Nominal Index [Citation 577 - 591]Dadaso Balaso Awad and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 577Nita Narendra Nadgouda v. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors. 2023 LiveLaw (Bom) 578High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 579High Court of Judicature at Bombay on its own Motion v. State...
Nominal Index [Citation 577 - 591]
Dadaso Balaso Awad and Anr. v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 577
Nita Narendra Nadgouda v. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors. 2023 LiveLaw (Bom) 578
High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 579
High Court of Judicature at Bombay on its own Motion v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 580
Nutan Warehousing Company Pvt. Ltd. v. The Commissioner 2023 LiveLaw (Bom) 581
Shaila Madhukar Gore and Ors. v. Union of India and Ors. 2023 LiveLaw (Bom) 582
Ajay Mahasukhlal Shah v. Chandrakant Babulal Shah and Ors. 2023 LiveLaw (Bom) 583
Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu 2023 LiveLaw (Bom) 584
Sughosh Joshi v. ECI and Anr. 2023 LiveLaw (Bom) 585
Special Director, Directorate of Enforcement v. Jaipur IPL Cricket Pvt. Ltd. 2023 LiveLaw (Bom) 586
National Insurance Co. Ltd. v. Lauretta Shashi Mogale and Ors. 2023 LiveLaw (Bom) 587
Tribhuvansingh Raghunath Yadav v. State of Maharashtra 2023 LiveLaw (Bom) 588
Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad 2023 LiveLaw (Bom) 589
Maharashtra Eastern Grid Power Transmission Company Ltd. v. Collector of Buldhana and Ors. 2023 LiveLaw (Bom) 590
Star Engineers (I) Pvt. Ltd. Versus Union of India 2023 LiveLaw (Bom) 591
Reports/Judgments
Case Title: Dadaso Balaso Awad and Anr. v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 577
The Bombay High Court upheld an advertisement by Directorate of Sports and Youth Services allowing degree holders in Physical Education and State-level sportspersons to compete for the Sports Coach positions.
A division bench comprising Justice GS Kulkarni and Justice Jitendra Jain dismissed a writ petition filed by sports coaches Dadaso Balaso Awad and Yogesh Prakash More praying that only diploma holders from NIS should be considered for the post of Sports Coach.
“This Court cannot lay down the conditions of eligibility, much less can it deal with the issue of whether the desirable qualifications is on par with the prescribed other qualification. This would amount to re-writing the advertisement by the Court which is not permissible. Question of equivalence/non-equivalence will also fall outside the domain of the Court”, the court held.
Case Title: Nita Narendra Nadgouda v. M/s. Garuda Carriers and Shipping (P) Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 578
Observing that the driver of a stationary vehicle on the road has the duty to turn on parking lights, the Bombay High Court attributed 100 percent negligence to the driver of a stationary truck that collided with a motorcycle at night.
Justice Shivkumar Dige enhanced the compensation awarded to the kin of the deceased in the fatal accident in 2003 in a plea seeking by the deceased's kin seeking higher compensation.
“It is significant to note that the driver of the truck / trailer has not examined himself or any witness to prove that he had taken proper care to avoid the accident. The parking lights of the said truck were not on. It was the duty of the driver of the offending truck to put on the parking lights when the truck was stationed on the road…I am holding that there was 100% negligence of the driver of the truck”, the court held.
Case Title: High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 579
Bombay High Court directed Maharashtra Pollution Control Board and BMC to jointly inspect 7 major public projects in Mumbai to ensure compliance with pollution control norms and take legal action against non-compliant stakeholders.
“We direct that the MCGM and the Pollution Control Board shall carry out a joint inspection of the 7 sites and immediately take requisite steps, pass orders and ensure that all the norms at these sites at least are followed. In case any of the stakeholders at these sites is found to be non-compliant, legal action shall also be taken by MCGM and MPCB”, a division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Girish S Kulkarni said.
The court was hearing a suo moto PIL on air pollution in Mumbai. Amicus Curiae, Senior Advocate Darius Khambata, drew attention to a news report highlighting the seven public project sites of the Municipal Corporation of Greater Mumbai (MCGM) which generated dust and caused air pollution. These sites are - road concretisation at suburban Bandra and Khar, the bullet train site at BKC, the Versova-Bandra sea link project, the Mumbai Metro-III, the Mumbai Coastal Road and the Mumbai Trans Harbour Link.
Case Title: High Court of Judicature at Bombay on its own Motion v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 580
The Bombay High Court criticized the state government for underutilization of the designated budget for the procurement of drugs and medical equipment.
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor said that unspent budget gets lapsed at the cost of the healthcare system.
“what we, prima facie, find is that the entire budget sanctioned for procurement of drugs and medical equipments has not been spent…We, thus, expect that adequate and appropriate steps shall be taken to spend the budgetary allocation in its entirety otherwise after sanctioning the amount, if it is not used, the same gets lapsed at the cost of the health care system.”
The court was dealing with a suo motu PIL regarding two government hospitals in Nanded and Aurangabad districts of Maharashtra which reported over 50 deaths within a span of four days.
Tea Stored In Warehouse Is An Agricultural Produce, Not Eligible To Service Tax: Bombay High Court
Case Title: Nutan Warehousing Company Pvt. Ltd. v. The Commissioner
Citation: 2023 LiveLaw (Bom) 581
The Bombay High Court issued a writ of certiorari against the Appellate Authority of Advance Ruling (AAAR) and held that “tea” stored in warehouses is agricultural produce and is not eligible for service tax.
The bench of Justice GS Kulkarni and Justice Jitendra Jain observed that a writ of certiorari can be issued only when there is a failure of justice and that it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error that strikes one by mere sight and does not mean a long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such errors should not require any extraneous matter to show their incorrectness.
Case Title: Shaila Madhukar Gore and Ors. v. Union of India and Ors.
Citation: 2023 LiveLaw (Bom) 582
The Bombay High Court held that it cannot issue direction for protection of a site as a monument of historical importance in the absence of a formal declaration of the site as a monument of State/National importance or a heritage site under a Central or State law or the Development Control and Promotion Regulations for Greater Mumbai (DCR).
A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor refused to order protection of Vithal – Rukumai/Rukhmini Temple in South Mumbai observing –
“we are unable to grant the prayers in this Writ Petition in absence of declaration or inclusion of the temple site in question as an ancient monument of National / State importance or as a heritage site.”
The court dismissed a writ petition by four persons seeking protection and preservation of the temple, situated in Girgaum, Mumbai, claiming it to be an ancient temple over 200 years old, associated with historical events.
The court, however, permitted the petitioners to approach authorities in the Central and State Governments, or the MCGM, to seek formal declaration of the temple site as an ancient and historical monument or for inclusion in the list of heritage buildings and precincts.
Case Title: Ajay Mahasukhlal Shah v. Chandrakant Babulal Shah and Ors.
Citation: 2023 LiveLaw (Bom) 583
The Bombay High Court observed that the property owner is the best judge of his residential needs, and the tenant cannot make the landlord adjust to smaller premises to protect the tenancy.
Justice Anuja Prabhudessai upheld an eviction decree observing that the landlords showed a “reasonable and bonafide requirement” of the premises as they along with 11 family members were currently occupying premises only 400 sq ft in area.
“The proven fact is that the need of the Plaintiffs (owners) for additional accommodation is genuine, honest and conceived in good faith and thus reasonable and bonafide. In such circumstances, challenge to the finding rendered by the courts below on the issue of bonafide and reasonable need of the premises cannot be countenanced for the simple reason that the landlord is the best judge of his residential requirement and the tenant cannot dictate terms to him as to how he can and how he should adjust in the available premises”.
Case Title: Hitachi Astemo Fie Pvt. Ltd. v. Nirajkumar Prabhakarrao Kadu
Citation: 2023 LiveLaw (Bom) 584
The Bombay High Court upheld the termination of an employee of Hitachi Astemo Fie Pvt. Ltd., an auto parts manufacturer, who was fired over provocative posts on Facebook.
Justice Milind N Jadhav observed –
“Freedom of speech and expression cannot be allowed to be transgressed beyond reasonableness. If that is allowed, it could lead to disastrous consequences. In a given case, one cannot and should not wait for the consequences to occur. Such acts itself are required to be nipped in the bud. Otherwise it would convey a wrong signal to the society at large.”
The court allowed a writ petition filed by Hitachi Astemo Fie Pvt. Ltd. against an order dated May 31, 2023 of the Labour Court, Pune setting aside the charge-sheet and enquiry against the employee as illegal.
Case Title: Sughosh Joshi v. ECI and Anr.
Citation: 2023 LiveLaw (Bom) 585
The Bombay High Court ordered the Election Commission of India (ECI) to conduct a bye-election immediately for the Pune Lok Sabha constituency, which has been vacant since the death of MP Girish Bapat on March 29, 2023.
A division bench of Justice GS Patel and Justice Kamal Khata criticized the ECI's reasoning for not conducting the by-election, claiming that it has been too busy since March 2023 with preparations for the 2024 Lok Sabha elections.
“In any parliamentary democracy, governance is by elected representatives. Those elected to Parliament are the voice of the people. If the representative is no more, another must be elected in his place. The people choose their representatives. A constituency cannot go unrepresented beyond the time prescribed in the statute. An indefinite period of an entire constituency remaining unrepresented is wholly unconstitutional and is fundamentally anathema to our constitutional structure”, the court observed.
The court quashed ECI's certificate stating that bye-elections will not be held as it is busy with preparation for 2024 General Elections and the candidate elected in the bye-election will have a very short tenure.
Case Title: Special Director, Directorate of Enforcement v. Jaipur IPL Cricket Pvt. Ltd.
Citation: 2023 LiveLaw (Bom) 586
The Bombay High Court upheld the reduction of the total penalty imposed on Jaipur IPL Cricket Pvt. Ltd. (JIPL), owner of the Rajasthan Royals franchise, from Rs. 98.35 crores to Rs. 15 crores for violation of foreign exchange laws and regulations.
A division bench of Justice KR Shriram and Justice Neela Gokhale observed that the Special Director of Enforcement failed to provide any justification for imposing a maximum penalty on the company and its directors and promoters.
“We find that the Special Director has completely failed to apply the doctrine of proportionality as interpreted and elucidated by the Apex Court in its various decisions, while choosing to impose maximum penalty on Respondents…We are in agreement with the finding of the Tribunal that in the absence of any discussion or justification pertaining to the basis for imposing the maximum penalty and juxtaposing this with the alleged acts attributed to each individual, the order of the Special Director is unsustainable”, the court held.
Case Title: National Insurance Co. Ltd. v. Lauretta Shashi Mogale and Ors.
Citation: 2023 LiveLaw (Bom) 587
The Bombay High Court held that arrears cannot be considered while calculating a person's salary for the purpose of compensation for a motor accident.
Justice Shivkumar Dige, while upholding enhancement of compensation to the family of a deceased in an accident, deducted the amount of arrears mentioned in his salary slip while calculating monthly income.
“This salary slip shows the arrears of Rs.8,900/- but Tribunal has considered this amount as salary of the deceased. In my view, arrears cannot be considered as salary. Hence, I am deducting this amount from the salary of deceased”, the court stated.
Case Title: Tribhuvansingh Raghunath Yadav v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 588
The Bombay High Court took suo moto cognizance of the issue of non-production of the undertrial prisoners before the appropriate courts at various stages.
Justice Bharati Dangre was dealing with a bail application by one Tribhuvansingh Raghunath Yadav, an accused in a forgery case who wasn't produced before the Metropolitan Magistrate Court in Andheri on 23 dates either physically or through VC.
“Bail Application No.1836 of 2023 is disposed off, as far as applicant is concerned. However, since the orders which are passed by me appointing the Amicus pertain to the larger issue of production of the under-trial prisoners before the appropriate courts at various stages, the Application is now titled as 'suo motu application' and the registry shall allot a new number to the same”, the court observed.
Case Title: Alka Bhausaheb Bhad v. Bhausaheb Ramrao Bhad
Citation: 2023 LiveLaw (Bom) 589
A woman who married a man under the misrepresentation that he was divorced would be treated as his 'wife' under Section 125 CrPC, and she is entitled to maintenance, the Bombay High Court held.
Justice Rajesh Patil ruled "that respondent cannot be allowed to deny the maintenance claim to the Petitioner, taking advantage of his own wrong. I am of the opinion as held in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit reported in (1999) at least for the purpose of Section 125 of CrPC, Petitioner would be treated as the 'wife' of the respondent."
According to the judgement, if the claimant woman can establish that she and the respondent have lived together as husband and wife, the court can presume them to be legally married spouses. Especially since the standard of proof to claim maintenance is more relaxed than what would be required in trials under IPC.
Case Title: Maharashtra Eastern Grid Power Transmission Company Ltd. v. Collector of Buldhana and Ors.
Citation: 2023 LiveLaw (Bom) 590
The Bombay High Court held that a transmission licensee appointed as the Telegraph Authority also has the power to determine the compensation amount along with the power to pay compensation for using land for installing electricity transmission lines.
Justice Avinash G Gharote of the Nagpur bench observed that the power to pay compensation under section 10(d) of the Indian Telegraph Act, 1885 includes the power to determine compensation as without determination of compensation, there cannot be any payment.
“The contention of Mr. Kothari, learned counsel for the respondent No.4 (landowner) that section 10(d) of the Telegraph Act only contemplates a power to pay and not to determine the compensation and the compensation has to be determined by the District Collector, in my considered opinion is misconceived…”, the court held.
If the District Collector had the authority to determine the compensation, section 10(d) of the Telegraph Act would have contained such a provision, the court observed.
Bombay High Court Directs Dept. To Permit Amend In GSTR-1, Either Online Or Manual
Case Title: Star Engineers (I) Pvt. Ltd. Versus Union of India
Citation: 2023 LiveLaw (Bom) 591
The Bombay High Court directed the department to permit the petitioner or assessee to amend or rectify Form GSTR-1 for the period July 2021, November 2021, and January 2022, either online or manually.
The bench of Justice GS Kulkarni and Justice Jitendra Jain observed that a bona fide, inadvertent error in furnishing details in a GST return needs to be recognized and permitted to be corrected by the department when, in such cases, the department is aware that there is no loss of revenue to the government. The free play in the joint requires eminent recognition. The department needs to avoid unwarranted litigation on issues and make the system more assessee-friendly. The approach would also foster the interest of revenue in the collection of taxes.
Other Developments
The Bombay High Court sought an explanation from the District Judge, Thane and the District Judge and Additional Sessions Judge, Belapur for the prolonged delay in trial in a murder case in which the accused has been in custody for the past 5 years without framing of charges.
Justice Bharati Dangre expressing dismay over the prolonged delay said that it is time to fix accountability on individuals as the undertrial deserves an answer.
“…at some or the other time, the system must fix an accountability on individuals, rather than talking about the delays in the process on account of huge pendency. An accused, who is incarcerated as an under-trial prisoner for last five years, definitely deserve an answer”, the court said.
The court was dealing with a bail application filed by the accused on the grounds of prolonged incarceration. Both judges are required to submit their explanations by December 18, 2023.
The Bombay High Court urged the Maharashtra State Information Commission (SIC) to establish a reasonable time limit for the expedited disposal of second appeals and complaints filed under the Right to Information (RTI) Act, 2005.
A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor asked the SIC to evolve norms for more efficient functioning once its vacancies are filled by the first week of February 2024.