Bombay High Court Weekly Round-Up: March 19 To March 25, 2023

Nominal Index [Citation 148 - 158]

Seawoods Estates Ltd. v. Mona Mohan And Ors. 2023 LiveLaw (Bom) 148

Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors. 2023 LiveLaw (Bom) 149

National Textile Corporation Ltd vs. Elixir Engineering Pvt Ltd & Anr. 2023 LiveLaw (Bom) 150

Raj Shrikant Thackeray v. State of Maharashtra 2023 LiveLaw (Bom) 151

Mahadev Gaur Bishwas v. State of Maharashtra & Anr 2023 LiveLaw (Bom) 152

Suresh s/o Devidas Malche v. State of Maharashtra 2023 LiveLaw (Bom) 153

Anil G. Karkhanis v. Kirloskar Press and Anr. 2023 LiveLaw (Bom) 154

Hanuman Motors Pvt Ltd & Anr. vs. M/s Tata Motors Finance Ltd 2023 LiveLaw (Bom) 155

State of Maharashtra v. Kuldeep Subhash Pawar 2023 LiveLaw (Bom) 156

Liladhar @ Vijay Lodhi v. State of Maharashtra 2023 LiveLaw (Bom) 157

Ram Omprakash Patil v. Secretary, Government of India and Ors. 2023 LiveLaw (Bom) 158

Reports/Judgments

Central Government Has Notified Rules: Bombay High Court Disposes Off Resident Welfare Associations Plea Against Society’s Dog Lovers

Case Title: Seawoods Estates Ltd. v. Mona Mohan And Ors.

Citation: 2023 LiveLaw (Bom) 148

Observing that the Animal Birth Control Rules, 2023 formulated by the Central Government notified on March 10, 2023 answers the question of feeding strays or community dogs inside a housing society “optimally”, the Bombay High Court disposed of a petition involving warring management of Seawoods Estate Limited and dog lovers from the society.

According to the Rules, in case a dispute arises between the apartment owners and care givers, a 7-member Animal Welfare Committee would be formed and its decision would be final.

“If this is the architecture of the Rules, then clearly there is no issue for us to decide. There is now legislative framework that occupies the field,” the bench said.

Daughter Does Not Lose Right In Family Property Merely Because Dowry Was Paid At Her Marriage: Bombay High Court

Case Title: Terezinha Martins David v. Miguel Guarda Rosario Martins and Ors.

Citation: 2023 LiveLaw (Bom) 149

The Goa bench of Bombay High Court held that daughter’s right to family property does not extinguish merely because she was provided dowry at her marriage.

Justice MS Sonak quashed a Transfer Deed made by brothers transferring family property without the consent of the appellant sister.

Facilitation Council Under MSMED Act Has No Jurisdiction To Conduct Arbitration Dispute Arising Under A Works Contract: Bombay High Court

Case Title: National Textile Corporation Ltd vs. Elixir Engineering Pvt Ltd & Anr.

Citation: 2023 LiveLaw (Bom) 150

The Bombay High Court has set aside an arbitral award passed by the Facilitation Council by invoking statutory arbitration under Section 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), while holding that the Council could not have exercised jurisdiction to conduct arbitration in a dispute arising under a works contract.

The bench of Justice Manish Pitale remarked that a works contract is not amenable to the provisions of the MSMED Act, and therefore the MSMED Act could not have been invoked by the claimant/ award holder.

The Court concluded that the lack of jurisdiction of the Facilitation Council to conduct the arbitral proceedings rendered the arbitral award patently illegal.

Bombay High Court Quashes Order Against Raj Thackarey, Asks Sessions Court To Decide Discharge Afresh In 2008 Agitation Case

Case Title: Raj Shrikant Thackeray v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 151

The Bombay High Court quashed an order passed against Maharashtra Navnirman Sena (MNS) president Raj Thackeray refusing to discharge him from a 2008 “unlawful assembly case” regarding agitations seeking jobs for Maharashtrians in the Railway.

Justice Amit Borkar remanded the matter back to the Sessions court of Islampur directing it to decide the revision application afresh as the order lacked proper reasoning.

3.5 Yrs Old Girl Not Introduced To Own Organs, Not Expected To Give Exact Description Of Private Parts, Identify Accused From Photo: Bombay High Court

Case Title: Mahadev Gaur Bishwas v. State of Maharashtra & Anr

Citation: 2023 LiveLaw (Bom) 152

Observing that a three-year-old child cannot be expected to give an exact description of her private parts or identify the accused based on a photograph, the Bombay High Court upheld the 10 -year sentence of the child’s neighbour under the Protection of Children from Sexual Offences Act (POCSO).

Justice Bharati Dangre upheld the neighbour’s conviction by a Special Court for offences punishable u/s. 376(2) and Section 6 of the POCSO Act for raping the victim girl by penetrating his finger into the vagina.

“A little girl of 3 ½ years who is not even introduced to her own organs, cannot be expected to give exact description of her private parts, but in her statement recorded u/s.164, she has categorically stated that XXXX’s father had touched her at the toilet place by his nails,” the judge observed

Conviction Cannot Be Based Only On DNA Report When Ocular Evidence Does Not Support It: Bombay High Court

Case Title: Suresh s/o Devidas Malche v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 153

The Bombay High Court held that DNA test report cannot be solely relied on for conviction when the ocular evidence does not support it.

“When the ocular evidence was not supporting, conviction ought not to have been based only on the DNA test report i.e. medical report”, the court held.

A bench of Justice Vibha Kankanwadi and Justice Khobragade sitting at Aurangabad set aside a man's rape conviction observing that the victim changed her testimony and the DNA evidence was not reliable.

Bombay High Court Grants License To 83-Yr-Old Lawyer To Translate Mahatma Gandhi’s Devout Disciple Mira Ben’s Autobiography In Marathi

Case Title: Anil G. Karkhanis v. Kirloskar Press and Anr.

Citation: 2023 LiveLaw (Bom) 154

The Bombay High Court granted an 83-year-old lawyer the license to translate and publish the autobiography of devout Gandhian - Madeleine Slade also known as Mira Behn in Marathi.

Lawyer Anilkumar Karkhanis said he intended to publish the book titled "The Spirit's Pilgrimage" in Marathi, not for any commercial gain but in public interest. He has approached the court under section 32 of the Copyright Act 1957 for permission as the original publishers are untraceable.

The court took the petitioner’s undertaking on record that he would deposit the Royalty in the High Court, if and when any person raises a claim in that regard.

Not Necessary For Party To Raise Objection Regarding Unilateral Appointment Before The Arbitrator, Can Be Raised In S. 34 Petition: Bombay High Court

Case Title: Hanuman Motors Pvt Ltd & Anr. vs. M/s Tata Motors Finance Ltd

Citation: 2023 LiveLaw (Bom) 155

The Bombay High Court ruled that when one of the parties to the dispute has an overwhelming and unilateral power to appoint a Sole Arbitrator, the same completely vitiates such an appointment as the same is hit by Section 12(5) read with the Seventh Schedule of the Arbitration and Conciliation Act, 1996 (A&C Act).

While dealing with a petition filed under Section 34 of the A&C Act, the Court held that it was not necessary for the petitioner to raise an objection regarding the unilateral appointment before the arbitrator, to be able to raise the same in a Section 34 petition to challenge the arbitral award.

Positioning Of Vehicles Unclear, Evidence Of Rash And Negligent Driving Lacking: Bombay HC Upholds Acquittal In Case Over Death Of Cyclist & Bullock

Case Title: State of Maharashtra v. Kuldeep Subhash Pawar

Citation: 2023 LiveLaw (Bom) 156

The Bombay High Court upheld a man's acquittal from charge of culpable homicide for causing death of a cyclist and bullock while driving, on the ground that the direction of path of the bullock cart and the spot it was lying after the collision could not be ascertained from the evidence.

Justice SM Modak added the investigating officer should have prepared a map of the scene and the trial court should have questioned the witnesses to clarify and record correct direction of the vehicles.

Sanatan Sanstha Not Declared Banned Or Terrorist Organization Under UAPA: Bombay High Court

Case Title: Liladhar @ Vijay Lodhi v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 157

Sanatan Sanstha has not been declared a banned or terrorist organization under the Unlawful Activities (Prevention) Act, 2004, the Bombay High Court recently observed.

A division bench of Justice Sunil B Shukre and Justice Kamal Khata granted bail to two members of the Sanstha in the Sunburn Terror Attack Conspiracy 2017 and Nallasopara Arms Haul Case 2018.

“The most intriguing part of this case is that ‘Sanatan Sanstha’ is an organization which has not been declared to be a banned or terrorist organization or a frontal organization of any banned terrorist group within the meaning and contemplation of Unlawful Activities (Prevention) Act, 2004”, the court said.

The court said that the prosecution’s evidence was “disappointing” and there was no prima facie evidence against the accused.

Winning Bidder Cannot Challenge Tender Cancellation After Accepting Refund Of Deposit: Bombay High Court

Case Title: Ram Omprakash Patil v. Secretary, Government of India and Ors.

Citation: 2023 LiveLaw (Bom) 158

The Bombay High Court held that once the winning bidder of a tender accepts the refund of deposit paid to confirm the contract without any reservation, he cannot challenge the cancellation of the tender as the contract would stand rescinded.

A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne upheld the cancellation of Central Government’s tender for sale of an agricultural property.