be carried out within limits of the Corporation except on the licence granted by the Commissioner and this includes carrying of any trade upon any premises which is specified in part IV of Schedule M or any process or operation connected with any such trade and Part IV of Schedule 'M' cover an activity of 'lodging', the court noted.

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

Case Title: Esrar Nazrul Ahemad Versus State of Maharashtra

Citation - 2022 LiveLaw (Bom) 219

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

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

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

Undertrial Also Barred From Voting As Per Section 62(5) RP Act; Allowing Prisoners To Vote Doesn't Strengthen Democracy : Bombay High Court

Case Title - Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement

Citation - 2022 LiveLaw (Bom) 220

In the order refusing relief to NCP leaders Nawab Malik and Anil Deshmukh, the Bombay High Court held that the bar under Section 62(5) of the Representation of the People Act 1951 against allowing a prisoner to vote is applicable to an undertrial as well and not just to a convict.

"If a full play is given to the provisions contained in section 2(d) and Section 62(5) of the RP Act 1951, an inference becomes inescapable that a person in custody, either post conviction or during the course of investigation or trial, is prohibited from casting vote in any election", the court observed.

Further, the Court observed that permitting a person in prison to vote, who is otherwise barred from voting wouldn't strengthen democracy.

Mere Pendency Of A Civil Suit Is Not An Absolute Bar To A Petition Under Section 11 Of The A&C Act: Bombay High Court

Case Title: Priya Rishi Bhuta & Anr. vs Vardhaman Engineers and Builders & Ors.

Citation: 2022 LiveLaw (Bom) 221

The High Court of Bombay held that mere pendency of a Civil Suit is not an absolute bar to a petition under Section 11 of the A&C Act as long as the petitioner can withdraw its suit before the defendant files its statement on the issue.

A single bench of Justice G.S. Kulkarni held that it is also permissible for the Civil Court to consider an application of the plaintiff to permit withdrawal of the suit when there is an arbitration agreement, and refers the parties for arbitration.

The Court held the rights accrued to a party as the legal heir of its deceased parents in their estate are independent of its right which is recognized by a partnership deed as a legal heir of the deceased partners.

Bombay High Court Orders Release Of Pharmacy Student Held For Social Media Post Aimed Against NCP Supremo Sharad Pawar

Case Title: Mr.Nikhil Shyamrao Bhamare vs State of Maharashtra and another

Citation: 2022 LiveLaw (Bom) 222

The Bombay High Court granted bail to 21-year-old pharmacy student Nikhil Bhamre, who was arrested for defamatory posts allegedly aimed at NCP president Sharad Pawar.

The division bench of Justices Nitin Jamdar and NR Borkar orally observed, "He is a student; he is in custody since a month. We will pass an order granting him bail." The Court further ordered that no coercive action be taken against him in cases he hasn't been arrested.

Bombay High Court Directs Removal Of Pirated Links Of "Janhit Mein Jaari" Film Produced By Bhanushali Studios

Case Title: Bhanushali Studios Ltd. & Ors vs Telegram Messenger LLP & Anr

Citation: 2022 LiveLaw (Bom) 223

The Bombay High Court passed a John Doe order directing police assistance in removing all links or pirated copies of the movie "Janhit Mein Jaari" in a copyright Infringement case filed producers Bhanushali Studios Ltd.

Justice Riyaz Chagla granted ad-interim relief against unknown parties last week for removing unauthorised online links and pirated copies of the film online.

The film starring actor Nushratt Bharuccha traces the journey of a woman on a mission to sell condoms in a small town in Madhya Pradesh amidst the social taboos around sex.

Arbitral Proceedings Cannot Be Imposed On A Debenture Trustee Under A Scheme Of Compromise, In The Absence Of An Arbitration Agreement: Bombay High Court

Case Title: HMG Industries Ltd vs Canara Bank

Citation: 2022 LiveLaw (Bom) 224

The Bombay High Court held that even though a Scheme of Compromise entered into under Section 391 of the Companies Act, 1956 overrides all the agreements between the affected parties, arbitral proceedings cannot be imposed by a Company on a Debenture Trustee by virtue of the said Scheme only, in the absence of an arbitration agreement between them.

A single bench of Justice A.K. Menon ruled that the Debenture Trustee was an independent obligation of the Company and thus, the arbitration clause contained in the Scheme was not binding on the Debenture Trustee.

Suit Against Raymond Ltd & Gautam Singhania : Bombay HC Allows Flatbuyers To Raise Plea That Building Constructed By Raymond Has No Occupancy Certificate

Case Title: Raymond Ltd. & Anr vs New Sarnath Co-op. Hsg. Soc. Ltd. & Ors

Citation: 2022 LiveLaw (Bom) 225

In a relief for flat purchasers of one of the two buildings constructed by Raymond Ltd in the 1960-70's, the Bombay High Court upheld certain amendments in a suit filed against the company and its chairman Gautam Singhania.

The amendments to the plaint pertain to Raymond's alleged failure to obtain an occupation certificate (OC) even after 50-years, non-execution of a conveyance or lease deed in favour of the plaintiff society, access to the common terrace, restrictions on using the garden.

Justice Anuja Prabhudessai held that the amendments were not malafide or irrelevant and did not cause any prejudice to Singhania. In fact, they were "relevant to decide the controversy between the parties."

Daughter's Glossy Instagram Pictures Not Conclusive Proof Of Income: Bombay High Court Upholds Maintenance By Father To Major Daughter

Case Title: Anil Chandravadan Mistry vs The State of Maharashtra & Ors

Citation: 2022 LiveLaw (Bom) 226

The Bombay High Court refused to modify the maintenance amount payable by a father to his major daughter observing that her 'glossy' Instagram photographs weren't sufficient proof of her income.

"It is a well-known fact that it is the habit of the youth of today to project a glossy picture and post the same in the social media though its contents may not always be true,'' Justice Bharati Dangre observed.

After perusing printed copies of the daughter's Instagram profile where she claimed she earned Rs. 72–Rs 80 lakh as a model, the court upheld the family court's observation that "photographs of instagram and her instagram biography is not sufficient to hold that she has independent and sufficient income."

S 171 Contract Act - Bank Can't Retain Title Documents After Repayment Of Loan Citing Pendency Of Another Loan : Bombay High Court

Case Title: Mr. Sunil vs Union Bank of India

Citation: 2022 LiveLaw (Bom) 227

A bank cannot retain title documents of a borrower's house after repayment of a loan, citing general lien on documents, merely because of pendency of another loan, the Bombay High Court held.

The bench partly-allowed a borrower's writ petition and directed Union Bank of India to handover title documents of his flat despite recovery proceedings, for another unpaid loan by the petition's company, pending before the DRT.

A division bench of Justice AS Chandurkar and Urmila Joshi Phalke observed that the bank's general lien on security (title document) under section 171 of the Indian Contracts Act, wouldn't apply after closure of the loan account.

Service Recipient Liable To Pay GST On Interest Amount Under Arbitral Award For Delayed Payment: Bombay High Court

Case Title: M/s Angerlehner Structural and Civil Engineering Company vs Municipal Corporation of Greater Bombay

Citation: 2022 LiveLaw (Bom) 228

The Bombay High Court held that the service recipient is liable to pay GST to the government on interest under an arbitrary award and it cannot be deducted from the dues payable to the service provider.

A single bench of Justice B.P. Colabawalla observed that service tax is an indirect tax, and it is possible that it may be passed on. Therefore, an assessee can certainly enter into a contract to shift its liability for service tax.

"Prima Facie Construction Unauthorised": Bombay High Court Dismisses Petition For Regularisation Of Narayan Rane's Bungalow

Case Title: Kaalkaa Real Estates Pvt. Ltd. & Anr vs Municipal Corporation of Gr. Mumbai & Ors

Citation: 2022 LiveLaw (Bom) 229

In a set-back for Union Minister Narayan Rane, the Bombay High Court dismissed a petition seeking regularisation of illegal portions of the plush 8 storey building in Juhu where the BJP leader resides with his family.

The court, however, granted a six week stay on the order to approach the Supreme Court.

A division bench of Justices RD Dhanuka and MG Sewlikar observed, "Since (prima facie) construction carried out is totally unauthorised, the question of political rivalry does not arise."

Application To Settlement Commission May Be Filed By Any Person To Whom A Show Cause Notice Is Served Charging Him With Customs Duty: Bombay High Court

Case Title: M/s Halliburton Offshore Services Inc. vs The Union of India

Citation: 2022 LiveLaw (Bom) 230

The Bombay High Court held that a person who may not be an importer or exporter can still file an application under section 127-B of the Customs Act, 1962 before the Settlement Commission if he is served with a show-cause notice charging him with customs duty.

A division bench of Justice K.R. Sriram and Justice Prithviraj K. Chavan observed that the term "any other person" appearing in Section 127-B of the Customs Act, 1962 should be interpreted to mean in its literal sense. The proviso to Section 127-B provides that a bill of entry must be filed, not necessarily by the person who approaches the settlement commission, provided the person is served with a show-cause notice charging him with customs duty.

Children Entitled To Deceased Mother's Share In Railway Compensation Award, Even After Receiving Compensation For Themselves: Bombay High Court

Case Title: Shri. Kiran Damodar Paygode and Anr vs The Union of India represented by the General Manager

Citation: 2022 LiveLaw (Bom) 231

Children can seek execution of Railway's compensation award on behalf of their deceased mother, even after receiving their own share of compensation, the Bombay High Court held.

The court set aside the Railway Claims Tribunal's order which held that the petitioner-sons were not eligible to receive compensation awarded to their deceased mother and grandmother, having already received their share of compensation, after their father's demise in a Railway accident.

"I hold, appellants were entitled to recover the compensation that had fallen due to Lakshmibai and Indubai, but remained unpaid," Justice SK Shinde observed.

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

Case Title: Vijay and ors vs Ravindra Ghisulal Gupta

Citation: 2022 LiveLaw (Bom) 232

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

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

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

Undisputed Claims Can't Be Set-Off Against Unliquidated Damages That Are Not Ascertained: Bombay High Court

Case Title : Ocean Sparkle Limited. V Oil and Natural Gas Corporation Ltd. And anr

Citation: 2022 LiveLaw (Bom) 233

The Bombay High Court recently has observed that set-off of unliquidated damages that are not ascertained or admitted against an undisputed claim is not tenable.

Single judge G.S. KULKARNI reiterated that a Section 9 Court would not be unduly bound by procedural law contained in the Code of Civil Procedure, 1908, the underlying principle being to make arbitration an effective form of dispute resolution; and that a performance bank guarantee ("PBG") cannot be invoked contrary to the provision for its invocation in the PBG itself.

Bombay High Court Dismisses Plea Challenging PoP Ban For Sculpting Idols

Case Title: Ajay Vaishampayan v. Union of India

Citation: 2022 LiveLaw (Bom) 234

The Bombay High Court on Monday dismissed a PIL challenging the ban on use of Plaster of Paris (POP) for making Ganesh idols.

PIL petitioner Ajay Vaishampayan, an activist, had claimed that PoP was banned without any scientific tests on its effect on water. And Shadu clay idols, used as an alternate option, were more harmful for the environment.

However, a division bench of Chief Justice Dipankar Datta and Justice MS Karnik noted that the Supreme Court had already dismissed an appeal against the National Green Tribunal's order, thereby upholding the ban.

Bombay High Court Imposes Rs. 5 Lakh Cost On Adani Port In Challenge To Disqualification In JNPA Tender

Case Title: Adani Ports and Special Economic Zone Limited Versus The Board of Trustees of Jawaharlal Nehru Port Authority and Ors.

Citation: 2022 LiveLaw (Bom) 235

The Bombay High Court on Monday dismissed Adani Ports and Special Economic Zone Limited's petition challenging its disqualification in the tender for upgradation of the container terminal in Navi Mumbai by the Board of Trustees of Jawaharlal Nehru Port Authority (JNPA).

A division bench of Chief Justice Dipankar Datta and Justice MS Karnik said the plea was "non-meritorious" and imposed costs of Rs. 5 lakh, payable to JNPA.

Friendly Relations Not Consent To Establish Physical Relations: Bombay High Court

Case Title: Ashish Ashok Chakor v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 236

The Bombay High Court recently observed that a girl merely being friendly with a boy doesn't allow him to misconstrue it as her consent to establish a sexual relationship with her and rejected the anticipatory bail application of a man accused of impregnating a woman under the pretext of marriage.

Justice Bharati Dangre rejected the pre-arrest bail plea filed by one Ashish Chakor accused of raping a woman under the pretext of marriage and booked under sections Sections 376(2)(n), 376(2)(h) and 417 of the IPC.

Discussions About Working For Islam Not Incriminating: Bombay High Court Grants Bail To Man Accused Of IS Links After 7 Years Of Incarceration

Case Title : Mohammad Raisuddin v The National Investigating Agency and anr

Citation: 2022 LiveLaw (Bom) 237

The Bombay High Court has granted bail to a man from Parbhani, accused of taking an oath of allegiance to the banned terror organisation Islamic State and booked under the Unlawful Activities (Prevention) Act.

A division bench of Justices Revati Mohite Dere and VG Bisht granted bail to Mohammad Raisuddin noting that laboratories had given divergent views connecting "oath" document to the handwriting of the accused. Moreover, NIA did not tender the opinion in the accused's favour for over two years.

Even otherwise, the Oath declaring a former leader of the IS as the "caliph" of Muslims was not prima facie incriminating, the court said.

No Absolute Right Under RTE Act For Admission To Unaided Minority Schools: Bombay High Court

Case Title: Master Dhairya Pritesh Bansod .vs. The Principal, Mothers Pet Kindergarten, Nagpur and ors.

Citation: 2022 LiveLaw (Bom) 238

A student doesn't have a "right" to admission to a private un-aided minority school under the Right of Children to Free and Compulsory Education Act, 2009 and granting admission is the absolute discretion of the school, the Bombay High Court has held.

The court cited the Supreme Court judgement in Society for Unaided Private Schools of Rajasthan v. Union of India wherein it was held that a Private Un-aided Minority School is not covered by the Right of Children to Free and Compulsory Education Act, 2009.

ESI Act Applicable To BCCI As Its Activities Are Commercial In Nature : Bombay High Court

Case Title: The Board of Control for Cricket in India Versus Regional Director Employees State Insurance Corporation and anr

Citation: 2022 LiveLaw (Bom) 239

The Bombay High Court has upheld an order holding that the nature of activities conducted by the Board of Control for Cricket in India are commercial activities under the ESI Act making the regulatory body liable to pay its employees accordingly.

Justice Bharati Dangre, in a judgement passed last week, dismissed an appeal filed by the BCCI and upheld the finding of the Employee Insurance Court (ESI Court) that the Board was covered under the notification dated 18/9/1978 issued under the provision of Section 1(5) of the Employee State Insurance (ESI) Act by the Maharashtra Government.

Can't Force Rape Victim To Mother A Child: Bombay High Court Allows Termination Of Minor's 16 Week Pregnancy

Case Title: 'A' v. State of Maharashtra and Anr.

Citation: 2022 LiveLaw (Bom) 240

The Bombay High Court allowed the termination of a 16 weeks' pregnancy of a minor who was a victim of sexual abuse and was also in custody at an Observation Home for a crime of murder under section 302 of the Indian Penal Code (IPC).

A bench of Justices A.S. Chandurkar and Urmila Joshi-Phalke noted that the Apex Court has observed that reproductive choice is an insegregable part of a woman's personal liberty as envisaged under Article 21 of the Constitution of India.

"She cannot be forced to give birth to a child...She has a choice to give birth to the child or not," it observed.

Sushant Singh Rajput's Flatmate Siddharth Pithani Gets Bail From Bombay High Court In Drugs Case

Case Title: Siddharth Pithani v. UoI

Citation: 2022 LiveLaw (Bom) 241

The Bombay High Court on Monday granted bail to Siddharth Pithani, former flatmate of late actor Sushant Singh Rajput, accused in an illicit drug probe following the Actor's death.

Justice Bharati Dangre ordered bail on the execution of a PR Bond of Rs. 50,000.

Place Designated As The 'Venue' Of Arbitration In Its Entirety, Is The 'Seat' Of Arbitration: Bombay High Court

Case Title: Priya Malay Sheth v. VLCC Health Care Ltd.

Citation: 2022 LiveLaw (Bom) 242

The Bombay High Court reiterated that whenever a place is designated as the "venue" of the arbitration proceedings in its entirety in an Arbitration Clause, the said place would necessarily be the "seat" of the arbitral proceedings.

The Single Bench of Justice G.S. Kulkarni held that such part of the Arbitration Agreement wherein the parties had agreed upon the venue of the arbitration proceedings, would be required to be read as distinct and independent from the arbitral mechanism agreed between the parties.

Bombay High Court Allows Release Of 'Khuda Haafiz 2' As Producers Agree To Changes Recommended By CBFC

Citation: 2022 LiveLaw (Bom) 243

The Bombay High Court disposed of a petition against the release of the movie Khuda Haafiz Chapter II after it was informed that changes suggested by the Central Board for Film Certification (CBFC) were already made and additional changes to the film's trailer would be reflected before its release, on July 8, 2022.

The film is produced by Cinergy, Panorama Studios and Zee Studios.

The bench of Justices SV Gangapurwala and SM Modak heard the petition filed by 12 Islamic organisations including the All India Idarae Tahfuz-e-Husainiyat, that objected to the negative portrayal of zajeer-ka-matam in the film's trailer. It is an act of inflicting pain on oneself in the prophet's name during the holy month of Muharram.

Bombay High Court Upholds Disqualification Of Tata Motors From Electric Buses Tender Invited By BEST; Also Sets Aside Grant To Evey Trans

Case Title: TATA Motors Ltd. & Anr. v. The Brihanmumbai Electric Supply & Transport Undertaking

Citation: 2022 LiveLaw (Bom) 244

The Bombay High Court on Tuesday upheld Brihanmumbai Electric Supply & Transport's (BEST) decision to disqualify Tata Motors' bid for operation of electric buses.

A division bench of Justices Sanjay Gangapurwala and M.J. Jamdar observed that the company had deviated from the "material and the substantial term" of the tender and thus, BEST had rightly disqualified it from the tender process.

Bombay High Court Rejects Plea For Annulment Of Marriage By Wife Claiming She Was Drugged

Case Title: Monika Narendra Sharma v. Mukeshkumar Ramnath Bhagal

Citation: 2022 LiveLaw (Bom) 245

A petition for annulment of marriage on grounds of fraud must be presented within a year of discovering such deception, the Bombay High Court said, refusing relief to a woman who claimed she was drugged and abducted to her marriage venue in December 2011.

A division bench of Justices KR Shriram and Prithviraj Chavan observed that "no sane man would believe her statement" that an educated independent woman in a city like Mumbai, would remain silent and passive after being drugged with prasad, abducted from her office, married and then brought back to office the following day.

Invocation Of Arbitration Has To Be In Clear Terms; Merely Stating Claims Would Not Suffice: Bombay High Court

Case Title: M/s. D.P. Construction v. M/s. Vishvaraj Environment Pvt. Ltd.

Citation: 2022 LiveLaw (Bom) 246

The Bombay High Court ruled that invocation of arbitration has to be in clear terms, as specified in Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act), and that a mere reference to the claims and disputes sought to be raised by a party, and the existence of an arbitration clause, would not itself mean that arbitration has been invoked by such a party.

The Single Bench of Justice Manish Pitale observed that Section 21 of the A&C Act specifically refers to a request for the dispute to be referred to arbitration as regards the commencement of the arbitral proceedings. Hence, the Court ruled that unless there is a request by a party that the dispute is to be referred to arbitration, merely stating the claims and disputes in a notice would not suffice.

SSR Case: Bombay High Court Refuses Anticipatory Bail To Celebrity Manager Karishma Prakash

Case Title: Karishma Prakash v. UoI

Citation: 2022 LiveLaw (Bom) 247

The bench referred the following question to a larger bench for consideration. "Whether all offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 are non-bailable, irrespective of the punishment prescribed and irrespective of the fact that many offences do not even mandate imprisonment as a punishment?"

The Bombay High Court rejected the anticipatory bail application of Karishma Prakash, actor Deepika Padukone's former manager, in the drugs connected to actor Sushant Singh Rajput's death. The court observed that her claims of using CBD oil (cannibus) because of the rashes that broke out due to stress after receiving summons in the case, did not appear truthful. Moreover, her custodial interrogation was necessary to investigate bank transactions, allegedly to procure drugs.

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

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

Citation: 2022 LiveLaw (Bom) 248

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

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

Mandatory Pre-Deposit U/S 129E of the Customs Act Is Constitutional: Bombay High Court

Case Title: United Projects v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 249

The Bombay High Court ruled that by virtue of section 129E of the Customs Act, the right to appeal is a conditional right. The legislature, in its wisdom, has imposed a condition of deposit of a percentage of duty demanded or penalty levied or both.

The three-judge bench of Justice R.D. Dhanuka, Justice Nitin W. Sambre, and Justice Abhay Ahuja observed that the fiscal legislation can very well stipulate as a requirement of law a mandatory pre-deposit as a condition precedent for an appeal to be entertained by the appellate authority. Thus, section 129E of the Customs Act cannot be held to be unconstitutional.

The Court noted that the right to appeal is a statutory right and not an absolute right, which can be circumscribed by the conditions in the grant.

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

Case title: Anuradha Sharma v. Anuj Sharma

Citation: 2022 LiveLaw (Bom) 250

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

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

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

Case Title: Arundhati Sukhtankar and Anr. v. UoI

Citation: 2022 LiveLaw (Bom) 251

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

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

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

Amendment To Section 34 Application Of The A&C Act Would Not Be Permissible If It Intends A New Challenge: Bombay High Court

Case Title: Friends & Friends Shipping Pvt. Ltd v. Central Warehousing Corporation

Citation: 2022 LiveLaw (Bom) 252

The Aurangabad Bench of Bombay High Court held that an amendment to the application under Section 34 of the A&C Act would not be allowed if it leads to absolutely new grounds to challenge the award.

The Single Bench of Justice Mangesh S. Patil held that in an appropriate case it is permissible to allow the amendment to application under Section 34 even beyond the period provided under Section 34(3) of the Act, however, the amendment can only add some facts to the pending challenge but it cannot be allowed if it constitutes a fresh challenge.

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

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

Citation: 2022 LiveLaw (Bom) 253

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

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

[Order 1 Rule 10 CPC] Can't Compel Plaintiff To Wage Legal Battle Against A Person Against Their Will: Bombay High Court

Case Title: Jagannath Khanderao Kedar and Anr. v. Gopinath Bhimaji Kedar and Ors.

Citation: 2022 LiveLaw (Bom) 254

The Bombay High Court has held that a plaintiff cannot be forced to sue third parties who have no interest or share in the suit property.

"..the plaintiff is dominus litis which latin expression means that the plaintiff is the master of the suit," the court stated. It added that the only exception to this would be if the law necessitated the presence of third party, either as necessary party or proper party.

Gadchiroli Blast Case: Bombay High Court Grants Bail To 72-Yrs-Old Alleged Naxal Operative

Case Title: Sathyanarayana Rani v. State

Citation: 2022 LiveLaw (Bom) 255

Bombay High Court granted bail to 72-year-old to Sathyanarayana Rani, arrested in 2019 for allegedly being a top Naxal operative and conspiring the attack on security personnel in Gadchiroli.

On May 1, 2019 fifteen security personnel from the Quick Response Team (QRT) and one civilian were killed in an IED explosion attack in Gadchiroli. The case was subsequently transferred to the National Investigation Agency (NIA).

Bar Under Section 41(1) Of The Presidency Small Causes Courts Act Is Not Attracted When The Tenant-Landlord Relationship Is Non-Existing: Bombay HC

Case Title: Rahim Manji Kaba v. Moosabhai Gagji Khetani

Citation: 2022 LiveLaw (Bom) 256

The Bombay High Court held that bar under Section 41(1) of the Presidency Small Causes Courts Act, 1882[i] is not attracted to a dispute regarding declaration of tenancy rights under a partnership deed when the licensor-licensee or landlord/tenant relationship is non-existent

The Bench held that the bar under Section 41 of the Presidency Small Causes Courts Act only applies where the parties have a landlord-tenant or licensor-licensee relationship between themselves.

S.138 NI Act | Non-Executive Directors Not Liable For Company's Actions/ Omissions Unless Involved In Day-To-Day Affairs: Bombay High Court

Case Title: Satvinder Jeet Singh Sodhi and Anr. v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 257

The Bombay High Court quashed criminal proceedings against independent non-executive directors of Tecpro Systems Ltd observing they were not responsible for day-to-day functioning of the company.

The court was dealing with an application requesting quashing of criminal proceedings before the trial court in a cheque bounce case under the Negotiable Instruments Act.

"Non-executive director not being a promoter of or key managerial persons shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently", the court stated.