Bombay High Court Weekly Round Up: June 13 - June 19, 2022

Latabai vs State of Maharashtra & Ors. 2022 LiveLaw (Bom) 211

Anand Singh vs The State of Maharashtra, with connected matters 2022 LiveLaw (Bom) 212

Choice Developers vs Pantnagar Pearl CHS Ltd. & Ors 2022 LiveLaw (Bom) 213

Narayan vs Mrs. Sangita and anr 2022 LiveLaw (Bom) 214

State of Maharashtra vs Adarsh Waterparks Pvt Ltd 2022 LiveLaw (Bom) 215

Jar Productions Private Limited vs The Union of India & Ors. 2022 LiveLaw (Bom) 216

Ravi Goenka vs The Bombay Presidency Radio Club Ltd. & Ors. 2022 LiveLaw (Bom) 217

Harmesh Singh Chadha @ Jimmy vs Municipal Corporation of Greater Mumbai 2022 LiveLaw (Bom) 218

Esrar Nazrul Ahemad Versus State of Maharashtra 2022 LiveLaw (Bom) 219

Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement 2022 LiveLaw (Bom) 220

Judgments/Orders 

1. 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."

2. 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.

3. 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 versus 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.

4. [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.

5. "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."

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.