150 Important Judgments Of Bombay High Court In 2023: Part I

Case Title: Naresh s/o Netram Nagpure and Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 4

Once the court extends the judicial custody of an accused, the refusal of sanction to prosecute will not invalidate the extension of custody, the Bombay High Court held while refusing to grant default bail in a case under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA).

The division bench of Justices Sunil B Shukre and MW Chandwani of the Nagpur bench observed that the power of Special Judge under MCOCA to extend judicial custody by 90 days and power of Additional DGP to give sanction for prosecution under MCOCA have different object.

2. Alcoholic Breath in Medical Report Proof of Inebriation, Not Entitled to Compensation Under Railway Act – Bombay High Court

Case Title: Shobha w/o Deepak Thakre and Ors. v. Union of India

Citation: 2023 LiveLaw (Bom) 8

The Bombay High Court held that an accident while boarding a train in an inebriated state would disentitle a person from receiving compensation under the Railways Act of 1989.

Justice Abhay Ahuja of the Nagpur bench dismissed an appeal filed by 38-year-old deceased Deepak Thakare's wife Shobha against an order of the Railway Claims Tribunal, Nagpur dated 14th June, 2019. The appeal was filed under section 23 of the Act. The court observed that the MLC report from the community health centre showed the deceased had an alcoholic breath indicating he was intoxicated while boarding the train. This report was signed by an officer on duty and also not denied by the applicant. The tribunal is correct in holding that the case of the appellants would fall under exception (d) to section 124A of the Railways Act, the court observed.

3. Wife's Refusal For DNA Test No Ground for Adverse Inference For Maintenance – Bombay High Court

Case Title: Namdeo s/o. Digambar Giri v. Seema

Citation: 2023 LiveLaw (Bom) 16

The Bombay High Court dismissed a man's petition challenging the grant of maintenance to his wife, observing that a claim regarding wife's refusal during cross examination to undergo DNA test for ascertaining the paternity of girl child is not sufficient to draw an adverse inference.

Justice Kishore C. Sant of the Aurangabad bench said: “Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife.”

4. Bombay High Court Quashes Orders Cancelling Johnson & Johnson's License For Baby Powder Production, Says FDA Action 'Arbitrary'

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

Citation: 2023 LiveLaw (Bom) 19

The Bombay High Court quashed the Maharashtra Food and Drug Administration's orders cancelling Johnson and Johnson's license to manufacture its baby powder at the Mulund factory.

Johnson and Johnson will now be able to manufacture and sell its baby powder.

A division bench of Justice Gautam Patel and Justice SG Dige said FDA's action was unreasonably delayed and therefore arbitrary. "An administrator cannot use a hammer to kill an ant," said the court.

The court said it is not reasonable that the moment one sample from the batch is found not of standard quality, the license is cancelled. "It's an extreme approach. [There is] nothing to show FDA has adopted such a stringent standard with other J&J products or manufacturers," the bench said.

Observing that a watchdog like FDA is necessary, the court however said it cannot protract proceedings for weeks and months.

5. Award Against Guarantor Who Is Not Member Of Multi State Co-Op Society, Without Jurisdiction: Bombay High Court

Case Title: Deepti Prakash Ghate v. NKGSB Co. Op. Bank Ltd.

Citation: 2023 LiveLaw (Bom) 25

The Bombay High Court set aside an award passed pursuant to an arbitral reference made under Section 84(1) of the Multi-State Cooperative Societies Act, 2002 (MSCS Act), since the award debtor was not a member of the Co-operative Society.

The bench of Justice Manish Pitale ruled that a dispute, which is not covered under Section 84 (1) of the MSCS Act, would not be capable of being referred to arbitration. Thus, the Court concluded that the arbitral award was rendered without jurisdiction against the petitioner/ award debtor.

The principal borrower, M/s. Erica Healthcare Pvt. Ltd., was advanced a loan and cash credit facility by the respondent Bank, NKGSB Co. Op. Bank Ltd (a Multi-State Co-operative Society). A Deed of Guarantee was executed and the petitioner, Deepti Prakash Ghate, along with other parties, were made guarantors.

6. Assessee Not Entitled for Deduction without A Certificate Declaring The Warehouse as Part Of The Port: Bombay High Court

Case Title: Principal Commissioner of Income Tax v. Maharashtra State Warehousing Corporation

Citation: 2023 LiveLaw (Bom) 28

The Bombay High Court held that the assessee cannot claim the deduction under Section 80IA(4) of the Income Tax Act in the absence of a certificate declaring the warehouse to be part of the port.

The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that the Jawaharlal Nehru Port Trust (JNPT) has declined to issue a certificate that the warehousing of the assessee is part of the port.

The ITAT held that the assessee has fulfilled all the conditions laid down for the deduction claimed under section 80IA(4).

Section 80IA allows a deduction of 100% of profits obtained from businesses for a period of 10 consecutive years out of 15 years from the date of its commencement.

The court, while dismissing the appeal, held that a similar claim was also denied to the assessee for the year 2009–10 in the absence of the certificate.

7. Section 498A IPC | Mental Cruelty Possible Even If In-Laws Reside Separately: Bombay High Court

Case Title: Sunita Kumari and Ors. v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 32

The Bombay High Court observed that mental cruelty is an abstract concept and can be committed even if in-laws reside separately.

"The mental cruelty is an abstract concept and it is a matter of experience for a person who is subjected to cruelty … Sometimes, the taunts might be seen to be innocuous by one person, while they may not be necessarily so perceived by another person … Such being the nature of mental cruelty, it is not necessary that it must take place in the physical presence of persons and that it can be handed out even from a distant place," the court observed.

A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur dismissed with costs an application filed by relatives of a man seeking quashing of criminal proceedings against them instituted by his wife.

The court said that there is a prima facie case from the allegations despite the applicants residing away from the complainant. Cruelty is not only physical but can also be mental, the court observed. FIR forms a foundation of a criminal case. No strong edifice of a criminal case can be built unless its foundation is sound if the foundation is strong, it would give rise to a strong criminal case which is the case in the present matter, the court said.

8. CBDT Circulars Can't Prescribe Limitation To Decide Application For Compounding Of Offence: Bombay High Court

Case Title: Footcandles Film Pvt Ltd. & Anr. v. Income Tax Officer – TDS & Ors.

Citation: 2023 LiveLaw (Bom) 34

The Bombay High Court ruled that orders, instructions or directions issued by the CBDT under Section 119 or under the Explanation to Section 279 (6) of the Income Tax Act, 1961, cannot put fetters on the power of income tax authorities under Section 279(2) to consider an application for compounding of offence, by prescribing a period of limitation.

The bench of Justices Dhiraj Singh Thakur and Valmiki SA Menezes, took note that Section 279 (2) of the Income Tax Act, which provides for compounding of certain offences, either before or after the institution of proceedings, does not provide any rule of limitation.

Thus, the Court held that the CBDT “Guidelines for Compounding of Offences under Direct Tax Laws, 2019”, dated 14.06.2019, which create a limitation on the time within which an application under Section 279 (2) is required to be filed, is of no consequence. The said Guidelines do not take away the jurisdiction of the income tax authorities to consider an application for compounding of offence at any time during the pendency of the proceedings, the Court said.

9. Bombay High Court Rejects Pune RTO's Refusal To Grant License To Bike Taxi Aggregator Rapido

Case Title: Roppen Transportation Services Pvt. Ltd. and Anr. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 37

The Bombay High Court rejected a petition by Roppen Transportation Services Pvt Ltd (Rapido), a bike-taxi aggregator, against Pune RTO's refusal to grant it a license for plying two and three-wheeler taxis.

A division bench of Justice GS Patel and Justice SG Dige pointed out that there are discrepancies in Rapido's stand as on one hand, it is saying license cannot be rejected on the ground of the absence of State policy on two-wheelers while on the other hand, it cites the absence for a state policy for non-compliance with the Motor Vehicle Aggregator's Guidelines 2020 issued by the Centre.

The court added that the Centre's Motor Vehicle Aggregator Guidelines, 2020 guidelines do not restrain the State Government from making its guidelines. It added that an aggregator cannot assume permission to ply.

10. Mere Pendency Of Criminal Case Not Sufficient to Refuse Passport Renewal: Bombay High Court

Case Title: Nijal Navin Shah v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 38

The Bombay High Court directed the passport authorities to not reject a man's passport renewal application merely because of pendency of criminal proceedings against him, observing that mere pendency of proceedings is not sufficient to deny him the right to renew passport.

“In the facts of the case merely because the offence under Sections 406, 420, 120(b) read with 34 of IPC is pending against the applicant, the said fact by itself is not sufficient to deny the right of the applicant for renewal of the passport," the court said.

Justice Amit Borkar set aside the magistrate's order refusing to grant permission for renewal of license of a man booked for offences of criminal breach of trust, cheating, and criminal conspiracy.

11. Injuries Need Not Occur Inside Police Station For Custodial Death: Bombay High Court

Case Title: Sunita w/o Kalyan Kute v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 40

The Bombay High Court held that for a death to be a custodial death, it doesn't matter whether the injuries occurred inside the police station or at an outpost as long as the injuries were inflicted when the deceased was in any manner in the custody of the police.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase of Aurangabad further said, “State is the protector of the life of its citizens if it's employee undertakes torturous act under the guise of power, then it has to compensate such citizen or legal representative of such citizen”

The court referred to D.K. Basu v. State of West Bengal and reiterated the Apex Court's observation that custodial death is one of the worst crimes in a civilized society.

12. Right to Choose Mother's Alone, Not Medical Board's; Court Can't Abrogate Her Right: Bombay High Court Allows Medical Termination of 33-Week Pregnancy

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 46

The decision to terminate a pregnancy is the woman's alone after a severe foetal abnormality is found irrespective of the length of the pregnancy, the Bombay High Court held while allowing a married woman to terminate her 33-week pregnancy against the advice of the Medical Board. The bench noted that the Medical Board had advised against the termination merely because the pregnancy is at an advanced stage. The court, however, said if termination is refused it would not only be condemning the foetus to a less than optimal life, but would also be condemning the mother to a future that would certainly rob her of every positive attribute of parenthood.

13. Bombay High Court Dismisses Petition Challenging Appointment of Complainant's Erstwhile Lawyer As Special Public Prosecutor In Murder Case

Case Title: Shivaji S/o Rajaram Take v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 52

The Bombay High Court upheld the appointment of Ujwala Pawar as Special Public Prosecutor in the trial case related to the murder of Advocate Sambhaji Rajaram in Maharashtra's Ahmednagar. Pawar had previously represented the complainant in the same case.

A division bench of Justices Vibha Kankanwadi and Abhay Waghwase observed that just like the accused who has a constitutional right to be represented by an Advocate of his choice, even the informant has some right, may be in a restricted way, to seek the State's permission for an Advocate of his choice.

14. Decide On Real Estate Proposals For Environment Clearance In Accordance With DCPR-2034: Bombay High Court To SEIAA

Case Title: NAREDCO West Foundation v. Union of India

Citation: 2023 LiveLaw (Bom) 57

The Bombay High Court directed the Maharashtra State Environment Impact Assessment Authority (SEIAA) to re-start deciding proposals pending before it for environmental clearance on a petition by NAREDCO, a self-regulatory real estate body.

The court of ACJ SV Gangapurwala and Sandeep Marne ordered that all project proposals should be considered in accordance with the new Development Control and Promotional Regulations 2034 and unified development regulations for Maharashtra within eight weeks.

“prima facie there appears to be deviation in the exact location at which open recreational spaces is to be provided. Therefore, SEIAA is required to take into consideration the provisions of DCPR 2034 or UDCPR as applicable, in order to determine permissibility of provision of open recreational spaces on podium level in a particular project. The judgment and order dated 13 September 2022 of NGT in case of Anil Tharthare vs. The Secretary, Environment Dept. State of Maharashtra & Ors. cannot be construed to mean a blanket prohibition to consider the proposals of the projects governed by DCPR 2034 or UDCPR”

15. Liquor Ban For A Long Period Violates Merchants' Right To Livelihood: Bombay High Court Limits Prohibition To MLC Polls Voting Day

Case Title: All India Wine Producers Association v. Deputy Secretary and Assistant Chief Election Officer, Maharashtra State & Ors.

Citation: 2023 LiveLaw (Bom) 58

The Bombay High Court reduced the four-day ban on liquor sale in Thane, Palghar, Raigad and Nashik districts due to Maharashtra Legislative Council graduate constituencies elections to just the day of voting observing that a longer ban would violate the merchants' right to livelihood under Article 21 of the Constitution.

“Imposing a prohibitory ban for long period on merchant establishments and establishments which provide livelihood is contrary to the enshrined principles under Article 21 of the Constitution of India and whenever such thing happens, the Authorities need to be thoughtful”, the court stated.

Justice Milind Jadhav directed that the ban be restricted to only January 30, 2023, i.e., the day of voting.

16. Bombay High Court Upholds Grant Of Maintenance To Woman Who Had Accepted Alimony Under 'Customary Divorce'

Case Title: Gajanan v. Surekha

Citation: 2023 LiveLaw (Bom) 61

Observing that a person's approaching the civil court for divorce itself shows that customary divorce does not exist in his caste, the Bombay High Court upheld an order granting maintenance to a woman under the Protection of Women from Domestic Violence Act, 2005 (DV Act).

Justice S. G. Mehare, in the husband's challenge to the award, held that:

“For claiming any customary right, the parties claiming such right are bound to prove that the customs of their caste or race still exist and the community at large is regularly observing such customs. Since the applicant approached the Civil Court for divorce, it can safely be held that the customary divorce was not in existence in their caste. Therefore, the respondent cannot claim that after the customary divorce, the domestic relationship ceased, and the applicant is not entitled to the reliefs under D.V. Act.”

17. Opportunity To Examine Vital Witness Cannot Be Denied Only Due To Failure To Show Reason For Omitting Name In Witness List: Bombay High Court

Case Title: Dinesh Singh Bhim Singh v. Vinod Shobhraj Gajaria

Citation: 2023 LiveLaw (Bom) 62

The Bombay High Court held that failure to show reason for not including witness names in the witness list under Order XVI Rule 1(1) of CPC alone cannot be a reason to disallow the plaintiff from examining witnesses who are vital for determining the dispute.

Justice Sandeep V. Marne, while upholding trial court's order allowing the plaintiff to examine two witnesses held, “Court would not deny them the opportunity by showing technical rules of procedure, drafted for advancing the cause of justice.”

18. Domestic Violence Case Can Be Quashed By High Court Under Section 482 CrPC Even After Conviction: Bombay High Court

Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 67

There is no embargo on quashing a case emanating from a matrimonial dispute even after conviction when an appeal is pending, the Bombay High Court said while quashing a domestic violence case filed by the wife against her husband and in-laws. The accused in the case had been convicted by the trial court in March 2021.

A division bench of Justices Anuja Prabhudessai and RM Joshi observed that the high court's powers under Section 482 of CrPC can be exercised in post-conviction matters when an appeal is pending before a judicial forum.

The court noted that the parties had settled the matter and the wife had voluntarily accepted the settlement.

19. Instakart Not Dealer, Agent Or Importer Under Maharashtra Municipal Corporation Act; Not Liable To Pay Local Body Tax: Bombay High Court

Case Title: M/s. Instakart Services Private Limited v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 68

The Bombay High Court held that Flipkart's delivery partner Instakart is not an importer, commission agent or a dealer under the Municipal Corporation Act, 1888 and is not amenable to Local Body Tax (LBT).

A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani while setting aside Pune Municipal Corporation's notice asking Instakart to register for assessment of LBT held that Instakart is doing import of goods for the purpose of delivery to some other person and hence acts like a courier, postman, or delivery person.

20. Physical Force Used Only To 'Correct' Schoolchild Is Not An Offence: Bombay High Court Acquits Teacher In Corporal Punishment Case

Case Title: Rekha @ Vidhila Faldessai v. State

Citation: 2023 LiveLaw (Bom) 73

In a corporal punishment case, the Bombay High Court held that use of some physical force by school teacher, with no mala fide intention, only to correct the child does not constitute an offence under Section 324 of the IPC or Section 2(m) of the Goa Children's Act, 2005.

Justice Bharat P. Deshpande of the Goa bench, while quashing a schoolteacher's conviction for hitting two children's hands with a stick, observed that teachers are the backbone of our education system, and it would be difficult to maintain discipline in school if they are constantly under fear of trivial allegations.

21. Green Flag For Mumbai-Ahmedabad Bullet Train Project As Bombay High Court Upholds Acquisition Of Godrej & Boyce's Plot At Vikhroli

Case Title: Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 78

The Bombay High Court green flagged the bullet train project and refused to set aside the acquisition of Godrej & Boyce Manufacturing Co. Ltd's plot at Vikhroli.

"There are no irregularities in the acquisition...Project is of paramount importance...Public interest would prevail over private interest," a division bench of Justices RD Dhanuka and MM Sathaye observed. The court has also refused to stay the project.

Godrej had challenged the award and compensation of Rs 264 crore by the deputy collector on September 15, 2022 for acquiring 39,252 sqm (9.69 acre) of company land for the Mumbai - Ahmedabad bullet train project. The company claimed the amount was a fraction of the initial offering of Rs. 572 crores.

22. Bombay High Court Dismisses PIL Against Vice President, Law Minister Over Remarks On Basic Structure Doctrine, Collegium System

Case Title: Bombay Lawyers Association v. Jagdeep Dhankar & others

Citation: 2023 LiveLaw (Bom) 79

The Bombay High Court dismissed a PIL against the Vice President Jagdeep Dhankhar and Law Minister Kiren Rijiju for their constant public criticism of the judiciary's 'collegium system' and remarks against the basic structure doctrine.

Petitioner - the Bombay Lawyers Association sought to restrain them from discharging their duties claiming that the two have disqualified themselves from holding constitutional posts of Vice President and Minister of the Union Cabinet through their conduct, having expressed lack of faith in the Constitution of India.

The petitioner has called the attack on the judiciary as a frontal attack on the constitution and narrated several instances.

“The credibility of the Hon'ble Supreme Court of India is sky high. It cannot be eroded or impinged by the statements of individuals. The Constitution of India is supreme and sacrosanct,” the division bench of ACJ SV Gangapurwala and Justice Sandeep Marne said.

23. Candidate Won't Incur Disqualification Under Maharashtra Village Panchayats Act If Child Born After Cut-Off Date Is No More: Bombay High Court

Case Title: Vaishali Chaburao Katore v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 81

The Bombay High Court held that a child who was born after the cut-off date but passed away before nomination, would not be counted to disqualify the parent from contesting panchayat elections under the Maharashtra Village Panchayat Act, 1959.

Justice Arun R. Pedneker of the Aurangabad Bench set aside the authorities' order disqualifying a woman on the ground that she had more than two children after the cut-off date.

24. SPA Which Gives Option To Resell Shares To Vendor, Not A 'Forward Contract': Bombay High Court

Case Title: Percept Finserve Pvt Ltd & Anr. v. Edelweiss Financial Services Ltd

Citation: 2023 LiveLaw (Bom) 83

The Bombay High Court ruled that a Share Purchase Agreement (SPA), which gives an option to the purchaser to require the seller/vendor to repurchase the shares on the occurrence of a contingency, does not constitute a 'forward contract' and thus, the same is enforceable.

The bench of Justices K. R. Shriram and Rajesh S. Patil, was dealing with an arbitral award, where the Arbitral Tribunal had ruled that the option contained in the SPA was unenforceable since it constituted a contract in derivatives which was not traded on a stock exchange, the same being illegal under Section 18A of the Securities Contracts (Regulation) Act, 1956 (SCRA).

Upholding the order of the Single Judge where it had set aside the arbitral award, the Division Bench held that merely because the contract contains a “put option” in respect of securities, the contract cannot be termed as a trade or contract in derivatives. Thus, the Court held that the option contemplated under the SPA was not prohibited in law.

25. Wife Has No Right To Obstruct Sale Of Estranged Husband's Home When He Is Willing To Provide Her Similar Rented Accommodation: Bombay High Court

Case Title: RMS v. MOP

Citation: 2023 LiveLaw (Bom) 84

A woman doesn't have the right to obstruct the sale of her estranged husband's home if he is willing to provide her a rented accommodation with similar facilities, the Bombay High Court held.

The court made the observation while refusing to interfere with an order of the Family Court permitting the husband to sell the flat for clearing an outstanding loan. The Family Court had also directed the wife to move out of the accommodation and choose a suitable two-bedroom rental flat, failing which she would be handed over Rs. 50,000 per month.

The court observed that such an order takes care of the rights of both parties and the wife can't be heard to say that she would obstruct sale merely because she is habituated to the flat.

26. Appellate Court Can Appoint Another Court Commissioner If One Appointed By Trial Court Did Not Follow Proper Procedure: Bombay High Court

Case Title: Yasin Gulab Shikalkar v. Maruti Nagnath Aware and Ors.

Citation: 2023 LiveLaw (Bom) 85

Observing that a plaintiff cannot be made to suffer if a Court Commissioner did not follow the procedure while making a report, the Bombay High Court held that the Appellate Court can appoint another Court Commissioner if the one appointed by the Trial Court failed to present a correct picture of the suit land and same will not attract res judicata

Justice Sandeep V. Marne set aside District Court's order refusing to appoint another Court Commissioner in a case where trial court had appointed one to measure the suit land. The trial court had discarded the Court Commissioner's report as he had not issued notice to adjacent landholders before taking measurements of the suit land. Court added that even the trial court could have appointed another Commissioner.

27. 'Judge Expected To Apply Mind, Pass Speaking Order': Bombay HC Directs Subordinate Courts To Desist From Using Rubber Stamps For Deciding Bail Pleas

Case Title: Ashokrao s/o Uttamrao Pawar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 86

Observing bail has to be granted or rejected by a speaking order, the Nagpur bench of Bombay High Court directed the subordinate Courts to desist from using rubber stamps to decide bail applications.

A bail order produced before a bench of Justice Vinay Joshi and Justice Valmiki Menezes reflected it had been "rendered on a rubber stamp with blank spaces" in which the Magistrate had filled in the bond amount without mentioning any other details.The court said that there is no apparent authorization for the use of such rubber stamps to enable a Magistrate to grant bail. Grant of bail is a matter of discretion to be exercised by the concerned Magistrate, who is expected to apply his mind after considering the material on record and is required to be granted or rejected by a speaking order.

The court directed the Registrar to circulate its judgement to all District and Sessions courts.

28. Challenge To Cooperative Society's Membership Can Only Be Raised Before Cooperative Court, Not State: Bombay High Court

Case Title: Sudam s/o. Ganpat Kothambire and Ors. v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 87

The Bombay High Court held that grant of membership of a cooperative society to any person can be challenged only by filing a dispute before the co-operative court under Section 91 of the Maharashtra Co-Operative Societies Act, 1960.

Justice Arun R. Pednekar of the Aurangabad bench observed that such a challenge does not lie under section 79A as State cannot pass any direction in public interest which contravenes Section 23 of the Act.

29. Vehicular Toll Is Tax And Not Mere Contractual Debt Between Collection Company And Civic Body: Bombay High Court

Case Title: MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation

Citation: 2023 LiveLaw (Bom) 92

Observing that vehicular toll is a tax and not merely contractual debt between the collection company and the civic body, the Bombay High Court dismissed plea by Mumbai based MEP Infrastructure Developers Ltd. (MEPIDL) challenging recovery proceedings for its failure to pay toll collected by it to the Municipal Corporation of Delhi (MCD).

A division bench of Justices G. S. Patel and S.G. Dige further held that once Tehsildar has directed a bank to freeze the accounts of a defaulter against whom recovery certificate is issued, the bank has no power to invite objections from the defaulter.

30. Defence Of Alibi Can Be Raised At The Stage Of Framing Charge, No Rule That It Can Be Considered Only During Defence Evidence: Bombay HC

Case Title: Anand s/o Shivaji Ghodale v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 96

The Bombay High Court held that the defence of alibi can be raised as early as possible at the stage of framing charge as there's no rule providing that such a defence can only be considered at the stage of defence evidence.

Justice SG Mehare of the Aurangabad bench set aside trial court summons issued under section 319 of the CrPC to a man for trial under the POCSO Act observing that the trial court should have considered his defence of alibi.

31. Eligibility Of Researcher For Any Post Determined By Acceptance Of Research Paper For Publication Rather Than Actual Publication: Bombay High Court

Case Title: Dr. Sunil s/o Nilkanth Washimkar v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 106

The Bombay High Court held that only the acceptance of a research paper for publication in a journal is relevant rather than actual publication to determine the author's eligibility for any post or qualification.

The division bench of Justice Sunil B. Shukre and Justice Vrushali V. Joshi observed that the worthiness of the paper for publication determines eligibility.

The court set aside MPSC's decision declaring an Associate Professor ineligible for the post of Professor of Cardiology because his fourth research paper was published after the due date. The court observed that the paper had been accepted for publication before the due date.

32. INS Vindhyagiri - MV Nordlake Collision | Liability Can Be Limited At Interim Stage Before Completion Of Trial: Bombay High Court

Case Title: Ms. M. V. Nordlake GmbH v. Union of India

Citation: 2023 LiveLaw (Bom) 112

Ruling that the liability of a vessel owner for an accident can be limited at the interim stage before the completion of the trial, the Bombay High Court limited the liability of German company M.V. Nordlake Gmbh for the 2011 MV Nordlake – INS Vindhyagiri collision in Mumbai.

“Once the suit is instituted, it is not imperative that the order to limit liability can only be after a full fledged trial. The Court is not precluded from passing a decree at an intermediate stage without the trial running its full course…there is no embargo either under the provisions of the Code (CPC) or Rules 1980 (Bombay High Court (Original Side) Rules) to entertain the application for limitation of the liability”, Justice N. J. Jamadar held while deciding a Notice of Motion for limitation of liability.

33. [Maharashtra Rent Control Act] Court Can Fix Interim Standard Rent Only In A Rent Recovery Suit: Bombay High Court

Case Title: M/s. Perfect Auto v. Santosh Narsingdasji Agrawal

Citation: 2023 LiveLaw (Bom) 116

The Bombay High Court held that a court can fix interim standard rent under the Maharashtra Rent Control Act, 1999 at any stage of a suit for recovery of rent but not in any other kind of suit.

Justice Anil S. Kilor of the Nagpur bench set aside trial court's order fixing interim rent of a shop premises in a suit for fixation of standard rent.

34. British National Jane Cox To Continue Law Practice In India After BCI Consents Before Bombay High Court, 17-Yr-Old Order Set Aside

Case Title: Jane Cox v. Bar Council of India

Citation: 2023 LiveLaw (Bom) 125

The Bombay High Court set aside a 17-year-old order passed by the Bar Council of India (BCI) and paved the way for Advocate Jane Cox, a British citizen, to continue her legal practice in India.

A division bench of Justices Gautam Patel and Neela Gokhale, set aside the 2005 order with BCI's consent but kept the question regarding a foreigner's right to practice expressly open.

"Both sides agree that reasons are not necessary for the following order. The Bar Council of India though Mr Shekhar Jagtap states that in the facts and circumstances of the present case the impugned order of the BCI dated February 20, 2005 may be set aside, and the issue of the petitioner's right to practice be concluded in the petitioner's favour. We make rules absolute regarding prayer A and B.

The question of law raised in the petition is expressly kept open with regard to persons other than the present petitioner," the court said.

35. [Maharashtra Prison Rules] Set Off & Remission Included For Calculating Period Of Incarceration To Determine Parole Eligibility: High Court

Case Title: Shoyab Mehtab Ali v. Divisional Commissioner and Anr.

Citation: 2023 LiveLaw (Bom) 126

The Bombay High Court held that the period of incarceration that prisoner has undergone has to be calculated including the period of set off and remission to determine eligibility for parole or furlough under the Maharashtra Prison (Parole and Furlough) Rules.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur while setting aside rejection of a prisoner's parole application held –

“Therefore, while applying Rule 4[2] of the Rules, one has to calculate the period by including the period of set off and remission earned by the petitioner. Therefore, as admittedly the petitioner has undergone the entire period awarded for the offence punishable under Section 397 of the Code, he is eligible for furlough leave.”

36. 'Newborn' Baby Includes 'Pre-Mature Baby': Bombay High Court Directs Insurer To Pay For Expenses Related To Infant's Care, Imposes ₹5 Lakh Cost

Case Title: Rita Kirit Joshi v. New India Assurance

Citation: 2023 LiveLaw (Bom) 132

In a significant order the Bombay High Court held that a 'newborn' baby would include a 'pre-mature baby' and the insurer would be liable to pay for all expenses related to the infant's care.

It rejected the insurance policy clause which stated that “expenses relating to illness or injury to the new-born” did not include “expenses relating to postnatal care, pre-term or premature care.” “It is distinction without a difference,” the bench said.

37. NI Act| Company's Authorized Signatory Not "Drawer" Of Cheque : Bombay High Court

Case Title: Lyka Labs Limited & Anr. v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 134

The Bombay High Court held that authorised signatory of a company who signs a cheque on its behalf is not the "drawer" of the cheque and hence such signatory is not liable to pay interim compensation under section 143A of the Negotiable Instruments Act, 1881 in a case for dishonour of cheque.

"The signatory of the cheque, authorized by the "Company", is not the drawer in terms of section 143A of the NI Act and cannot be directed to pay interim compensation under section 143A", the court held.

Justice Amit Borkar further held that persons who are not the drawers of the cheque are not required to make the deposit in terms of Section 148 of the Act while filing appeal against conviction under Section 138 of the NI Act.

38. Eviction Of Air India Employees Due To Privatisation Cannot Be Termed An Industrial Dispute: Bombay High Court

Case Title: All India Service Engineers Association v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 138

Holding that Air India employees were granted accommodation on leave and license and not as a matter of right, the Bombay High Court held that eviction of employees due to privatisation cannot be termed an Industrial dispute.

A division bench of Justice SV Gangapurwala and Justice Sandeep V Marne dismissed a batch of writ petitions filed by employee unions of Air India challenging the Central Government's refusal to refer the dispute to the industrial tribunal.

39. Bombay High Court Dismisses PIL Seeking Probe Into Uddhav Thackeray's Alleged Disproportionate Wealth

Case Title: Gouri Abhay Bhide and Anr v. Union of India and Anr.

Citation: 2023 LiveLaw (Bom) 140

The Bombay High Court dismissed a PIL seeking CBI and ED investigation into the alleged "disproportionate" wealth of Maharashtra's ex-CM Uddhav Thackeray, his wife and two sons.

"We hold this petition is an abuse of the process of the law," a division bench of Justices Dhiraj Thakur and Valmiki Menezes said imposing Rs. 25,000 cost on Dadar residents Gouri Bhide (38) and Abhay Bhide (78).

The bench found the petition to be "bereft of any evidence", much less evidence which would give a basis to come to a conclusion that a prima facie case was made out for the CBI or any other agency.

40. CM Eknath Shinde Has No Power To Interfere With Decision Of In-Charge Minister On Subject Matter Assigned: Bombay High Court

Case Title: Chandrapur District Central Co-operative Bank Ltd. and Anr. v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 147

The Bombay High Court held that the Chief Minister of Maharashtra does not have independent powers to interfere with the subject assigned to another Minister.

Justice Vinay Joshi and Justice Valmiki SA Menezes of the Nagpur bench quashed CM's order staying the recruitment process of the Chandrapur District Central Co-operative Bank observing that the subject fell under the authority of the Minister of Co-operation.

The court added that there must be express provision authorizing the CM to act on a matter assigned to a particular Ministry. Further, under the Maharashtra Government Rules of Business and Instructions the Minister is not subordinate to the Chief Minister regarding independent functioning of a department assigned to him, said the court.

41. 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.

42. 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.

43. 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 property observing –

“Encashing the cheque of the amount refunded by the Respondents (Government of India) is not compatible with the plea of the Petitioner (winning bidder) to proceed ahead with the alleged contract. Accepting the amount of earnest money of 25% deposited by the Petitioner from the Respondents would be a death knell for the Petitioner. Accepting the refund of the amount from the Respondents would demonstrate that if at all there is a contract, the parties have rescinded the same.”

44. Dispute Over Ownership Of Facebook Group Not A Trademark Dispute: Bombay High Court

Case Title: The Himalayan Club v. Kanwar B. Singh & Ors.

Citation: 2023 LiveLaw (Bom) 168

The Bombay High Court held that the dispute over ownership of a Facebook Group is not a trademark dispute and can be decided by the Civil Court.

Justice Nitin W Sambre set aside Civil Court's decision that it did not have jurisdiction over the dispute of ownership of the Facebook Group called The Himalayan Club.

The court said that the Facebook Group is a website and a social media platform for members to exchange ideas etc. and hence it is not a trademark or a copyright.

45. Custom Authorities Don't Have Any Power To Seal Immovable Property: Bombay High Court

Case Title: Kalpesh Ghevarchand Jain v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 174

The Bombay High Court held that the Custom authorities do not have any power to seal the premises of a person allegedly involved in smuggling goods.

A division bench of Justice Sunil B Shukre and Justice Kamal Khata in a writ petition held, “…we find that there is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property.”

46. Transgender Person Who Underwent Surgery To Change Gender To Female Can File Complaint Under Domestic Violence Act: Bombay High Court

Case Title: Vithal Manik Khatri v. Sagar Sanjay Kamble @ Sakshi Vithal Khatri and Anr.

Citation: 2023 LiveLaw (Bom) 175

The Bombay High Court held that a transgender woman who has undergone sex re-assignment surgery can be an “aggrieved person” under the Domestic Violence Act and has the right to seek interim maintenance in a domestic violence case.

Justice Amit Borkar dismissed a man's petition challenging maintenance awarded to his wife, a trans-woman, observing that the term 'aggrieved person' under section 2(a) of the Protection of Women from Domestic Violence Act, 2005 has to be given a broad interpretation as the purpose of the Act is to protect women from domestic violence.

47. 'Democratic Right Of Citizens To Protest & Persuade': Bombay HC Quashes FIR Against Green Activist Who Sent Messages To Metro Director To Save Aarey Forest

Case Title: Avijit Michael v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 184

In a significant judgement on the use of technology to protest, the Bombay High Court rapped the Mumbai police for booking a green activist alleging harassment over messages sent to IAS officer Ashwini Bhide in 2018 against felling of trees at Aarey Colony for the Metro III car shed.

A division bench of Justices Sunil Shukre and MM Sathaye quashed the FIR registered at the Bandra-Kurla Complex police station against Avijit Michael, a resident of Bangalore and observed that there was nothing “offensive” in the messages and the accused was only trying to assert his democratic rights.

48. Bombay High Court Refuses To Interfere With RBI Circular Permitting Only One Active Current Account If Total Credit Facilities Availed Exceed ₹50 Crore

Case Title: VJ Jindal Cocoa Pvt Lt v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 186

The Bombay High Court has upheld HDFC Bank's email that led to the freezing of current accounts held by cocoa manufacturer VJ Jindal Cocoa in various banks observing that since its “exposure” was over Rs. 50 crore it wasn't permitted multiple active current accounts.

'Exposure' in the present context means the total credit facilities availed by a borrower.

A division bench of Justices Gautam Patel and Neela Gokhale dismissed VJ Jindal's petition to undo HDFC's action on the ground that it was exempted from the relevant RBI circular since its current accounts with other banks pre-dated the HDFC account.

49. Selection Committee Bound To Reconsider Employee For Promotion Based On Upgraded Performance Grade: Bombay High Court

Case Title: Ashok Ratnapal Narwade v. Maharashtra State Electricity Distribution Co. Ltd.

Citation: 2023 LiveLaw (Bom) 188

The Bombay High Court held that when the grade of an employee is upgraded in his performance report, the selection committee has to reconsider him for promotion taking into account his upgraded grade.

A division bench of acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne allowed an employee's writ petition seeking promotion once his performance grade was upgraded.

The selection committee had reconsidered his case for promotion after upgradation of his grade, but still considered his non-upgraded grade and rejected him.

50. Single Working Woman Can Adopt Child Under Juvenile Justice Act: Bombay High Court

Case Title: Shabnamjahan & Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 192

The Bombay High Court has set aside an order disallowing a woman from adopting her sister's child on the ground that she was a single working woman and wouldn't be able to give personal attention to the child. The judge's views displayed a medieval conservative mindset on family, the High Court said.

Justice Gauri Godse observed that a divorcee or a single parent was eligible to adopt as per the Juvenile Justice (Care and Protection of Children) Act, 2015 and the district court's job was merely to ascertain, if all necessary criteria were fulfilled.