Nominal Index [Citation 462 – 473]

1. JSW Steel Limited v. Bellary Oxygen Company Private Limited & Anr. 2022 LiveLaw (Bom) 462

2. Kiran Rajaram Powar v. Mumbai Cricket Association 2022 LiveLaw (Bom) 463

3. Monic Sunit Ujjain v. Sanchu M. Menon and Ors. 2022 LiveLaw (Bom) 464

4. Bhujanga s/o Sarangdhar Sarkate and Anr. v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 465

5. M/s. Samiksha Construction Company v. Ambernath Municipal Council and Ors. 2022 LiveLaw (Bom) 466

6. Naresh Kanayalal Rajwani & Ors. v. Kotak Mahindra Bank Limited & Anr. 2022 LiveLaw (Bom) 467

7. Mohd. Sagir Bashir Chauhan v. The Deputy Inspector General of Prisons, Eastern Region, Nagpur 2022 LiveLaw (Bom) 468

8. Dimple Sunil Warthe v. State of Maharashtra 2022 LiveLaw (Bom) 469

9. Future Generali India Life Insurance Company Limited v. Partha S/o. Sarathy Sarkar 2022 LiveLaw (Bom) 470

10. Raviraj Rajendra Patil v. Gram Panchayat Bachni 2022 LiveLaw (Bom) 471

11. Dr. Harish Shetty v. State of Maharashtra 2022 LiveLaw (Bom) 472

12. Mangesh s/o Deorao Kannake v. State of Maharashtra 2022 LiveLaw (Bom) 473

1. Arbitration Clause In An Agreement Can't Be Invoked For Another Agreement, Operating Independently: Bombay High Court

Case Title: JSW Steel Limited v. Bellary Oxygen Company Private Limited & Anr.

Citation: 2022 LiveLaw (Bom) 462

The Bombay High Court has ruled that mere reference to an Agreement containing an arbitration clause, in a subsequent Agreement, will not bring about a consequence envisaged under Section 7(5) of the Arbitration & Conciliation Act, 1996 (A&C Act), to the effect that the arbitration agreement would be incorporated into the subsequent Agreement.

The Court added that the reference contemplated under Section 7(5) of the A&C Act, should be such so as to make the arbitration clause part of the contract.

The bench of Justice G.S. Kulkarni observed that the parties had categorically confined the applicability of the arbitration agreement only to the Agreement containing the arbitration clause, and that they had consciously not provided for any arbitration agreement in the subsequent Agreement.

2. Should Have Declared Conflict of Interest under Section 38(2) of Mumbai Cricket Association's Constitution: Bombay HC Upholds Former U-19 India Captain's Suspension From Cricket For A Year

Case Title: Kiran Rajaram Powar v. Mumbai Cricket Association

Citation: 2022 LiveLaw (Bom) 463

The Bombay High Court upheld former Ranji player and former captain of under-19 Indian team Kiran Powar's removal from the Mumbai Cricket Association's Apex Council, and also upheld the bar on him from playing cricket for a year.

The division bench of Justices SV Gangapurwala and RN Laddha that Powar was appointed to the Apex Council in October 2019. However, he failed to declare that his brother was appointed as a coach for MCA between 2017-18 and that his (brother's) name was under consideration.

The disclosure should've been made under section 38(2) of MCA's constitution, the order states. Under section 38(1)(v) any person who occupies a position of influence must disclose where a friend, relative or close affiliate is in the zone of consideration.

3. Offence U/S138 NI Act Not Attracted If The Cheque Is Given As Security for a Loan From Unlicensed Money Lender: Bombay High Court

Case Title: Monic Sunit Ujjain v. Sanchu M. Menon and Ors.

Citation: 2022 LiveLaw (Bom) 464

The Bombay High Court rejected a criminal revision application in a complaint under the Negotiable Instruments Act observing that section 138 cannot be attracted if the cheque is given as security for a loan from a unlicensed money lender.

"In cases of money lending business without license, the provisions under Section 138 of Negotiable Instruments Act are not attracted", Justice Prakash Naik observed in his order.

4. Land Acquisition: Evidence produced before reference court prior to HC remanding the case back should be considered if no new evidence is produced after remand

Case Title: Bhujanga s/o Sarangdhar Sarkate and Anr. v. State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 465

The Nagpur bench of the Bombay High Court awarded a farmer additional monetary compensation for his mango trees and well in a land acquisition case. The court also enhanced the overall compensation granted by the reference court.

While hearing the case for the first time, the reference court had considered the location as well as the trees and the well and enhanced the compensation awarded by the acquisition officer. However, after hearing the matter for the second time, it discarded the evidence given the first time around and reduced the compensation. It also did not award compensation for the well and trees.

The court noted that the referral court discarded the evidence laid down before the remand without any reason. The court stated that the reference court should have considered the evidence given by appellant before remand as no new evidence was given by VIDC after the remand.

5. 'Would Be Inappropriate To Accept Challenge Against Use Of E-Vehicles In Present Times Of Advancement': Bombay High Court

Case Title: M/s. Samiksha Construction Company v. Ambernath Municipal Council and Ors.

Citation: 2022 LiveLaw (Bom) 466

The Bombay High Court refused to accept a construction company's challenge to a civic body's tender notice mandating that the successful bidder provide hundred e-vehicles for collection and transportation of municipal solid waste. Observing that a shift towards e-Vehicles is discernible in the present times.

Chief Justice Dipankar Datta and Justice Abhay Ahuja also relied on Section 316 of the Maharashtra Municipal Councils, Nagar Panchayats, and Industrial Township Act, 1965 and said that if the Administrator does not have the authority to issue fresh tender, by the same logic, the Administration did not have the authority to extend the petitioner's contract.

6. Participation In Arbitral Proceedings, Does Not Disentitle Party To Challenge Award On Ground Of Unilateral Appointment Of Arbitrator: Bombay High Court

Case Title: Naresh Kanayalal Rajwani & Ors. v. Kotak Mahindra Bank Limited & Anr.

Citation: 2022 LiveLaw (Bom) 467

The Bombay High Court ruled that merely because a party participated in the arbitration proceedings, it is not disentitled from challenging the arbitral award on the ground that the arbitration proceedings were vitiated due to the unilateral appointment of the Arbitrator by the opposite party, falling foul of Section 12(5) read with the Seventh Schedule of the Arbitration and Conciliation Act, 1996 (A&C Act).

The bench of Justice Manish Pitale held that Section 12(5) of the A&C Act can be waived only in terms of the proviso to Section 12(5).

The Court ruled that in the absence of framing of issues by the Arbitral Tribunal and consideration of the stand taken by a party, granting opportunity to the party to lead evidence is of no significance. Thus, the bench concluded that the award passed by the Arbitrator was in violation of the principles of natural justice.

7. Recording Of Reasons For Denying Furlough Not An Empty Formality: Bombay HC Directs Prison Dept To Pay Litigation Costs In Blast Convict's Case

Case Title: Mohd. Sagir Bashir Chauhan v. The Deputy Inspector General of Prisons, Eastern Region, Nagpur

Citation: 2022 LiveLaw (Bom) 468

The Bombay High Court directed the Superintendent of Amravati Central Prison to pay the legal expenses or the 'cost of a petition' for denying furlough to a convict on "stereotyped reasons".

"The requirement of recording of reasons under Rule 8(7) of the Prisons Rules, 1959 is not an empty formality and certainly, is not a license for passing an order recording same old reasons almost like a cliché. It is a well settled principle of law that whenever there is discretion, it comes with responsibility to exercise it reasonably, fairly and in a manner as to fulfill the object of legislation under which it is given," the court observed.

The bench of Justices S.B Shukre and M.W Chandwani added that the discretion conferred upon the sanctioning Authority is not unguided and uncanalized.

8. After Nearly 3 Years In Jail, Bombay High Court Grants Bail To Woman Accused Of Throwing Her Newborn From Top Of Building

Case Title: Dimple Sunil Warthe v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 469

The Bombay High Court granted bail to a woman, a house help, accused of throwing her new-born baby from the top of the building on December 5 in 2019.

Justice M. S. Karnik observed that the woman has been in custody for over 2 years and 11 months and the charge sheet already stands filed.

"No purpose will be served by prolonging the custody of the applicant – a woman any further. The possibility of the trial commencing any time soon in the near future is remote," the bench said.

9. No provision in IPC providing that Managing Director or Director will be vicariously liable if the accused is a company: Bombay High Court

Case Title: Future Generali India Life Insurance Company Limited v. Partha S/o. Sarathy Sarkar

Citation: 2022 LiveLaw (Bom) 470

The Bombay High Court set aside summons issued to the MD and the Legal Head of a company in a criminal defamation case observing that the IPC does not provide anywhere that the Managing Director (MD) will have vicarious liability when the accused is a company.

"Moreover, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Even under a special statute when the vicarious criminal liabilities fastened on the person on the premise that he was incharge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled," the court added.

10. Bombay High Court Rejects Plea Alleging Delayed Submission Of Caste Certificate By Sarpanch, Says He Can't Be Blamed For Situation Created By COVID

Case Title: Raviraj Rajendra Patil v. Gram Panchayat Bachni

Citation: 2022 LiveLaw (Bom) 471

The Bombay High Court dismissed a plea against election of the Sarpanch of a village who could not produce caste validity certificate within one year from the declaration results due to COVID-19 restrictions.

Justice S. M. Modak observed in his order that "the factors prevailing due to COVID pandemic were beyond the control of Respondent No.2 (elected Sarpanch). In normal circumstances, the Respondent No.2 could have approached this Court when validity is not granted within 12 months. However, he cannot be blamed for not approaching in view of COVID pandemic."

11. 'Regrettable State of Affairs': Bombay High Court Slams Maharashtra's State Mental Health Authority For Inaction

Case Title: Dr. Harish Shetty v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 472

Observing a "regrettable state of affairs" at the State Mental Health Authority (SMHA) the Bombay High Court directed the CEO of SMHA to submit details as to when was the fund created, the sum available in it, and whether it is adequate; to prepare a proposal for a work programme as per Section 53(1)(c) of the Mental Health Care Act, 2017 and a statement of revenue and expenditure along with details of the budget. Further, the court sought details of all activities undertaken by the SMHA previously and the schedule of programmes of work to be undertaken.

A division bench of Justices Nitin Jamdar and Gauri Godse sought to know how the Maharashtra government plans to implement Section 54 of the Act mandating the appointment of a manager to take charge of a mentally ill person's property. The bench directed the Secretary, Department of Public Health, Maharashtra to place on record details of tasks so performed by the appropriate Government as per the Act since 2017.

12. Murder Charge Ought To Have Been Principal Charge, Trial Court Committed Grave Error: Bombay HC While Acquitting Husband In Dowry Death Case

Case Title: Mangesh s/o Deorao Kannake v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 473

The Bombay High Court observed that parents not taking any action once daughter informs them about dowry demand and harassment is not the conduct of a prudent person while setting aside a man's dowry death conviction.

The court stated that the trial court committed grave error in not framing principal charge of murder considering the cause of death was strangulation with post mortem drowning.

The court said that the sessions judge was confused between offence of murder on offence of dowry death and ignored that the ingredients of the two offences are totally different. The Sessions Judge proceeded on the assumption that offence of dowry death would take in its fold offence of murder, the court observed.

The sessions judge had concluded that the deceased died an unnatural homicidal death due to bodily injuries. The court said that this conclusion is misconceived and stated, "…homicide means killing of a man by a man. Section 299 of the IPC defines culpable homicide. Therefore, there cannot be unnatural homicidal death.…in this case the death was pure and simple homicidal death".

The sessions judge had acquitted the other accused persons observing that no direct role has been attributed against them and there are general and vague allegations of harassment. The court found this unsustainable as there was identical evidence against the appellant as well.

Other Developments

1. Not Practical To Appoint Transgenders, Need To Frame Policy First: State Moves Bombay HC Against MAT Order On Constable Recruitment In Police Dept

Case Title: State of Maharashtra v. Arya Vijay Pujari

The Maharashtra Government has approached the Bombay High Court against directions to the state to create the third option of 'other gender,' after male and female in application forms of all recruitments of the Home Department. The state has called it an "overreach of jurisdiction" and an "interference in the domain of policy making."

The petition pertains to recruitment of police constables, drivers and State Reserve Police Force.

2. Maha Govt Too Lazy To Fulfil Duties, 40% Vacancy at MACT Mumbai, No Registrar Since 2019 – Bar Association Moves Bombay HC

Case Title: Bar Association of MACT Mumbai v. State of Maharashtra

Bar Association of MACT Mumbai has approached the Bombay High Court to fill up 40% staff and adjudicating officer vacancy at the Motor Accident Claims Tribunal (MACT), Mumbai.

According to the petition, MACT Mumbai has eight courtrooms and 124 sanctioned posts. However, only 6 courtrooms have judges and the other two courtrooms have been vacant since 2019. Only 77 positions are filled out of 124. MACT, Mumbai has had over 40% of its posts vacant for the last several years, the petition states.

3. Bombay High Court Questions ASI On Steps Taken To Prevent Paid 'VIP Darshan' At Trimbakeshwar Temple

Case Title: Lalita Sandeep Shinde v. Archaeological Survey of India and Ors.

The Bombay High Court asked Archaeological Survey of India (ASI) to inform it about the steps taken by it to implement its own instructions against charging of Rs 200 entry fees for VIP darshan by Trimbakeshwar Temple Trust.

The division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja directed the ASI to file its reply while posting the matter to January 16, 2022 for further hearing. It also issued notice to the respondents including the Trust.

4. Bullock Cart Racing: PIL In Bombay High Court Challenges Withdrawal Of Cases Against Organizers

Case title – Deepak Vithal Adhav & Ors. v. State of Maharashtra & Ors

A PIL has been filed in the Bombay High Court challenging a Government Resolution (GR) for withdrawal of prosecution against persons organising or participating in bullock cart races in the state.

A division bench of Chief Justice Dipankar Datta and Justice Abhay Ahuja on Wednesday posted the matter for hearing on January 12, 2023.

The GR provided that once the committee constituted under it recommends the withdrawal of prosecution in a certain case, the public prosecutor has to approach the concerned court for the same.

According to the petition, the prosecutor has to take a decision on a case-to-case basis weighing various factors such as severeness of the crime and its impact on society before deciding to withdraw a prosecution. The public prosecutor's role is not limited to seeking directions from the court and mechanical manner without application of mind, the petitioner states. This violates section 321 of the Cr.P.C. and parameters laid down by the Supreme Court in State of Kerala v. K. Ajith, the petition contends.

5. BJP MP Pragya Thakur Withdraws Plea Seeking Discharge In Malegaon Blast Case After Bombay High Court Says Trial At Advanced Stage

Case Title: Court on its own Motion v. Union of India and others

BJP MP Pragya Singh Thakur and two other accused in the Malegaon 2008 blast case withdrew their petitions pending before the Bombay High Court today, seeking to be discharged from the case.

A division bench led by Justice AS Gadkari allowed them to withdraw their petitions. The judge earlier remarked that the trial had reached a very advanced stage for their pleas to be considered.

The petitions withdrawn include discharge appeals filed by Pragya Singh Thakur and Sameer Kulkarni against the Special NIA court order refusing to discharge them in 2017.

Accused Col Prasad Purohit also withdrew two out of three petitions filed by him. While one of the petitions alleged that the sanction under UAPA was defective, the other plea alleged that no sanction under section 197 (2) of the CrPC was taken.

His third discharge appeal which also cites the absence of a sanction under section 197(2) of the CrPC was argued on Monday and Tuesday and is reserved for orders.

6. Mumbai Local: PIL In High Court Seeks Exclusive Compartment For Senior Citizens

Case Title: K. P. Purushothaman Nair v. Union of India and Ors.

A PIL has been filed in the Bombay High Court seeking a separate compartment with separate entrance for senior citizens in local trains similar to the one provided exclusively for cancer patients and persons with disability.

According to the petition, 14 earmarked seats for senior citizens are not sufficient. Further, these 14 seats do not have easy, free, and unobstructed entrance. A separate compartment with separate entrance will also increase the number for seats available for senior citizens to 25, the petition contends.

7. Bombay High Court Seeks FDA's Stand After Two Of Three Laboratories Find Johnson & Johnson Baby Powder Complies With Statutory Requirement (livelaw.in)

Case Title: Johnson and Johnson Private Limited v. State of Maharashtra

Fresh testing of Johnson and Johnson Pvt Ltd.'s baby powder samples at two laboratories have found them within the statutory requirement regarding the pH (Potential of Hydrogen) limit for baby powders for infants, according to reports submitted before the Bombay High Court on Friday

A third laboratory found that the pH level for the sample was unstable.

A division bench of Justice S V Gangapurwala and Justice S G Dige directed copies of the reports to be given to the petitioner and posted the matter for hearing on December 6, 2022. The bench was hearing the company's petition against cancellation of its licence by the Food and Drug Administration (FDA) to manufacture baby powder at its Mulund factory.

8. Bombay High Court Stays CM Eknath Shinde-led Govt's Order To Halt Development Project Initiated By Predecessor Thackeray-led Govt At Belewadi

Case Title: Belewadi Village Panchayat. Versus State of Maharashtra and Ors.

The Bombay High Court stayed orders issued by the CM Eknath Shinde led Maharashtra Government suspending the rural development project initiated by the previous Maha Vikas Aghadi (MVA) government at Belewadi Village, till December 12.

A division bench of Justices Ramesh D Dhanuka and S G Dige prima facie observed that the State government, having already issued the work order and allocated the budget for village development cannot suspend the work which would result in lapse of budget allocated for the project, without any basis.