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Bombay High Court Half Yearly...

Bombay High Court Half Yearly Digest: January To June, 2024 [Citations 1-319]

Amisha Shrivastava

10 Aug 2024 5:00 PM IST

Reports/Judgments

January

Former IT Analyst Of TCS With Supervisory Responsibilities Not Workman: Bombay High Court

Case Title: Rohit Dembiwal v. Tata Consultancy Services Ltd. & Ors

Citation: 2024 LiveLaw (Bom) 1

The Bombay High Court dismissed a writ petition filed by a former IT analyst of Tata Consultancy Services Ltd (TCS) observing that the petitioner was not a 'workman' under the Industrial Disputes Act.

In the judgment, Justice Milind N. Jadhav of the Bombay High Court upheld the Labour Court's order which held it did not have the jurisdiction to try the case since the petitioner Rohit Dembiwal was not a workman. The petitioner had challenged his alleged wrongful dismissal by the company in 2011.

The court held that the petitioner was involved in managerial, supervisory or administrative functions like approving leave/timesheets of team members, handling their reimbursements, reviewing their appraisals, taking business decisions etc., indicating he is not a mere 'workman'.

Bombay High Court Grants Bail To German Bakery Blast Convict Mirza Himayat Baig In 2010 Nashik Terror Case

Case Title: Mirza Himayat Baig v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 2

The Bombay High Court granted bail to Mirza Himayat Baig arrested in 2010 for allegedly being a Lashkar – E - Taiba operative and participating in a terror conspiracy in Nashik.

Baig is already serving a life sentence in the German Bakery Blast Case.

A division bench headed by Justice Revati Mohite Dere granted bail to Baig on furnishing a personal bond of Rs 1 lakh with two sureties of the same amount.

Suspended Employee Not Required To Mark Daily Attendance For Subsistence Allowance: Bombay High Court

Case Title: M/s. Hindustan Level Employees Union v. M/s. Hindustan Unilever Limited

Citation: 2024 LiveLaw (Bom) 3

Bombay High Court held that an employee is entitled to receive subsistence allowance during suspension as per Section 10A of the Industrial Employment (Standing Orders) Act, 1946, without any condition imposed by the employer requiring the employee to mark daily attendance at the workplace.

Subsistence allowance is given to an employee to maintain himself and his family during suspension in the absence of a salary.

The judgment was delivered by Justice Milind N. Jadhav in a writ petition filed by Hindustan Level Employees Union challenging an award passed by the Labour Court in Daman rejecting the Union's claim for payment of subsistence allowance to its member Natubhai Patel.

Muslim Women (Protection of Rights on Divorce) Act | Divorced Woman Entitled To Maintenance Regardless Of Remarriage: Bombay High Court

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 4

The Bombay High Court held that a Muslim woman is entitled to maintenance from her first husband after divorce under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPA) despite remarrying.

Justice Rajesh Patil observed that there is no condition under section 3(1)(a) of MWPA disentitling a Muslim woman from getting maintenance after remarriage.

“The protection referred to in the MWPA is unconditional. Nowhere does the said Act intend to limit the protection that is due to the former-wife on the grounds of the remarriage of the former-wife. The essence of the Act is that a divorced woman is entitled to a reasonable and fair provision and maintenance regardless of her remarriage. The fact of divorce between the husband and wife is in itself sufficient for the wife to claim maintenance under section 3 (1) (a)”, the court held.

Bombay High Court Denies Anticipatory Bail To Advocate Accused Of Cheating Client By Forging Bail Order

Case Title: Hiral Chandrakant Jadhav v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 5

The Bombay High Court refused to grant anticipatory bail to advocate Hiral Chandrakant Jadhav accused of cheating a client by presenting a forged sessions court bail order for her husband in a murder case.

Justice Sarang V Kotwal observed that it is a serious offense extending beyond the immediate victim, affecting the public's faith in the legal system and thus, no leniency could be granted to the accused.

Husband Can't Deny Maintenance To Wife Just Because She Is Staying In Matrimonial Home : Bombay High Court

Case Title: XXX v. XXXX

Citation: 2024 LiveLaw (Bom) 6

The Bombay High Court held that a woman residing in the matrimonial home would also be entitled to maintenance to meet her basic expenses. The court dismissed a petition filed by a husband challenging the interim maintenance granted by a Family Court to his estranged wife and minor son.

The Family Court had directed the husband to pay Rs. 15,000 per month to his wife and Rs. 10,000 for their 10-year-old son.

Justice Neela Gokhale observed, “The mere fact that she is residing in the matrimonial home is not a pretext to disentitle her to a reasonable amount of maintenance. She still needs some amount towards food, medicine, clothes and educational expenses for the child.”

Domestic Violence Complaint Maintainable Against Daughter-In-Law But Not Maintainable Against Her Father, Brother: Bombay High Court

Case Title: Zeba Mohasin Pathan @ Zeba Easak Pathan v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 7

The Bombay High Court held that a complaint filed by a mother-in-law (MIL) against her daughter-in-law (DIL) under the Protection of Women from Domestic Violence Act, 2005 (DV Act) is maintainable. However, it quashed the complaint against the daughter-in-law's father and brother.

“While the object and purpose of the DV Act is to protect a woman from domestic violence, it does not confer a right on a mother-in-law to prosecute the father and brother of her daughter-in-law under the DV Act,” the judge observed.

Justice Dr. Neela Gokhale partly allowed a petition filed by the DIL, her father and brother challenging a DV complaint filed by the woman's MIL before the Judicial Magistrate First Class, Koregaon, Satara.

Bombay High Court Allows Cross Maidan To Be Used For Kala Ghoda Arts Festival From January 20-28, With Conditions

Case Title: Organization for Verdant Ambience and Land (OVAL) Trust v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 8

The Bombay High Court granted permission to the Kala Ghoda Association (KGA) with certain riders to hold its annual arts and culture events at Cross Maidan in South Mumbai from January 20 – 28, 2024 as part of the Kala Ghoda Arts Festival.

A division bench of Justices Gautam S Patel and Kamal R Khata further dispensed with the necessity for the association to apply to the High Court every year, so long as they comply with the necessary conditions.

Among other conditions, the court said the permission is subject to an undertaking similar to the one it had given in 2018.

S.353 CrPC | Bombay High Court Permits Accused With 83% Disability Residing In Haryana To Attend Pronouncement of Judgment Via VC

Case Title: Ashwini Kumar Sharma v. State Of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 9

The Bombay High Court allowed a man with 83% physical disability accused in a cheating and corruption case and residing in Panipat, Haryana, to attend the pronouncement of judgment in his trial via video conferencing.

Justice MS Karnik held that the same direction passed by the High Court in November 2023 while exempting the man from physical presence in Bombay City Civil and Sessions Court for recording of evidence will apply for the pronouncement of judgment.

HC In Revisional Jurisdiction Can Suspend Sentence Even If Convict Has Not Surrendered After Failed Appeal: Bombay High Court

Case Title: Ikba s/o Chandulal Shaikh and Anr. v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 10

The Aurangabad Bench of Bombay High Court held that a High Court, while entertaining a criminal revision application, can suspend the sentence of convicts even if they have not surrendered.

A division bench of Justice Mangesh S Patil and Justice SG Chapalgaonkar observed that when appeal against conviction has failed but the convict has not surrendered, the High Court in its revisional jurisdiction has the discretion to either suspend the sentence or direct execution of sentence.

If the accused is seeking to misuse the process, the High Court can direct his arrest, but it would be independent of the issue regarding maintainability of the revision, the court added.

State Can't Evade Responsibility: Bombay HC Orders Compensation To Family Who Moved Court 37 Yrs After Its Land Was Used For Electricity Substation

Case Title: Rajeev Kumar Damodarprasad Bhadani & Ors. v. Executive Engineer

Citation: 2024 LiveLaw (Bom) 11

The State cannot cite delay in approaching the court to absolve itself of its responsibility towards those whose private property has been “expropriated” or taken for public use without compensation, the Bombay High Court held.

It ruled in favour of urban landowners who approached the court in 2021, nearly four decades after an electricity sub-station was built on their land.

A division bench comprising Justices BP Colabawalla and Somasekhar Sundaresan ordered the Collector of Thane to compute compensation payable to Damodarprasad Bhadani's family under the Land Acquisition Act 2013 for their 6685 sq meters of land utilized by the electricity board in 1984.

Complainant Couldn't Have Filed Complaint After Retiring From Firm: Bombay High Court Stays Demolition Notice Of Sai Resort In Relief To Close Aide Of Shiv Sena (UBT) MLC

Case Title: Sadanand Gangaram Kadam v. Additional Commissioner, Konkan Bhavan and Ors.

Citation: 2024 LiveLaw (Bom) 12

Observing that the facts of the case were prima facie “shocking,” the Bombay High Court stayed the notice to demolish 'Sai Resort' in Raigad district owned by Sadanand Kadam, a close aide of Shiv Sena (UBT) faction member and former Maharashtra cabinet minister – MLC Anil Parab.

Petitioner Sadanand Gangaram Kadam assailed a demolition notice dated December 6, 2023 issued against him. Kadam claimed he had developed the resort after obtaining non-agriculture (NA) permission on August 3, 2021 from the Sub Divisional Officer.

The dispute began with the purchase of the land at Khed by a partnership firm M/s Sai Star Distributors, of which the petitioner and Vijay Bhosale were partners, along with three others. By a consent award dated May 6, 2017, disputes between the partners were settled and Bhosale retired from the firm, with the Khed land entitlement coming to the petitioner.

The High Court noted that the private complaint by Vijay Bhosale regarding the Khed land was not prima facie maintainable at all, after he had retired from the firm.

Appellate Authority Must Not Keep Cases Pending Indefinitely, Can't Cause Situation Of 'Operation Successful, Patient Dead': Bombay High Court

Case Title: M/s. Apna Chemist v. Assistant Commissioner (Zone-3) & Anr.

Citation: 2024 LiveLaw (Bom) 13

The Bombay High Court admonished the State government, the appellate authority against drugs licence suspension orders, stating that a decision must not be kept pending for so long that it becomes a case of 'operation successful, patient dead'.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla observed that the inaction in deciding the appeals and stay applications would violate the right to carry out trade of the appellants facing suspension of their licence.

The court observed that the appellate authority, responsible for adjudicating statutory appeals, must be alive to the consequences that the order under appeal could have on the appellant. The court emphasized that remedy provided in law must be effective and observed that the inaction of the appellate authority could impact the rights guaranteed under Article 19(1)(g) of the Constitution, read with Articles 14, 21, and 300A.

Reference Under Section 25-O ID Act Valid If Made Within One Year Even If It Is Actually Heard And Disposed After The Expiry Of One Year: Bombay HC

Case Title: General Motors Employees Union v. General Motors India Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 14

The Bombay High Court upheld Industrial Tribunal's order allowing automotive manufacturing company General Motors to close its plant in Talegaon, Maharashtra, after noting accumulated loss of Rs. 9656.87 Crores till 2022.

Justice Milind Jadhav dismissed two writ petitions by General Motors Employees Union challenging Industrial Court's orders allowing General Motors India Private Limited to close down its Talegaon MIDC plant under Section 25-O of the Industrial Disputes Act, 1947.

The court clarified that the Apex court decision in Vazir Glass Works Ltd. v. Maharashtra General Kamgar Union (1996), cited by the employee union, is limited to cases where the Review and consequential Reference are made after one year from the date of the rejection of Closure Application. If the Reference is made within one year, it would be valid even if it is actually heard and disposed, after the expiry of one year, the court held. It cited various subsequent decisions establishing that the time frames mentioned in Sections 25-O(6) and 25-O(4) are 'directory' and 'not mandatory.'

Relationship Seems Out Of Attraction, Not Assault Out Of Lust: Bombay HC Grants Bail To Man Accused Of Kidnapping, Raping 13-Yr-Old Girl

Case Title: Nitin Damodar Dhaberao v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 15

The Bombay High Court granted bail to a man accused of raping a 13-year-old child observing that they had a love affair, and the alleged sexual relationship appears to be out of attraction and not lust.

Justice Urmila Joshi-Phalke of the Nagpur Bench observed that the girl stated that she voluntarily left her house and stayed with the accused who is also of a 'tender' age of 26 years.

“Thus it is apparent that, out of the love affair, she joined the company of the present applicant. The applicant is also of a tender age of 26 years and out of love affair they come together. It seems that, the alleged incident of sexual relationship is out of the attraction between the two young persons and it is not the case that applicant has subjected the victim for a sexual assault out of lust”, the court observed.

Can't Condone Everything By Taking Money: Bombay HC Criticizes BMC For Defending Stacked Parking Allegedly Violating Fire Safety Norms

Case Title: Rahul Jain v. Municipal Corporation of Greater Mumbai & Ors

Citation: 2024 LiveLaw (Bom) 16

The Bombay High Court took strong exception against the civic body's responses to a potential fire hazard owing to stacked parking, blocking the access to a building in Borivali.

The court pointed out that merely because the builder had paid a premium to the civic body for additional construction, fire safety could not be abandoned.

"The suggestion that every violation, transgression or deviation from well established safety norms can be condoned in exercise of discretionary powers simply by taking money is so utterly reprehensive, we dare say that no court would countenance it.”

Defect Notice Caused No Prejudice Since Last 30 Years, Assessee Clearly Understood Purport Of Notice: Bombay High Court

Case Title: Veena Estate Pvt. Ltd. v. Commissioner of Income-Tax

Citation: 2024 LiveLaw (Bom) 17

The Bombay High Court held that even assuming that there was a defect in the notice, it had caused no prejudice to the assessee, and the assessee “clearly understood” what the purport and import of the notice were under Section 274 read with Section 271 of the Income-tax Act, 1961. The principles of natural justice cannot be read in abstract form.

The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that the assessee at no earlier point in time had raised a plea that, on account of a defect in the notice, the assessee was put to any prejudice. The Court observed that a violation will not result in nullifying the orders passed by statutory authorities. If the case of the assessee is that the assessee was prejudiced and principles of natural justice were violated on account of not being able to submit an effective reply, it would be a different matter.

Bombay High Court Allows Stamp Duty Refund To Flat Purchaser Beyond Time Limit, Says Delay Caused By Developer's Default

Case Title: Satish Buba Shetty v. Inspector General of Registration and Collector of Stamps and Ors.

Citation: 2024 LiveLaw (Bom) 18

The Bombay High Court allowed refund of stamp duty for a flat purchase agreement to a man in his late 60s despite cancellation of the agreement beyond the limit of 5 years under the Maharashtra Stamp Act, as the developer neither developed the building nor cancelled the agreement in time.

Justice NJ Jamadar observed that the petitioner had diligently pursued remedies before RERA and the delay in executing the Cancellation Deed was not attributable to him. Impossibility of performance of a statutory condition is a ground to relieve a person from penalty, he said.

“High Court in exercise of the extraordinary writ jurisdiction cannot be denuded of the power to delve into the question as to whether the non-compliance of the stipulation as to time was brought about by factors which were beyond the control of the affected party and to insist performance would have amounted to compelling such party to do impossible and, thus, relieve such party of the hardship in deserving cases, where injustice is writ large. In the backdrop of the circumstances which are adverted to above, refusal to grant refund would be wholly unjust and unconscionable”, the court held.

Gratuity Calculated On Last Drawn Salary At Time Of Final Resignation If Employee Transferred Among Institutes Of Same Management: Bombay HC

Case Title: M/s. Terna Polytechnic v. Ravi Bhadrappa Randale

Citation: 2024 LiveLaw (Bom) 19

The Bombay High Court held that when an employee is transferred from one institute to another of the same management with continuity in service, gratuity will be calculated on the basis of last drawn salary at the time of final cessation of service.

Justice Sandeep V Marne held that there would be no bifurcation of the gratuity amount based on last drawn salary in individual spells of service in the distinct institutes.

The court dismissed four writ petitions filed by employers challenging the entitlement to gratuity of an employee who was transferred Terna Polytechnic, Navi Mumbai to Terna Engineering College, Navi Mumbai, and finally resigned from the latter.

“Once it is held that the two spells of services in Terna Polytechnic and Terna Engineering College are interconnected, cessation of service for the purpose of payment of gratuity under Section 4 of the Gratuity Act would occur on 21 July 2011 when Respondent resigned from the services of Terna Engineering College…There is nothing on record placed to prove that there was termination/cessation of services with Terna Polytechnic on account of resignation from services. Thus Respondent is entitled to gratuity on the basis of last wages drawn as on 21 July 2011 from Terna Engineering College in respect of his entire service from 17 September 1992 to 21 July 2011”, the court held.

Merely Commenting About Lack Of Woman's Cooking Skills Not 'Cruelty' U/S 498A IPC: Bombay High Court

Case Title: Sandesh Madhukar Salunkhe v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 20

The Bombay High Court ruled that commenting that a woman doesn't know how to cook is not cruelty and would not constitute an offence under section 498A of the Indian Penal Code.

“In the instant case, the only allegation levelled against these Petitioners is that they had commented that Respondent No.2 does not know how to cook. Such comment does not constitute 'cruelty' within the meaning of the Explanation to Section 498-A of the Indian Penal Code.”

A division bench comprising Justice Anuja Prabhudessai and Justice N.R. Borkar quashed an FIR registered under section 498A against two brothers-in-law for allegedly commenting that the complainant did not know how to cook.

The court observed that petty quarrels do not constitute 'cruelty' within the meaning of section 498A. To constitute an offence under this section, there must be prima facie material to prove willful conduct likely to drive the woman to commit suicide or cause grave injury, and that she was harassed to satisfy unlawful dowry demands.

Banks/NBFCs Not Obliged To Initiate Restructuring Process Before Classifying MSME Account As NPA Sans Application From MSME: Bombay High Court

Case Title: M/s. A. Navinchandra Steels Pvt. Ltd v. Union of India and Ors.

Citation: 2024 LiveLaw (Bom) 21

The Bombay High Court held that banks and non-banking financial companies (NBFCs) are not obligated to initiate restructuring process before classifying accounts of Micro, Small, and Medium Enterprises as Non-Performing Assets (NPA) in the absence of any application from the MSMEs seeking restructuring.

A division bench of Justice BP Collabawalla and Justice MM Sathaye held that notification dated May 29, 2015, under Section 9 of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) allowing for restructuring only applies when MSMEs approach the banks/NBFCs.

The court dismissed a group of writ petitions challenging the classification of the accounts of petitioner MSMEs, who have taken financial assistance from banks and NBFCs, as NPAs under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The challenge was on the ground that the respondent banks/NBFCs did not adhere to the procedure for restructuring outlined in the notification before classifying the MSMEs as NPAs.

Aviation Safety Norms Can't Be Relaxed For Public Authority: Bombay High Court Refuses Height Relaxation For MHADA High Rise Near Mumbai Airport

Case Title: Maharashtra Housing And Area Development Authority v. Airport Authority of India & Anr.

Citation: 2024 LiveLaw (Bom) 22

The Bombay High Court rejected Maharashtra Housing And Area Development Authority's (MHADA) writ petition seeking relaxation of height restrictions for a 40-floor building near the Chhatrapati Shivaji Maharaj International Airport (CSMIA) in Mumbai.

A division bench of Justice GS Patel and Justice Kamal Khata observed that aviation safety has nothing to do with the identity of the developer, and no relaxation of civil aviation safety norms can be granted merely because the project is proposed by a public authority.

Bombay High Court Dismisses 'Unsavory' PIL Seeking To Reduce MLAs' Salaries And Perks

Case Title: Forum For Fast Justice and Anr. v. Government of Maharashtra

Citation: 2024 LiveLaw (Bom) 23

The Bombay High Court dismissed a Public Interest Litigation seeking reduction in perks and salaries of MLAs in Maharashtra, citing a previous judgment wherein it was held that this is a policy decision outside the domain of the court.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor criticized the petition, observing that it was full of generalized and unsavoury statements against all MLAs.

Every Student Has Right To Seek Redressal From Court: Bombay HC Sets Aside Cancellation Of Semester For Two BITS Goa Students Accused Of Theft

Case Title: Vuribindi Mokshith Reddy & Anr v. BITS

Citation: 2024 LiveLaw (Bom) 24

The Bombay High Court set aside the punishment of cancellation of semester imposed on two students of Birla Institute of Technology and Science (BITS), Goa campus, for their involvement in the theft of items from stalls during a conference at the institute.

A division bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice MS Sonak instead directed the students to do two months of community service at an old age home in Goa.

The court held that the punishment given by the institute was disproportionate and against the University Grants Commission (UGC) guidelines, which emphasize reform over punitive action for student misconduct.

“Every student has the right to seek redressal from the Court of law, and the fact that students might take recourse to Courts of law cannot be a valid consideration not to revisit the penalty imposed by adhering to the UGC guidelines, which emphasises the reformative element,” the court emphasized.

Vehicle Being Collateral Not Ground To Shift Liability Of Paying Motor Accident Compensation On The Bank: Bombay High Court

Case Title: Shrikant Annappa Shinde and Anr. v. Khiraling Basavannappa Shingshetty

Citation: 2024 LiveLaw (Bom) 25

The Bombay High Court held that a vehicle being hypothecated to a bank does not make the bank liable for procuring vehicle insurance or paying accident compensation.

Justice Shivkumar Dige dismissed an appeal against order directing vehicle owner to pay compensation to kin of deceased in a motor accident case observing –

“Mere vehicle was hypothecated to the bank, cannot be a ground to shift liability of paying compensation on the said bank. It was obligatory on the owner of vehicle to take insurance policy of the vehicle. The accident caused due to negligence of the Appellant. Hence bank cannot be hold liable to pay the compensation mere hypothecation with it.”

Deterrence Required To Curb Such Social Evil: Bombay HC Sentences Man To 10 Yrs RI For Taking Minor To Red Light Area To Induce Her Into Prostitution

Case Title: State of Maharashtra v. Vijay Bhika Dive

Citation: 2024 LiveLaw (Bom) 26

The Bombay High Court convicted and sentenced a man to ten years of rigorous imprisonment for bringing a 14-year-old girl to a red-light area in Nashik with the intention of inducing her into the business of prostitution.

Justice PK Chavan observed that the cases of inducing minors for the purpose of prostitution are on the rise, and the convict, one Vijay Bhika Dive, does not deserve sympathy.

“The offences committed by the respondent – accused are indeed serious and have it's impact on the society…It appears that the victim had reposed trust upon the respondent – accused since she used to call him as Mama. Of late, there is a rise in the cases under The Immoral Traffic (Prevention) Act, 1956…There respondent – accused herein had indeed committed the aforesaid offences and, therefore, he does not deserve sympathy. In order to curb such social evil, some deterrence is required”, the court observed.

The court allowed State's appeal challenging the acquittal of the accused by the sessions court and convicted him under Sections 363 (kidnapping), 366A (procuration of minor girl) of the IPC, and Section 5 (procuring, including or taking person for prostitution) of The Immoral Traffic (Prevention) Act, 1956.

Bombay High Court Holds Land Acquisition Of 7 Hectares For Mumbai's Atal Setu Project Lapsed, Orders Compensation Under New Act

Case Title: Sandesh Vitthal Thakur & Ors. v. Deputy Collector (Land Acquisition) Raigad & Ors.

Citation: 2024 LiveLaw (Bom) 27

Days after the Prime Minister Narendra Modi inaugurated the Mumbai Trans Harbour Link (MTHL), the longest sea-bridge in India, the Bombay High Court declared that the land acquisition proceedings for a part of the project had lapsed.

While this would mean possession of the 7.13 hectares land should revert back to its original owner, in the present case, the owners agreed to accept compensation recalculated under the new Land Acquisition Act 2013.

“Once this is the statement made by Mr. Thakur, we hold that even though we have opined that the acquisition has lapsed, possession of the acquired lands shall not revert to the Petitioners, and they will only be entitled to compensation for their lands, and which shall be determined by the State by passing a fresh Award/s qua the Petitioners after following the procedure and the provisions as laid down under the 2013 Act.”

Bombay High Court Grants Bail To Transgender Persons Accused Of Harassing Temple Devotee, Criticizes Judge For Stereotypical Comments

Case Title: Aoudumbar Anil Sagar & Ors v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 28

Observing that “stereotypical and generalising” observations on the behaviour of transgender persons was “uncalled for,” the Bombay High Court granted bail to four transgender persons accused of harassing and assaulting a devotee at the Vitthal-Rukmini Temple in Pandharpur last month.

Justice Madhav J Jamdar noted that the observations were not even required for adjudication of the bail application.

“Transgenders are citizens of this country. Article 21 of the Constitution of India protects the right to life and personal liberty of all citizens. The right to life includes right to live with dignity. Therefore, the observations which are recorded in Paragraph Nos.19 to 21 of the said impugned Order should not have been recorded and are not required or material for consideration of a Bail Application.”

The allegations included demanding money, assault and forcible disrobing owing to which the transgender persons were booked under sections 353, 332, 294, 143, 147, 149 of the IPC and section 135 of the Maharashtra Police Act.

Not Fair To Inform Student Of His Ineligibility At Fag End Of Course, Wastes Time And Money: Bombay High Court To Mumbai University

Case Title: Rohan Ravindra Thatte v. University of Mumbai and Ors.

Citation: 2024 LiveLaw (Bom) 29

The Bombay High Court quashed Mumbai University's decision to declare a student as ineligible for the 3-year LL.B. course after he had already completed two out of six semesters.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain emphasized that the students must be timely informed of their eligibility status, to avoid students investing time, money, and energy in a course only to be informed of ineligibility at a later stage.

'National Level Threat': Bombay HC Passes Ex-Parte Order Against “Fake” PAN Card Websites Operating As Agents Of Govt Owned UTI Infra Tech

Case Title: UTI Infrastructure Technology and Services Ltd. v. Extra Tech World and Ors.

Citation: 2024 LiveLaw (Bom) 30

The Bombay High Court passed an ex-parte interim injunction against known and unknown entities allegedly operating fake websites that purport to provide PAN card services on behalf of government owned UTI Infrastructure Technology and Services Limited (UTIITSL).

The court noted the "national importance" of PAN services and said any potential misuse of the authorization would be "highly detrimental" to UTIITSL and the national interest. It accepted UTIITSL's contention that unknown entities were infringing its copyright in the PAN card label and passing off its trademarks by masquerading as authorized agents.

“On consideration of the necessary information provided in the Interim Application, the plaintiff/applicant deserves an ad-interim ex-parte order even without service, as it is impossible to track all the defendants and effect service upon them, and with the fake websites being continued to be active, it would cause irreparable damage and severe compromise of valuable confidential data of the plaintiff and also pose a threat at a national level,” the court observed.

The order was passed by Justice Bharati Dangre on an interim application filed by UTIITSL in a copyright infringement and passing off suit against four identified defendants.

Change Of Opinion Does Not Constitute Justification To Believe Income Chargeable To Tax Has Escaped Assessment: Bombay High Court

Case Title: Geopreneur Realty Private Limited v. UoI

Citation: 2024 LiveLaw (Bom) 31

The Bombay High Court held that a change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. It is not necessary that an assessment order contain references and/or discussions to disclose its satisfaction with respect to the query raised. The only requirement is that the assessing officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act during the original assessment proceedings

Former MLA Sunil Kedar Himself Lodged FIR, Trial Court Observations Contrary To Evidence: Bombay HC While Suspending Sentence In NDCC Bank Fraud Case

Case Title: Sunil s/o late Chhatrapal Kedar v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 32

The Bombay High Court observed that the trial court, while convicting former Congress MLA Sunil Kedar, made observations contrary to presented evidence and ignored that Kedar himself lodged the FIR.

Justice Urmila Joshi-Phalke of the Nagpur bench suspended the sentence of Kedar, convicted in a bank scam case of over Rs. 153 Crores, stating that Kedar has raised arguable points in his appeal against conviction.

“the observation of the trial court, that no step are taken to take action, is also contrary to the evidence as the applicant (Sunil Kedar) has lodged the First Information Report prior to registration of the crime. The specific admission by the investigating officer suggesting no evidence came before him showing any transactions between the applicant and HTL indicates that the observation of the trial court showing his involvement in the conspiracy is contrary to the evidence”, the court observed.

The trial court concluded that there was a conspiracy between Kedar and officers of HTL. However, the High Court pointed out that this is contrary to the investigating officer's admission that Kedar neither invested the amount for his personal gain, nor is he anyway concerned with the transfer of that amount.

Bombay High Court Rejects PIL Challenging Maharashtra Govt's Declaration Of Public Holiday On Ram Mandir Consecration Day

Case Title: Shivangi Agarwal & Ors. v. Union of India & Ors.

Citation: 2024 LiveLaw (Bom) 33

The Bombay High Court dismissed a public interest litigation (PIL) filed by four law students opposing Maharashtra government's notification that designates January 22, 2024, as a public holiday to mark the consecration of the Ram Mandir in Ayodhya.

A special bench of Justice GS Kulkarni and Justice Neela Gokhale observed that in a country of diverse religions, the impugned decision of the State in fact fosters the principle of secularism. Referring to a catena of precedents on the subject of public holidays, the bench said,

"A consistent view has been taken by the Courts that the declaration of holidays is a matter of executive policy including those which are declared considering the requirements of the different religions. Once these are the considerations on broader public interest, such decisions cannot be in any manner labelled as arbitrary decisions. Moreover such decision is taken by the executive in fostering the sentiments as enshrined in the Constitution and in recognition of the secular principles when a holiday is being declared on any religious occasion."

The bench relied on a decision of the Kerala High Court whereby a petition challenging the concession granted by the State to allow students to cover during summer holidays for leaves taken during Ramzaan, was dismissed. It was held that different religions are followed in the State and the concession does not impede the spirit of Article 25 and 26 of the Constitution.

High Court noted that even the Supreme Court has observed that declaration of public holidays is within the realm of executive policy.

High Court Declines To Quash Case Against Bandra Resident For Unauthorisedly Felling Tamarind Tree Leading To Death Of Birds, Destruction Of Nests

Case Title: Amit Satish Dhutia v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 34

The Bombay High Court refused to quash a case registered against a Bandra resident for allegedly ordering the felling of a Tamarind tree without prior permission, resulting in the death of several birds and the destruction of their eggs.

Justices AS Gadkari and Shyam Chandak dismissed the criminal application filed by Amit Dhutia observing that prima facie a case was made out against Dhutia.

The case was initiated on a complaint filed against Abhishek Soparkar Dhutia who was booked under Sections 428 and 429 of the IPC, along with Sections 9 and 51 of The Wildlife Protection Act, 1972, and Sections 8 and 21 of Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 registered with Khar Police Station, Mumbai.

It was alleged he had affected the illegal chopping of a Tamarind tree located inside the compound of Petit School near the applicant's residential society building (Nector CHSL). It was alleged that such felling caused injury to birds and destruction of their nests.

Bombay High Court Upholds Constitutional Validity Of Goa Cess Act

Case Title: Sesa Sterlite Ltd. v. State of Goa

Citation: 2024 LiveLaw (Bom) 35

The Bombay High Court upheld the Goa Rural Improvement and Welfare Cess Act, 2000 (Goa Cess Act). The Act imposes cess on carriers transporting scheduled materials including coal, coke, sand, debris, garbage, packaged water, mineral ore etc. in Goa.

The court accepted the state's argument that materials listed in the Act's schedule cause pollution and emphasized the state's responsibility to balance economic interests and development with the preservation of natural resources and environmental protection. It held that the state had legislative power to enact laws addressing adverse effects on health caused by human activities.

Govt Money At Stake: Bombay High Court Denies Anticipatory Bail To Two Accused Of Cheating In Safari Bookings At Tadoba-Andhari Tiger Reserve

Case Title: Abhishek s/o Vinodsingh Thakur and Anr v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 36

The Bombay High Court refused to grant anticipatory bail to two individuals accused of cheating the Forest Department out of booking amount received from tourists for online booking of jungle safari in Tadoba Andhari Tiger Reserve.

Justice Urmila Joshi-Phalke of the Nagpur bench, while rejecting anticipatory bail application of Abhishek and Rohitkumar Thakur, partners of the firm Wild Connectivity Solutions (WCS), observed –

“Considering the role of applicants in the crime having involved enormous and huge amount, siphoning of the amount and fabrication of digital data, and the investigation revealing the manner in which the forest department is duped and the government money is at stake, the role of the applicants is clearly exposed. In the background of accusations and its gravity, applicants are not entitled for being released on bail in the event of their arrest.”

The applicants are accused under Sections 420, 406, and 409 read with 34 of the Indian Penal Code.

Bombay High Court Orders Non-Bailable Warrant Against Non-Cooperative Bank of Baroda Branch Manager In Case Involving Bequeathal Of Assets To Caretaker

Case Title: Shera Noshir (@ Naushir) Vajifdar v. Bank of Baroda and Ors.

Citation: 2024 LiveLaw (Bom) 37

The Bombay High Court issued a non-bailable warrant (NBW) against the Branch Manager of Bank of Baroda (Fort), Rakesh Garg, in a testamentary matter wherein a spinster bequeathed her movable assets to her caretaker.

Justice Manish Pitale passed the order in an interim application filed by the 49-year-old caretaker who alleged that despite a probated Will in his favor, three banks were refusing to cooperate.

Previously, the court had issued notices to all three banks. While counsel appeared for Punjab National Bank (PNB) and Central Bank of India (CBI) on January 3, 2024, and assured cooperation from their end, none appeared for Bank of Baroda.

The court noted that neither of the banks had filed responses and that there was still no representation from the Bank of Baroda.

Accordingly, the court granted PNB and CBI a last chance to file their affidavits in the matter and issued an NBW against the Branch Manager of Bank of Baroda.

Offences Under Investigation Cannot Be Considered Basis For An Externment Order Against Accused: Bombay High Court

Case Title: Imtiyaz Hussain Sayyad v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 38

The Bombay High Court held that alleged offences which are under investigation, and for which a chargesheet has not been filed cannot be considered for passing an externment order against the accused.

Justice NJ Jamadar quashed and set aside an externment order against one Imtiyaz Hussain Sayyad observing that the externing authority considered two crimes against him even though the charge sheets had not been filed yet.

AO Has No Jurisdiction To Assess Or Reassess Income Which Was Subject Matter Of Appeal: Bombay High Court

Case Title: Shri Shanmukhananda Fine Arts v. Deputy Director of Income Tax

Citation: 2024 LiveLaw (Bom) 39

The Bombay High Court held that the AO has no jurisdiction to assess or reassess any income, which was the subject matter of an appeal.

The bench of Justice K.R. Shriram and Justice Neela Gokhale observed that since the grant of benefit under Section 11 of the Income Tax Act, 1961, was the subject matter of appeal and has been held in favour of the assessee, the matter cannot be reopened.

Govt Not Decided On Renewing Turf Club Lease Or Making Theme Park At Mahalaxmi Racecourse: Bombay HC Accepts AG's Statement, Keeps Pleas Pending

Case Title: Satyen Kapadia v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 40

The Bombay High Court accepted the Maharashtra Government's statement that they have not yet made a final decision about building a theme park or renewing the lease of the turf club on the 221-acre Mahalaxmi Racecourse.

A division bench comprising Justices GS Patel and Kamal Khata refused to immediately interfere with the Chief Minister's statement dated December 6, 2023, directing the Royal Western India Turf Club (RWITC), to hold an extraordinary general body meeting on January 31, 2024, and vote on a proposal for new terms of their lease. The lease of RWITC which runs the racecourse, expired in 2013.

Observing it could not pre-empt or ask the State to make a decision one way or the other, the court clarified all contentions were kept open.

Copyright Assignees Like PPL & Novex Are 'Owners', Can Issue Music License Without Being Registered Copyright Societies U/S 33(1) Of Copyright Act: Bombay HC

Case Title: Novex Communications Pvt Ltd. v. Trade Wings Hotel Limited

Citation: 2024 LiveLaw (Bom) 41

In a significant order, the Bombay High Court held that music rights holders like Phonographic Performance Ltd and Novex are copyright owners and can issue music licenses even if they are not registered as copyright societies under Section 33(1) of the Copyrights Act.

PPL and Novex are two companies that have acquired music assignments from producers like Tips, T-Series, Eros etc and are the exclusive licensees of these titles for the purpose of on-ground performance rights.

Justice R.I. Chagla ruled that "Section 33(1) of the Act cannot curtail the power of the owner to grant any interest in the copyright by license under Section 30 of the Act."

The court's decision grants greater flexibility to the companies and upholds the primacy of Section 30 which empowers copyright owners to grant licenses for their works. The court disagreed with the Madras HC's view in Novex Communications Vs. DXC Technology Pvt. Ltd. which distinguished between granting licenses in an individual capacity and carrying on the business of licensing.

Bombay High Court Directs Dept. To Accept Declaration Under VsV Act

Case Title: Neelam Ajit v. ACIT

Citation: 2024 LiveLaw (Bom) 42

The Bombay High Court at Goa directed the department to accept the declaration under the Vivad Se Vishwas Act, 2020 (VsV Act).

The bench of Justice M. S. Sonak and Justice Valmiki Sa Menezes observed that the delay alleged on the part of the Petitioner is hardly 11 days. The alleged deficit payment, if any, is of hardly 2,21,862. However, even if it is assumed that there was some marginal delay, this delay is attributable to the technical glitches and also the mistakes of the Respondents in processing the Petitioner's declaration.

The Petitioner/assessee filed a declaration under the VsV Act in Form 1 giving particulars of tax arrears and amounts payable in respect of the pending Income Tax dispute for Assessment Year 2017-18. Since the outstanding tax demand was 235,94,164/-, the amount under the VsV Act was computed at 14,04,620 after adjustment of the amount of 28,14,000, which the Petitioner already paid to the department.

S.67 Succession Act | Testamentary Court In Probate Proceedings Can't Decide Whether Bequest Is Void Due To Beneficiary Being Witness's Spouse: Bombay HC

Case Title: Cecilia Reynold D'souza & Ors. v. Ruby Cyril D'souza & Ors.

Citation: 2024 LiveLaw (Bom) 43

The Bombay High Court held that the issue of voidness of a bequest under Section 67 Indian Succession Act in a Will due to the beneficiary being the spouse of the witness is outside the jurisdiction of the Testamentary Court in proceedings for Probate of Will or Letters of Administration with Will annexed.

Justice Manish Pitale rejected an application filed by the daughters of a deceased man seeking to add in a testamentary suit an additional issue pertaining to voiding the bequest to the son of the deceased as the daughter-in-law was the witness to the Will. The court said that this issue should be addressed in separate proceedings.

S.4 POCSO Act | Merely 'Touching' Penis To Child's Private Part Constitutes Penetrative Sexual Assault: Bombay High Court

Case Title: XYZ v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 44

The Bombay High Court denied bail to a man accused of sexually assaulting his nieces observing that even touching the penis to the victim's vagina with sexual intent constitutes the offence penetrative sexual assault on a minor under Section 4 of the Protection of Children from Sexual Offences Act (POCSO).

“…even in case of penetrative sexual assault, it is not essential that there must be some injury to the hymen, labia majora, labia minora of the victim. Mere touching of the penis to the private part of the victim constitutes an offence under section 4 of the POCSO Act…,” Justice Prithviraj Chavan observed.

The court interpreted phrases 'inserts or penetrates to any extent' mentioned in Section 3 (a) and 3 (b) of the POCSO, which describes penetrative sexual assault, to include touching of the reproductive organs. The minimum punishment for the offence is prescribed under Section 4 and is 20 years.

Bombay High Court Grants Bail To POCSO Accused After Finding That Complainant, Advocate Submitted False & Impersonated Affidavit Before Notary

Case Title: XXX v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 45

The Bombay High Court granted bail to a man accused of sexually assaulting his daughter after finding that the complainant (wife of the accused) and her advocate, filed a false affidavit in the case.

Justice Madhav J Jamadar observed –

“This is a very serious case. Prima facie, the conduct of the Respondent No.2 (complainant) and the conduct of the learned Advocate Rohit Kumar amounts to interference in the administration of justice as false and fabricated affidavit is filed to oppose the grant of bail to the Applicant.”

The applicant's bail had earlier been cancelled by the sessions court based on certain WhatsApp messages, some of which contained indecent language and threats to Advocate Rohit Kumar.

Considering that the complainant presented a false affidavit in the HC while opposing the bail application, the court concluded that prima facie, there is every possibility that material was created, or the applicant was manipulated, in such a manner to prompt him to send those messages causing the cancellation of his bail.

Provide Free Medical Treatment To Poor In Kausa-Mumbra Even Without Yellow & Orange Ration Cards: Bombay High Court To Thane Municipal Corp

Case Title: Association for Protection of Civil Rights v. Municipal Commissioner

Citation: 2024 LiveLaw (Bom) 46

The Bombay High Court directed the Thane Municipal Corporation to ensure free treatment for all poor patients even if they don't have yellow and orange ration cards at its newly built 100-bed Hakim Ajmal Khan Hospital in Kausa-Mumbra.

A division bench comprising Justices Devendra Kumar Upadhyay and Arif Doctor observed that people living in that locality were “disadvantaged” and came from economically weak backgrounds, making it the court's duty to ensure they enjoy the facility of affordable public health services so that their right to life with dignity can be ensured.

“Thus, it is now well settled that duty of the State as cast by Article 47 of the Constitution of India has to be taken aid of for giving full meaning to right to life enshrined as fundamental right under Article 21 of the Constitution of India. Right to life does not mean mere animal existence, it will encompass in it the right to live with dignity and if any citizen is deprived of affordable public health services, right to life with dignity cannot be ensured, it will rather be compromised.”

The court disposed of a clutch of PILs filed by the Association for Protection of Civil Rights and others, seeking the court's intervention to ensure completion and proper functioning of the hospital project pending for over 15 years.

Bombay High Court Imposes ₹1 Lakh Cost On Slum Developer For Unauthorized Allotment Of Rehab Tenement Bypassing Lottery-Based Allocation Process

Case Title: Gopal Dinkar Vanave and Anr. v. Apex Grievance Redressal Committee, Slum Rehabilitation Authority and Ors.

Citation: 2024 LiveLaw (Bom) 47

The Bombay High Court imposed exemplary cost of Rs. 1 Lakh on developer Accord Builders for unilaterally allotting a rehab tenement without conducting a lottery process in the presence of a representative of the Assistant Registrar of Co-operative Societies, Slum Redevelopment Authority (SRA).

Justice Sandeep V Marne directed the allottees Gopal and Shekhar Vanave to vacate the tenement and dismissed their writ petition against SRA's declaration that the allotment of the tenement to them was invalid observing –

“I am aware of the fact that Petitioners will have to suffer on account of mistakes and illegalities committed on the part of Respondent No. 6-developer. However mere allotment and occupation of tenement No. D-1508 by Petitioners for sometime cannot be a ground to legitimate unauthorized allotment. It must be borne in mind that Respondent No. 4 is made to suffer for the last one and half years as she is unable to take possession of the tenement allotted to her…For inconvenience and loss suffered by Petitioners on account of vacation of tenement No. D-1508, Respondent No.6-developer is required to be saddled with exemplary costs for unauthorized allotment made by it to Petitioners.”

Much More In Life Than Material Things: Bombay High Court Laments Mother's Ouster From Home, Orders Son To Vacate Premises

Case Title: Dinesh Bhanudas Chandanshive v. State of Maharashtra and Ors

Citation: 2024 LiveLaw (Bom) 48

The Bombay High Court ordered a man and his wife to vacate his elderly mother's house observing that it was unfortunate that the mother, in her twilight years, was ousted from her house by her son rather than receiving love and care.

“The feeling of being disowned by one of her sons itself has caused her a trauma. None of the parents should suffer this way. In one's life, there is much more than material things. Proud would be the parents of such children who would have their own achievements on all fronts and not look at the wealth and money of their old parents”, the court observed.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla lamented such legal battles, stating that they show that the world is not idealistic as greed is a bottomless pit.

“It also appears that the petitioner had entered the premises visiting the mother and later on refused to remove himself from the premises and obtained occupation of the premises by creating circumstances to achieve her removal from her own house. She could not have suffered a “living hell” in her own house…It appears that the petitioner also refused to maintain the mother and provide her basic medical needs apart from food and clothing requirements”, the court further observed.

With these observations, the court dismissed the son's writ petition challenging an order of the Senior Citizens Maintenance Tribunal directing him to vacate the house.

The court emphasized that during the parents' lifetime, children cannot claim exclusive ownership or possession of their parents' property. In case other siblings are claiming rights in the premises the proper legal recourse for the petitioner would be filing a suit, and this cannot be during the lifetime of the mother, the court held.

'Finality Of Decision And Non-Arbitrability' Clause In GCC Does Not Imply An Arbitration Agreement: Bombay High Court

Case Title: Kalpataru Projects International Ltd. v. Municipal Corporation of Greater Mumbai and Anr.

Citation: 2024 LiveLaw (Bom) 49

The Bombay High Court rejected a construction company's claim that the dispute resolution clause in the General Conditions of Contract with Mumbai Municipal Corporation constituted a valid arbitration agreement due to a lack of mutual intention to arbitrate.

The court pointed out that the title "Finality of Decision and Non-Arbitrability" of the clause clearly indicates the parties did not intend for it to serve as an arbitration agreement. The bench of Justice Firdosh P. Pooniwalla further opined that mere declaration of the adjudication committee's decision as "final and binding" did not inherently indicate an intention to arbitrate.

The court added that the clause does not even make any reference to arbitration or appointment of an arbitrator, therefore, this dispute resolution clause did not constitute a valid arbitration agreement.

Govt Has The Loudest Voice With Biggest Megaphone, Doesn't Need A Fact Check Unit For Its Protection: Justice Gautam Patel On IT Rules Amendment

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 50

In a split judgement Justice GS Patel of the Bombay High Court said he would strike down Rule 3(1)(b)(v) of the IT Rules amendment 2023 empowering the government to establish a Fact check Unit and unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading.

Calling it a form of "censorship", Justice Patel held that the amendment violated the right to free speech under Article 19(1)(a) of the Constitution.

"What troubles me about the impugned 2023 amendment, and for which I find no plausible defence, is this: the 2023 amendment is not just too close to, but actually takes the form of, censorship of user content."

The court further stated that the amendment made the government the final decision maker of not just what was false of misleading but also of the right to have an opposing point of view.

Govt In Best Position To Provide Correct Facts About Itself; Criticism, Political Satire Not Stifled By IT Rules Amendment: Justice Neela Gokhale

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 51

In a split judgement, Justice Neela Kedar Gokhale of the Bombay High Court said she would uphold the 2023 amendment to IT Rules, 2021 empowering the government to establish a Fact check Unit and declare online content related to the government's business on social media platforms as fake, false or misleading.

Justice Gokhale rejected the argument that the impugned Rule, by encompassing critical opinions, satire, parody, and criticism, renders it unconstitutional. She underscored that the Rule specifically addresses content that is fake, false, or misleading; not genuine opinions or expressions.

On the question of vagueness of the terms 'fake, false, and misleading' and 'business of the government', Justice Gokhale opined that the government is in the best position to provide correct facts regarding its business and the vagueness of the term by itself is not sufficient to strike down the entire Rule as ultra vires. She emphasized that the terms 'Fake,' 'False,' or 'Misleading' are to be understood in their ordinary sense.

Pointing out the challenges of the "infodemic" era, Justice Gokhale highlighted the threat posed by dissemination of false information and observed that the right to participate in democracy is meaningless unless citizens have access to authentic information and are not misled by misinformation knowingly communicated with malicious intent.

“Presently, the threat of disinformation and hoaxes has evolved from mere annoyance to warfare that can create social discord, increase polarisation and in some cases, even influence election outcome. State and non-state actors with geopolitical aspirations, ideological believers, violent extremists, and economically motivated enterprise can manipulate social media narratives with easy and unprecedented reach and scale”, Justice Gokhale observed.

February

Maharashtra Civil Services Rules | Penalty Of Reduction In Pay Scale Doesn't Extend Beyond Period Of Employment, Impact Post-Retirement Benefits: High Court

Case Title: Dr. Ramchandra Bapu Nirmale v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 52

The Bombay High Court observed that the effect of reduction in pay scale of a state government servant, as a form of punishment, does not extend beyond the period of employment and impact post-retirement benefits.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain allowed a petition filed by one Dr. Ramchandra Bapu Nirmale seeking calculation of his pension based on his salary before it was reduced till retirement as a penalty.

“on a true reading of Rule 5(1)(v) [of the the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979] as a whole the Petitioner is justified in contending that calculation of post-retirement benefit of pension is not governed by Rule 5(1)(v). Provisions of Rule 5(1)(v) would be applicable during the period when an employee is in service and not to the benefits once he retires moreso because “increment of pay” used in the said Rule would be during the tenure of one's employment and not post retirement.

Bombay High Court Refuses To Extend Deadline For Dwarka Restaurant & Other Occupants To Vacate Premises At Dalal Street Junction

Case Title: Kamath Brothers (Dwarka) & Ors v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2024 LiveLaw (Bom) 53

The Bombay High Court refused to extend the deadline of January 29, 2024, for Dwarka restaurant and other occupants to vacate their premises situated at the junction of Dalal Street and Nagindas Master Road in Fort, Mumbai, so that the owner can undertake repairs. The restaurant is no longer operating in the concerned building.

As per the report of BMC's Technical Advisory Committee (TAC), the building is repairable, and is in the C-2A category but if not repaired as required, it will fall into the C-1, dilapidated, dangerous and uninhabitable category.

A division bench of Justice GS Patel and Justice Kamal Khata had on January 8, 2024, directed the restaurant and six other occupants to vacate the premises within by January 29, 2024. The court had said that while the application for repairs was under process with BMC, the Petitioners must not await the grant of that permission and directed them to vacate the premises.

Bombay High Court Issues Contempt Notices To Lawyer, Client For Seeking Judge's Recusal Based On 'Fabricated' News Clipping Against Him

Case Title: Amar Sadhuram Mulchandani v. Directorate of Enforcement and Ors.

Citation: 2024 LiveLaw (Bom) 54

The Bombay High Court directed registration of a suo motu contempt petition against lawyers - Zoheb Merchant and Minal Chandnani, and their client for using a fabricated news article with scandalous allegations against a judge to get him to recuse himself from hearing the case.

A division bench comprising Justices Anuja Prabhudessai and NR Borkar observed such allegations didn't merely attack the dignity of an individual Judge but were an attack on the authority of the institution and majesty of the law.

“Such deliberate, motivated and contemptuous act, which impair the administration of justice or tend to bring the administration of justice into disrepute or lowers the dignity of the court fall within the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971.”

The court refused to accept an apology form the three contemnors, finding their approach ingenuine.

Bombay High Court Dismisses Plea By Kangana Ranaut Seeking Stay On Criminal Defamation Case Filed Against Her By Javed Akhtar, Says She Filed Petition Belatedly

Case Title: Kangana Ranaut v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 55

The Bombay High Court dismissed a plea by actor Kangana Ranaut seeking a stay on the criminal defamation case filed against her by lyricist Javed Akhtar in 2020 and a further prayer for the case to be clubbed with the cross-complaint she subsequently filed against him.

Justice Prakash Naik passed the order and held that the proceedings could not be stayed or clubbed since Ranaut had never contended that the cases were cross-cases, and notwithstanding the same, Akhtar's complaint was filed first. It was held –

“the trial in the complaint initiated by Respondent No.2 had already commenced and reached at final stage. Petitioner preferred this petition at belated stage. After resorting to remedies challenging proceedings against Petitioner, the complaint was filed by Petitioner against Respondent No.2. Thereafter the present application was preferred on the grounds as stated herein above. After filing the complaint belatedly, the Petitioner had contended that, both cases are to be tried simultaneously.”

S. 4 POCSO Act | Merely 'Touching' Penis To Child's Private Part Not Penetrative Sexual Assault: Bombay High Court

Case Title: ABC and Anr. v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 56

The Bombay High Court reduced the sentence of two men booked for forcing their 13-year-old orphaned niece to do all household chores, depriving her of food, making her sleep in the bathroom, and sexually abusing her multiple times.

The duo was convicted by the trial court for rape under section 376(2)(f)(n) of the IPC and for penetrative sexual assault under Sections 4 & 6 of the Protection of Children from Sexual Offences (POCSO) Act. They were sentenced to 10 years imprisonment.

Justice Abhay Waghwase of the Aurangabad bench observed that since the men only conclusively touched their penises to the child's vagina, it would not constitute rape. It held them guilty of sexual assault, reducing their sentence to five years of rigorous imprisonment.

Employer's Right To Punish Errant Employee Can't Be Circumscribed By Blanket Order: Bombay High Court Allows Indian Express' Plea

Case Title: The Indian Express (P) Ltd. and Ors. v. Dinesh Rane and Ors.

Citation: 2024 LiveLaw (Bom) 57

The Bombay High Court set aside interim relief granted to twelve Indian Express employees against termination and transfers observing that interim relief cannot be granted merely because the employees have filed an Unfair Labour Practices complaint.

Justice Sandeep V Marne allowed a writ petition by Indian Express against a September 2022 order by which the Industrial Court, Thane prevented termination of the respondents and imposed restrictions on transfers despite prima facie rejecting the employees' allegations.

“The manner in which the Industrial Court has exercised its jurisdiction is disquieting…The blanket order of Industrial Court seeks to circumscribe the right of the employer to punish an errant employee or from effecting transfers, that too in absence of any eminent threat or prima facie case being made out. The argument of non-cause of prejudice to employer cannot be accepted as the Order may provide license to employees to misbehave or indulge in misconduct”, the court observed.

The court pointed out the absence of formal notices or charges against the employees, rendering their claim for interim protection baseless.

[False Promise To Marry] Bombay High Court Discharges Man in Rape Case, Says He Was Ready To Marry But Couldn't Due To Disapproval Of Parents

Case Title: Gaurav s/o Ravi Wankhede v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 58

The Bombay High Court discharged a man accused of rape by false promise to marry observing that offence was not made out as he had been ready to marry the complainant but couldn't due to the disapproval of his parents, a circumstance beyond his control.

Justice MW Chandwani of the Nagpur Bench found no material to indicate that the accused didn't intend to marry the complainant from the beginning.

“It is clear from the allegations in the F.I.R. that it is the applicant, who was ready to marry. Merely because he resiled from his promise to marry, since his parents were not agreeable to their marriage, it cannot be said that the applicant committed the offence punishable under Section 375 of I.P.C.”, the court held.

The court said that at most, this was a case of non-fulfilment or a breach of promise due to unforeseen circumstances beyond the control of the accused as his parents refused.

Justifiable Doubts Regarding Arbitrator's Independence Must Be Raised Under Sec. 13 Only, Bombay HC Rejects Section 14(2) Petition By Solaris Developers

Case Title: Solaris Developers Pvt. Ltd. v. State Bank of India.

Citation: 2024 LiveLaw (Bom) 59

The High Court of Bombay bench comprising Justice Bharati Dangre dismissed a petition filed by Solaris Developers against Bhagyashree Co-operative Housing Society Ltd. under Sections 14(2) and 15(2) of the Arbitration and Conciliation Act. Justice Bharati held that Solaris Developers must have pursued the matter under Section 13 of the Act if they wanted to challenge the arbitrator's appointment based on justifiable doubts regarding her independence and impartiality. The requirement of Section 14 only renders an arbitrator de jure ineligible if he/she is a “close family member” of one of the parties, which was not the case.

High Court Directs Mumbai's Renaissance Hotel To Pay ₹25 Lakhs To Driver Fired Without Disciplinary Inquiry & Retrenchment Compensation

Case Title: M/s. Chalet Hotels Ltd. v. Bhikan Laxman Deokar and Anr.

Citation: 2024 LiveLaw (Bom) 60

The Bombay High Court directed Mumbai's Renaissance Hotel and Convention Centre to pay Rs. 25 lakhs as lumpsum compensation to a former driver terminated without disciplinary inquiry and retrenchment compensation.

Justice Sandeep V Marne held that an employer-employee relationship existed between the hotel and the driver despite payment of his salary by the contractor providing transport services to the hotel, as his initial appointment was with the hotel, and the hotel had control over his work due to the authority to dismiss and take disciplinary action.

“It is clear that except the test of actual payment of salary, all other tests prescribed by the Apex Court in Balwant Rai Saluja are satisfied in the present case. In my view, therefore no serious error can be traced in the finding recorded by the Labour Court that there existed employer-employee relationship between the Hotel and the workman”, the court observed.

The court relied on six tests for determining the employer-employee relationship laid out in Balwant Rai Saluja v. Air India Ltd. (2014). The relevant factors include initial appointment, salary payment, authority to dismiss, disciplinary action, continuity of service, and extent of control, it said.

Bombay High Court Annuls Adoption Of 3-Year-Old After Adoptive Parents Complain Of Bad Behaviour & Express Lack Of Bond With Child

Case Title: Bal Asha Trust, Mumbai v. ABC

Citation: 2024 LiveLaw (Bom) 61

The Bombay High Court annulled the adoption of a three-year-old boy after the adoptive parents complained of his uncontrollable bad behaviour and expressed a lack of bonding with the child.

Justice RI Chagla directed CARA to re-register the child as 'Free for Adoption' to identify suitable prospective adoptive parents promptly.

“I am of the considered view that it would be in the interest of the said male minor child that the adoption order dated 17th August 2023 is annulled and consequential reliefs sought for in the said Affidavit are granted”, the court said.

Bombay High Court Grants Bail To Former Pune Corporator's Sons Convicted For Murder Citing Long Incarceration Despite Pending Appeals

Case Title: Tushar Tanaji Nimhan & Anr. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 62

The Bombay High Court granted bail to Tushar and Chetan Nimhan, sons of former NCP corporator Tanaji Nimhan, convicted for the murder of Pratik Nimhan – nephew of another former NCP corporator. The Nimhan brothers had been behind bars since their arrest on April 14, 2023.

The brothers, along with co-accused Munna, are convicted under sections 302 and 452 read with section 34 of the IPC and sentenced to life imprisonment.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak emphasized that the applicants had already spent more than 10 years and 10 months in incarceration and concluded that they were entitled to be released on bail during the pendency of their appeals.

The High Court's decision was based on observations of the Supreme Court in recent orders.

“The view expressed by the Hon'ble Supreme Court in the cases of (i) Saudan Singh Vs. State of Uttar Pradesh [2022 SCC Online SC 697]; (ii) Suleman Vs. The State of Uttar Pradesh, Criminal Appeal No. 491 of 2022 (Arising out of SLP (Cri) No.1451 of 2022) dated 25th March, 2022; and (iii) Dinesh @ Paul Daniel Khajekar Vs. State of Maharashtra & Anr., Criminal Appeal No. 2987 of 2023 (Arising out of S.L.P) (Cri.) No. 10320 of 2023) dated 25th September, 2023, the Applicants are entitled to be released on bail during the pendency of their Appeals.”

Exercise Of The Right To Remain Silent Cannot Be Equated With Non-Cooperation: B ombay High Court

Case Title: Chanda Kochhar v. Central Bureau of Investigation

Citation: 2024 LiveLaw (Bom) 63

The Bombay High Court declared former ICICI bank CEO and MD Chanda Kochhar and her husband Deepak Kochhar's arrest in the 'ICICI Bank - Videocon Loan Fraud Case' as illegal and confirmed an interim order on their release last year.

Justice Anuja Pabhudessai confirmed an interim order in January, 2023 in which a coordinate bench held their arrest was prima facie not in accordance with section 41A and section 41(1)(b)(ii) of the CrPC.

The bench rejected the reasons cited by CBI for arrest in the arrest memo in December 2023 which included non-cooperation and non-disclosure of true facts of the case. The court also observed that the judge failed to properly record his own satisfaction while granting their custody to CBI.

“The right to silence emanates from Article 20(3) of the Indian Constitution, which gives an accused the right against self-incrimination. Suffice it to say that exercise of the right to remain silent cannot be equated with non-co-operation”, the court observed.

“Investigating agency has not been able to demonstrate existence of circumstances or supportive material on the basis of which the decision to arrest was taken. Absence of such circumstances, information or material which is the sine qua non for the decision of arrest reduces the provision a dead letter and renders the arrest illegal”, the court held.

Bombay High Court Quashes Summons To AAP's Arvind Kejriwal Over Alleged Violation Of Model Code Of Conduct During 2017 Assembly Elections

Case Title: Arvind Kejriwal v. State of Goa

Citation: 2024 LiveLaw (Bom) 64

The Goa bench of the Bombay High Court quashed the summons issued to Aam Aadmi Party Convenor and Delhi CM Arvind Kejriwal by a magistrate in a case of alleged violation of the model code of conduct.

Justices MS Sonak and Valmiki Menezes recorded –

“…Public Prosecutor, in deference to the decision of the Hon'ble Supreme Court in the case of Mehmood Ul Rehman vs. Khazir Mohammad Tunda and ors. (2015) 12 SCC 420 agrees that the impugned order dated 19/9/2022, taking cognizance and issuing summons to the Petitioner, can be set aside and the matter remitted to the Judicial Magistrate, First Class, 'A' Court at Mapusa taking up Criminal Case No.33/S/2018/E/A to consider the complaint in accordance with law and on its own merits.”

The complaint was filed against Kejriwal during the 2017 Goa assembly election; however, procedures were not followed before apprehending him. The matter will now be heard before the magistrate on February 12.

The case was registered for violating Section 123 (1) of the Representation of the People Act and sections 171 B and 171 E of the Indian Penal Code (IPC) and Kejriwal was initially asked to appear on November 29 last year, which he failed to heed and instead sought exemption.

Clearing PET Compulsory For PhD Admission: Bombay High Court Upholds Cancellation Of PhD Admission Of Rifle Shooter Who Was Admitted Without Clearing Entrance Test

Case Title: Shilpa Gorakh Chavan v. University Grants Commission and Ors.

Citation: 2024 LiveLaw (Bom) 65

The Aurangabad bench of the Bombay High Court upheld the cancellation of admission of a rifle shooter admitted to the PhD programme of the Marathwada University without clearing the PhD Entrance Test (PET) as a special case on the basis of excellence in national sports events.

A division bench Justice Vibha Kankanwadi and Justice SG Chapalgaonkar observed that clearing PET is compulsory and while it might not have been held from 2016 to 2021, this did not justify the Vice Chancellor giving admission without following due process.

“We have no hesitation to hold that the admission of the petitioner was backdoor entry to Ph.D. programme. The petitioner contended that PET was not held from 2016 to 2021. Though this appears to be a true fact but it cannot be taken as a justifiable ground for Vice Chancellor to admit her for the Ph.D. course…There might be many students during said period who would have been deprived because of non-holding of PET. Everyone cannot be considered eligible for admission on that ground. In absence of any special powers to Vice Chancellor, entire procedure gets vitiated ab initio”, the court held.

Exclusive Supervisory Jurisdiction Granted To Court Receiving First Application Under Arbitration Act, Bombay HC Limits Territorial Jurisdiction

Case Title: Hyundai Construction Equipment India Pvt. Ltd v. Saumya Mining Limited and Anr.

Citation: 2024 LiveLaw (Bom) 66

The Bombay High Court bench comprising Justice Neela Gokhale held that in cases where an application has been made in a court concerning an arbitration agreement, that court alone possesses jurisdiction over an application for appointment of arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996. Further, the bench held that even in agreements where no specific seat is mentioned, multiple courts may potentially have jurisdiction, depending on where a part of the cause of action arises.

HSBC Bank Carrying On Bona Fide Banking Business In Mauritius Exempt From Tax In India: Bombay High Court

Case Title: Commissioner of Income Tax v. M/s. HSBC Bank (Mauritius) Ltd.

Citation: 2024 LiveLaw (Bom) 67

The Bombay High Court held that HSBC Bank carrying on bona fide banking business in Mauritius is exempt from tax in India.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that interest arising in a contracting state (India) shall be exempt from tax in that state (in India) provided the income is derived and beneficially owned by any bank carrying on a bona fide banking business that is a resident of the other contracting state (Mauritius).

Very Alarming Situation: Bombay HC Calls For Pollution Audit Of Industries In Mumbai's Metropolitan Region To Tacke Air Pollution, Asks PCB To Submit Roadmap

Case Title: High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 68

The Bombay High Court directed the Maharashtra Pollution Control Board (MPCB) to consider conducting a pollution audit of all industries in the Mumbai Metropolitan Region (MMR) and submit a roadmap as to how the pollution audit can be conducted.

A division bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Girish Kulkarni, while hearing a suo moto PIL on air pollution in Mumbai, called the situation 'very alarming' and urged action to address the threat to public health.

The court explained that a pollution audit involves rigorous inspections of industries to ascertain compliance with emission norms, especially given that industrial emissions contribute significantly to air pollution in the region, accounting for 20-30 percent of pollutants.

Individual/Minority Members Of Housing Society Can't Invoke Arbitration Clause In Development Agreement: Bombay High Court

Case Title: Ketan Champaklal Divecha v. DGS Township Pvt. Ltd. & Anr.

Citation: 2024 LiveLaw (Bom) 69

The Bombay High Court bench comprising Justice Manish Pitale held that individual and minority members of a society cannot invoke arbitration clauses in development agreements against the developer. The bench held that when a society and its members enter into a development agreement with the developer, the society speaks for its members and the members would lose their independent rights qua the society.

Custody Battle: Bombay High Court Pulls Up Father For Making "Hollow Claims" Of Racial Discrimination Against Dutch Ex-Wife And In-Laws

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 70

The Bombay High Court took strong exception to a lawyer's accusation of racial discrimination against his ex-wife and her Dutch family in a child custody case.

The court allowed the woman to take her daughter back to Netherlands in accordance with orders previously issued by a Dutch Court and the father's undertaking to that court.

A division bench of Justices AS Gadkari and Shyam Chandak held that the father's claims of racial discrimination against him and his five-year-old daughter were “completely hollow” and a “sham plea.”

“India is undoubtedly known for its zero-tolerance policy towards racial discrimination. The Respondent No.2 (father), however, had the audacity to take the shelter of the defence of racial discrimination; that too against the Petitioner (mother), who once was his wife and spent considerable years with him.”

“This way, the Respondent No.2 has lowered the image of the India and its citizens in the view of Petitioner and her fellow nationals. We record our displeasure for this conduct as according to us, it is unethical,” the court added.

AO Can't Take Recourse To Re-open Assessment To Remedy Error Resulting From His Oversight In Assessment Proceeding: Bombay High Court)

Case Title: Emkay Global Financial Services Ltd. v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 71

The Bombay High Court held that the assessing officer cannot take recourse to reopen the assessment to remedy the error resulting from his oversight in the assessment proceeding.

The bench of Justice KR Shriram and Justice Kamal Khata observed that the assessment cannot be reopened by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts, as the Income Tax Officer had material facts before him when he made the original assessment.

SARFAESI | DRI Can't Prevent Secured Creditors From Recovering Dues Citing Probe Against Debtor Under Customs Act: Bombay High Court

Case Title: Bank of Maharashtra. v. Directorate of Revenue Intelligence and Anr.

Citation: 2024 LiveLaw (Bom) 72

The Bombay High Court held that a secured creditor cannot be prevented from recovering its dues from assets of the debtor under the SARFAESI Act on the ground that the debtor is under investigation for violation of Customs Act.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla quashed a letter from the Directorate of Revenue Intelligence (DRI) to Bank of Maharashtra ordering it to not take any action on the debtor's property without consulting the DRI.

“it would be clear that the recovery as initiated by the petitioner under the SARFAESI Act cannot be impeded by the respondents (DRI) by taking recourse to Section 142A of the Customs Act. The reason being that Section 142A itself is a provision which saves the provisions of the SARFAESI Act under which the action was resorted by the petitioner to recover its dues from respondent No. 2. In any event, it is well settled that unless there is a preference given to a Crown debt by a statute, the dues of a secured creditor like the petitioner would have preference over Crown debts”, the court observed.

Legal Services Provided By Individual Advocate, Partnership Firm Of Advocates Exempted From Service Tax: Bombay High Court

Case Title: Adv. Pooja Patil v. Deputy Commissioner

Citation: 2024 LiveLaw (Bom) 73

The Bombay High Court held that the service provided by an individual advocate, a partnership firm of advocates, by way of legal services is exempt from levy of service tax.

The bench of Justice GS Kulkarni and Justice Kishore C Sant observed that the taxable service in respect of services provided or to be provided by the individual advocate for a firm of advocates has been set out to be 'Nil'. The Notification No. 25/2012, dated June 20, 2012, also clearly provides that the service provided by an individual advocate, a partnership firm of advocates, by way of legal services, is exempt from the levy of service tax.

S.202 CrPC | Magistrate Must Conduct Enquiry Before Summoning Accused Living Beyond Jurisdiction, Can't Solely Rely On Complaint: Bombay HC Full Bench

Case Title: Bansilal S. Kabra v. Global Trade Finance Limited & Anr

Citation: 2024 LiveLaw (Bom) 74

The Bombay High Court's full bench observed that when a Magistrate is conducting a mandatory inquiry under Section 202(1) of the Criminal Procedure Code (CrPC) before summoning an accused who lives outside the court's jurisdiction, the Magistrate shouldn't solely rely on the allegations in the private complaint as it can be used as an instrument of vendetta.

Instead, the Magistrate should undertake a deeper examination after recording the complainant or witness's statement on oath, and documentary evidence to ascertain if there are 'sufficient grounds' to issue process against the accused.

“It is… the duty of the Magistrate to prima facie find out, if the case is made out by the complainant against the accused before the process is issued, so as to avoid any frivolous or vexatious claims being taken forward by the Magistrate.”

Contradictory Information On Eligibility For LLB, Bombay High Court Grants Relief To Law Aspirant

Case Title: Anoushka Tusharkumar Desai v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 75

The Bombay High Court set aside the University of Mumbai's decision to deny admission to a law aspirant over confusion regarding the grading system of the International Baccalaureate (IB) students to the LLB program.

The court allowed a petition filed by Anoushka Tusharkumar Desai, 20, challenging the varsity's notices declaring her ineligible for the 5-year LLB course despite securing 60% marks in IB. The university cited equivalence norms requiring IB students to secure 24 credit points, whereas Desai had only 22 points.

"There appears to be some contradiction and confusion between what is stated in the AIU procedure and what is stated in the Circular issued by the University and the Information Brochure of State CET. In such a scenario, the benefit has to be given to the Petitioner," the division bench of Justices Jitendra Jain and A S Chandurkar observed.

Parent And Borrowing Dept Bound By Terms Of Deputation: Bombay HC Holds Reduction In Foreign Allowance Of Officer Deputed To Maldives Illegal

Case Title: Basant Kumar Bihani v. Union of India

Citation: 2024 LiveLaw (Bom) 76

The Bombay High Court observed that the terms of appointment by deputation not only bind the employee but also the parent and borrowing departments, and any reduction in the entitlements agreed upon at the time of deputation would be illegal.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor, set aside the reduction in Foreign Allowance two years after the deputation of an officer in Male, Maldives.

“any reduction in the said amount will amount to violation of the terms and conditions on which the petitioner's appointment on deputation was made as an expert at IGMH at Male (Maldives). The terms, on which an order of appointment of deputation of an employee is made, does not bind the employee alone; the parent department as also the borrowing department are equally bound by such terms.”

The court directed the Ministry of External Affairs to pay one Basant Kumar Bihani the difference between the originally agreed upon foreign allowance and the reduced foreign allowance along with 6 percent simple interest within three months.

Separate Arbitration Agreement Necessary Between Parties For Reference To Arbitration U/s 18(3) Of MSMED Act by Council: Bombay High Court

Case Title: M/s Bafna Udyog v. Micro & Small Enterprises, Facilitation Council and anr.

Citation: 2024 LiveLaw (Bom) 77

The Bombay High Court bench comprising Justice Neela Gokhle held that the parties should have a separate arbitration agreement between them for reference to arbitration under Micro, Small & Medium Enterprises Development Act, 2006 by Micro & Small Enterprises, Facilitation Council. The bench rejected the argument that Section 18(3) of the MSMED Act 2006 provides for a deemed arbitration agreement, thereby, eliminating the necessity for a separate arbitration agreement between the parties.

Arbitrators Can't Unilaterally Modify Fee, Needs Parties' Consent: Bombay High Court

Case Title: Shanklesha Construction and Ors. v. Ashok Mohanraj Chhajed

Citation: 2024 LiveLaw (Bom) 78

The Bombay High Court bench comprising Justice Manish Pitale held that any amendments, revisions, or modifications in fees of an arbitrator must only occur with the consent of the parties, as outlined in the tripartite agreement and per Schedule IV of the Arbitration and Conciliation Act, 1996. The High Court also held that the arbitrator is not bound by the strict rules of the CPC and the Evidence Act and can employ a reasonable approach while judging the proceedings, in light of the principles of natural justice. Any grievances related to the conduct of the proceedings can be raised by the aggrieved party under the grounds mentioned in Section 34 of the Arbitration and Conciliation Act, 1996.

Extension of Arbitrator's Mandate Lies Exclusively With Court Which Appointed Arbitrator: Bombay High Court

Case Title: KIPL Vistacore Infra Projects JV v. Municipal Corporation of the city of Ichalkarnji

Citation: 2024 LiveLaw (Bom) 79

The Bombay High Court bench comprising Justice Bharati Dangre held that the power to extend the mandate of an arbitral tribunal or arbitrator under Section 29-A of the Arbitration and Conciliation Act, 1996 lies exclusively with the court that appointed the arbitrator(s). The bench held that the term 'Court' in Section 29A must be interpreted in a manner consistent with the Court's power to appoint arbitrators under Section 11.

Will | Person Directed To Make Payments From A Particular Fund But Not Out Of The Entire Estate Is Not Executor: Bombay High Court

Case Title: Dimple Rakesh Doshi v. Jayshree Manmohandas Sanghavi

Citation: 2024 LiveLaw (Bom) 80

The Bombay High Court observed that when directed to make payments from a particular fund in a Will, a person cannot be deemed an executor of the Will by implication if they lack the general power to receive and pay from the entire estate of the deceased.

Justice Manish Pitale stated –

“even when a person is directed to make certain payments out of a particular fund but not out of the general estate, it cannot be said that such a person has been appointed as an executor by implication.”

Bombay High Court Quashes Judicial Officer's Cruelty FIR Against Husband And Relatives, Says It Is A Counterblast To Matrimonial Dispute

Case Title: ABCD v. WXYZ

Citation: 2024 LiveLaw (Bom) 81

The Bombay High Court quashed an FIR filed by a judicial officer against her husband and in-laws alleging cruelty and other offences observing that the FIR was a counterblast to a matrimonial dispute between the couple.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain observed that the delay in lodging the FIR along with the fact that the incidents described in the FIR do not constitute any of the offences invoked in the FIR shows that it was a counterblast in a matrimonial dispute.

According to the FIR, various matrimonial disputes arose between the couple after marriage, leading to the husband filing for divorce in 2023. The complainant in the FIR alleged that on the morning of June 7, 2023, the husband and his brother entered her judicial chambers and pressured her to sign mutual consent divorce papers. When she refused, the husband's other family members did the same thing in the afternoon. This, she said, obstructed her from discharging her official duties.

The FIR was registered for offences under section 186 (obstructing public servant in discharge of public functions), 342 (punishment for wrongful confinement), 353 (assault or criminal force to deter public servant from discharge of duty), 498A (husband or relative subjecting a woman to cruelty), and 506 (criminal intimidation) of the IPC.

"Reproductive Health Is A Facet Of Personal Liberty": Bombay High Court Allows Two Couples To Use Prohibited Donor Gametes For Surrogacy

Case Title: XYZ v. The Union of India

Citation: 2024 LiveLaw (Bom) 82

The Bombay High Court allowed two women to undergo surrogacy using 'donor gametes' which is otherwise prohibited under an amendment in 2023 to Surrogacy (Regulation) Rules, 2022. The bench noted that one of the two petitioners was diagnosed with a rare genetic disorder. The doctor opined there were high chances of the disorder being passed on the foetus as well. Therefore IVF experts advised surrogacy to avoid passing on the genetic defects to a child. The second petitioner also couldn't conceive due to various medical reasons.

Justices GS Kulkarni and Firdosh Pooniwala observed, “...we are of the clear opinion that if the protection as prayed for is not granted to the Petitioners it would certainly prejudice their legal rights to achieve parenthood through surrogacy which they ought to be permitted without the insistence on the compliances of condition as stipulated under the impugned notification dated 14 March 2023.”

The petition, filed through Advocate Tejesh Dande, challenged a Central Government notification dated March 14, 2023, amending Clause 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022.

As per the amendment, the procedure is restricted to the use of gametes of only the intending couple undergoing surrogacy, and no donor gamete is allowed. Further, a single woman undergoing surrogacy is allowed to use only self-eggs and donors forms.

Fraud Being Non-Arbitrable Due To Complexity Is Archaic Position, Contemporary Arbitration Practice Has Evolved: Bombay High Court

Case Title: Nilesh Shejwal v. Agrowon Agrotech Industries Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 83

The Bombay High Court single bench comprising Justice Bharati Dangre held that due to an evolution in contemporary arbitration where there was a belief that fraud disputes were unsuitable for arbitration, today, arbitral tribunals routinely navigate through extensive material in various dispute types. Thus, it held that the previous notion of fraud being non-arbitrable due to complexity is archaic and no longer applicable in modern arbitration practices.

Bombay High Court Imposes 50K Costs On Slum Occupant For Making Claims Contrary To Original Pleadings In Suit Against Developers

Case Title: Ravi Ashish Builders Ltd v. Shardadevi Vikramjeet Yadav and Anr.

Citation: 2024 LiveLaw (Bom) 84

The Bombay High Court imposed costs of Rs. 50,000 on a slum occupant who tried to amend a suit against the slum developers seven years after filing it and introduce claims contrary to her original pleadings.

Justice Kamal Khata set aside an order dated September 10, 2018, allowing the amendment to the slum occupant's suit and observed that she was trying to hold onto the transit accommodation despite having sold the allotted permanent alternate premises before filing the suit. Court said:

“It appears that the entire endeavour of the Respondent No. 1 is to continue holding onto the transit accommodation. She has already sold the allotted premises six months prior to the filing of the suit in 2008. This fact, recorded in the Court's Order, is not challenged and thus stands. The Respondent No. 1's action clearly smacks of malfeasance.”

The court allowed a writ petition filed by Ravi Ashish Builders Ltd. challenging the order.

Order 23 Rule 3A | Bar To Suit Challenging Compromise Decree Not Attracted When Compromise Recorded But Suit Not Disposed: Bombay HC

Case Title: Moti Dinshaw Irani and Anr. v. Phiroze Aspandiar Irani and Ors.

Citation: 2024 LiveLaw (Bom) 85

The Bombay High Court observed that bar under Order 23 Rule 3A of the CPC on a suit against a compromise decree is not attracted when a compromise is merely recorded in the earlier suit but the suit is not yet disposed.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain allowed an appeal against a trial court order declaring a suit non-maintainable observing that while the compromise had been recorded in the earlier suit, it had not yet been decreed.

“It is thus clear from the record that there was no decree passed on 4th July, 1995 based on compromise as stated to be recorded below Exhibit-53 in SCS No.268/1978, when the Trial Court proceeded to hold that the subsequent suit was not maintainable in view of the provisions of Order XXIII Rule 3A of the Code. If the earlier suit itself was pending and no decree therein had been passed, there would be no question of the provisions of Rule 3A of Order XXIII of the Code being attracted”, the court held.

Bombay High Court Dismisses Plea By Deceased's Mother Against Legal Heirship Certificate To Son Of Deceased Excluding Her, Says He Wasn't ound To Disclose Her Pending Suit Claiming To Be A Legal Heir

Case Title: Gitadevi Ramprakash Podar v. Pragnesh Narayan Podar and Ors.

Citation: 2024 LiveLaw (Bom) 86

The Bombay High Court refused to revoke legal heir certificate granted to wife and children of a deceased man in a petition filed by a woman claiming to be his biological mother, who alleged that the son of the deceased suppressed her pending suit claiming to be a legal heir.

The petitioner's pending suit seeks a declaration that the deceased was her son and challenges his alleged adoption by her husband's brother.

Justice Manish Pitale observed that the son of the deceased while seeking dispensation of proclamation in proceedings for legal heirship certificate was not bound to disclose the petitioner's suit to the court as the suit has not yet been decided.

The court observed that until the petitioner's claim of being a legal heir is accepted by the competent court, she cannot claim to be an heir of the deceased, and “there is no question of the petitioner making any claim, including a claim that proclamation should have been issued for her to oppose the grant of legal heirship certificate”.

The court dismissed the woman's petition seeking the revocation of the legal heirship certificate stating –

“If the contentions raised on behalf of the petitioner are to be accepted, any stranger could file a suit claiming declaration with regard to some relation with the deceased and then seek revocation of grant of legal heirship certificate on the basis that proclamation ought to have been issued, merely because the suit was filed and it was pending.”

Married Sister-In-Law Who Frequently Visits House Not In Domestic Relationship With Complainant: Bombay High Court Quashes Domestic Violence Case

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 87

The Bombay High Court quashed a domestic violence case against a woman's married sister-in-law observing that the sister-in-law visiting frequently to the household of the complainant without any permanency is not sufficient to constitute residence in shared household.

Justice Sharmila U Deshmukh allowed a writ petition filed by the sister-in-law challenging the order of the Sessions Court which overturned the decision of the Metropolitan Magistrate to dismiss the domestic violence complaint against her.

“there was no subsisting domestic relationship between the Petitioner and the Respondent No 1 and the Petitioner could not have been arrayed as Respondent in the D.V. application. The mere visits of the Petitioner to the shared household being devoid of any permanency is not sufficient and adequate to constitute residence in shared household. Even otherwise considering the pleadings in the applications read with the reliefs, there is no case of domestic violence made out qua the Petitioner”, the court held.

Assessee Ought Not To Have Meted Out Discriminatory Treatment Of Denying Clearance: Bombay High Court Allows Provisional Release Of Premium Cold Coffee

Case Title: M/s. SCK International v. Commissioner of Customs (Nhava Sheva-V)

Citation: 2024 LiveLaw (Bom) 88

The Bombay High Court held that the petitioner ought not to have been meted out such discriminatory treatment as denying clearance. The harsh and unreasonable conditions cannot be imposed, and more so when there is not an iota of material on the part of the department, as placed before the Court, indicating as to why a different yardstick would be required to be applied to the present consignments when earlier seven consignments were released at 16% to 28% bank guarantee.

The bench of Justice G. S. Kulkarni and Justice Firdosh P. Pooniwalla directed the department to grant provisional release of the goods to the petitioners by accepting the bank guarantee from the petitioner of Rs. 3,49,000 in respect of the first bill of entry and the bank guarantee of Rs. 2,00,000 in respect of the second bill of entry. The necessary action in that regard must be taken within 10 days. In addition to the bank guarantees, the petitioner shall furnish a bond as per the conditions as incorporated in the letter of the Assistant Commissioner of Custom dated November 15, 2023, for the full value of the goods, which is Rs. 37,34416.

Bombay High Court Grants Relief To Advocate Put On Indian Bank Association's 'Caution List' For Alleged Negligence In Vetting Properties

Case Title: Shailesh Vishwanath Jambhale v. The General Manager, State Bank of India

Citation: 2024 LiveLaw (Bom) 89

The Bombay High Court directed the Indian Banks' Association (IBA) to remove from its caution list the name of an advocate accused of causing huge loss to SBI on account of negligence while making Search and Title Reports for properties intended for loan sanction.

A division bench Justice AS Chandurkar and Justice Jitendra Jain observed that the empanelled advocate was not responsible for obtaining certified copies of documents and conducting inspection of the properties against which loans, that later turned out to be fraudulent, were issued.

“the reasons given for placing the Petitioner on Caution List were really the responsibility of the officials of Respondent No.1 (SBI) as per these guidelines, which appears to have not been observed by the officials of Respondent No.1. These responsibilities, now post unearthing of the fraud, cannot be shifted to the Petitioner to pass the buck.”

Bombay High Court Refuses ST Status To Dhangar (Shepherd) Community In Maharashtra, Says It Was Not A Zero-Member Community When It Was Added To The List Of ST Through Presidential Orders In The 1950s

Case Title: Maharani Ahilyadevi Samaj Prabodhan Manch v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 90

In a setback for approximately 1.5 crore people of the Dhangar (shepherd) community in Maharashtra, the Bombay High Court dismissed pleas seeking Scheduled Tribe (ST) status for the community.

A division bench of Justices Gautam Patel and Kamal Khata dismissed a clutch of petitions with the Maharani Ahiliya Devi Samaj Prabodhan Manch a Charitable Trust as the lead petitioner.

It was the petitioner's case that owing to a typographical error in Maharashtra (then Bombay), the ST status was accorded to a non-existent 'Dhangad' community in Presidential orders from the 1950s.

They cited affidavits from a certain “Khillare” family in 2023 - sole beneficiaries of the Dhangad status - admitting they belonged to the Dhangar community, not Dhangad community, and caste certificates were wrongly issued to their ancestors.

However, the court pointed out several loopholes in Khillare's affidavit and held the Dhangad community was not a zero-member or non-existent community when it was added to the list of ST through presidential orders in the 1950s.

“All we are told by the 3^rd generation Khillares that the 1^st and 2^nd generation Khillares were under some wrong belief. We do not know how a grandson can say that his grandfather was under a mistaken belief about an entry he made in his school leaving certificate.”

Citing Articles 341 and 342 of the Constitution, which authorise the President to declare certain castes and classes as Scheduled Castes in a state, the court held that the President's Orders are sacrosanct and can be altered only by the parliament.

Based on the 1964 Supreme Court decision in B Basavalingappa v. D Munichinnappa – the court held that it is only when an entry in the PO turns out to be a zero-member community or non-existent, can a constitutional court analyse the issue to realise the true intent behind the Presidential Order entry.

Bombay HC Raises Alarm Over Insufficient Police Escort For Prisoners' Medical Visits, Urges Immediate State Action To Ease Prisoners' Difficulties

Case Title: Suhas Dashrath Jagtap v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 91

The Bombay High Court highlighted the problem of insufficient police escort for prisoners requiring visits to hospitals for urgent medical treatment and directed the state to appoint responsible officers to ensure that adequate escort is provided to prisoners in all such cases.

A division bench of Justice Sarang V Kotwal and Justice Shivkumar Dige observed that the lack of police escorts causes problems in providing essential medical services to prisoners and also results in prisoners not being brought to courts for hearings, leading to delays in trial. Court held:

“This is an extremely serious issue, which the authorities will have to address not only on the priority basis, but on the emergency basis. It is also necessary that some responsible officer is made accountable and responsible for providing the adequate escorts in all such cases. Sufficient number of escorts must be available throughout the State, so that these difficulties are not faced by the prisoners, the hospitals and the Trial Courts. The concerned officers will have to give priority to the cases where the prisoners facing medical emergency need to be taken to the hospital immediately.”

For compliance and necessary action, the court sent this order to the Secretary, Home Department – Government of Maharashtra, IG Prison, all Commissioners of Police in Maharashtra, all Superintendents of Police of all the Districts in Maharashtra, all the Principal District Judges in Maharashtra, as well as the Director General of Police, Maharashtra.

Apathy Towards Child Protection Can Perpetuate Cycles Of Abuse: Bombay High Court Orders State To Fill Vacancies In Child Welfare Institutions

Case Title: Bachpan Bachao Andolan and Anr. v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 92

Warning that neglect in safeguarding the rights and well-being of children could perpetuate cycles of abuse and hinder educational opportunities, the Bombay High Court directed the State government to fill vacancies in various child welfare institutions within three months. This includes posts in the Maharashtra State Commission for Protection of Child Rights, State Child Protection Society, District Child Protection Units, Juvenile Justice Board, Child Welfare Committees, and District Protection Officers and Probation Officers.

A division bench of Justice Nitin Jamdar and Justice MM Sathaye issued a set of directions to address the deficiencies in child welfare institutions across Maharashtra observing –

“All these shortfalls pose a serious threat to the well-being of children, undermining their rights and leaving them vulnerable to exploitation and neglect. The lives of countless children are at stake and apathy towards child protection can perpetuate cycles of abuse, hinder educational opportunities, and jeopardize the overall well-being of the future generation. Thus urgent action is required to rectify the deficiencies in the implementation of child protection measures in Maharashtra.”

Bombay HC Quashes Case Against Ex-MLC Over Rs 4.75 Lakh Cash Found In Car During 2014 Election Campaign, Criticizes Police For 'Uncalled Report'

Case Title: Sagar D. Meghe v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 93

The Nagpur bench of Bombay High Court quashed a criminal case registered against former MLC Sagar Meghe after Rs. 4.75 lakh cash was found in a vehicle during his campaign for the 2014 parliamentary election.

A division bench of Justice Vinay Joshi and Justice Vrushali V Joshi allowed Meghe's application for quashing of the charge-sheet against him for offences under Sections 171-H (Illegal payments in connection with an election) and 188 (disobedience to order duly promulgated by public servant) of IPC, and Section 123 of the Representation of the People Act, 1950.

“the learned Counsel for the applicant has produced a copy of Government of India Notification dated 28.02.2014 to impress that for contesting election for parliamentary constituency, the maximum limit for election expenses in the State of Maharashtra is of Rs.70 lakhs. In that context, mere finding of cash amount to the tune of Rs.4.75 lakh cannot be construed as an offence under either of the statute. It is also submitted that there is no declaration that said vehicle was used for election campaign”, the court observed.

The court criticized the careless attitude of the police in invoking Sections against Meghe that do not apply at all and emphasized the importance of verifying charge-sheets before filing them in court.

Exercise Of The Right To Remain Silent Cannot Be Equated With Non-Cooperation: Bombay High Court

Case Title: Chanda Kochhar v. Central Bureau of Investigation

Citation: 2024 LiveLaw (Bom) 94

In a detailed order declaring the arrest of former ICICI bank CEO and MD Chanda Kochhar and her husband Deepak Kochhar by CBI “illegal,” the Bombay High Court called the investigating agencies acts an “abuse of power.”

The division bench of Justices Anuja Parbhudessai and NR Borkar observed: “Such routine arrest without application of mind and due regard to the law amounts to an abuse of power and does not satisfy the requirement of Section 41A(3) CrPC.”

The bench agreed with the observations of the coordinate bench while granting them interim bail. It opined that the involvement of bank official in the conspiracy was not discovered during the course of investigation but was known to the agency at the time of registration of FIR in 2019 despite which the CBI didn't find the need to arrest duo for three years.

The court opined that while an investigating agency can interrogate an accused, the accused has a right to remain silent. “The right to silence emanates from Article 20(3) of the Indian Constitution, which gives an accused the right against self incrimination. Suffice it to say that exercise of the right to remain silent cannot be equated with non co-operation,” it held.

Bombay High Court Grants Bail To Gokulnath Shetty, Prime Accused In PNB Fraud Case Citing Long Incarceration

Case Title: Gokulnath Raghu Shetty v. Central Bureau of Investigation

Citation: 2024 LiveLaw (Bom) 95

The Bombay High Court granted bail to Gokulnath Raghu Shetty, prime accused in the Punjab National Bank (PNB) fraud case involving over Rs 7,000 crore.

Justice M.S. Karnik expressed concerns over the prolonged incarceration of the applicant for nearly six years without the trial commencing.

“The reason why I am inclined to enlarge the applicant on bail is only on the ground of long incarceration. The applicant was arrested on 06.03.2018 and is now in custody almost for six years. The charge has not been framed so far. There are around hundred witnesses to be examined. The trial is not likely to conclude any time soon. The applicant is 65 years of age.”

The case pertains the fraud by diamond merchants Mehul Choksi and his nephew Nirav Modi, among others, by obtaining fraudulent Letters of Undertaking (LoUs) from PNB in connivance with certain bank officials.

Change Of Opinion Does Not Constitute Justification For Assuming Income Chargeable To Tax: Bombay High Court

Case Title: Mira Bhavin Mehta v. Income Tax Officer

Citation: 2024 LiveLaw (Bom) 96

The Bombay High Court held that the reopening of the assessment was purely on the basis of a change of opinion of the AO from that held earlier during the course of assessment proceedings. The change of opinion does not constitute justification for assuming that income chargeable to tax has escaped assessment.

The bench of Justice K. R. Shriram and Justice Dr. Neela Gokhale observed that the AO in the assessment order has noted that the issue of investment in immovable property and capital gain/income on sale of property was considered under limited scrutiny assessment, and in view of the material on record, no addition on the issue is made. The information relied upon while issuing notice under Section 148A(b) relates to the flat, and an entirely contradictory view is taken in the order that the asset sold was a short-term capital asset and the gain arising on the transfer of the said flat is a short-term capital gain.

Maratha Judicial Services Candidates Who Converted To EWS Category Ineligible For Age Relaxation Meant For Backward Classes: Bombay High Court

Case Title: Ashwini Sanjay Kale and Ors v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 97

The Bombay High Court held that age relaxation in judicial services granted to backward-class candidates would not apply to Maratha candidates who had initially applied under the SEBC category and were converted to EWS after the Apex Court struck down the SEBC Act.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain dismissed a writ petition filed by four Maratha candidates belonging to the Economically Weaker Section (EWS) seeking age relaxation under the Maharashtra Judicial Services Rules, 2008 (2008 Rules). It said:

“The contention of the petitioners that since they belong to economically weaker section, the phrase “backward” used in proviso to Rule 5(3)(c) would include candidates belonging to economically weaker section is required to be rejected. The petitioners had made an application under the SEBC Act which was struck down by the Supreme Court...Therefore, the community notified under the said Act would not be treated as backward class since the said Act does not exit”, the court observed.

Interest Paid On Loan Taken To Invest In Shares Of Subsidiary In Normal Course Of Business Activities Is Allowable Expenditure: Bombay High Court

Case Title: Principal Commissioner of Income Tax v. Videocon Industries Ltd. & Anr.

Citation: 2024 LiveLaw (Bom) 98

The Bombay High Court held that if an assessee for commercial expediency and in the normal course of its business activities takes loan to invest in shares of its subsidiary, the interest paid on these advances utilised is allowable expenditure under Section 36(1)(iii) of the Income Tax Act.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that assessee had an aggregate shareholding of 64% in the subsidiary and, therefore, it cannot be contended that share application money made is not for business purpose.

Democratically Elected Candidates Cannot Be Disqualified Over Small Delay In Submitting Election Expense Affidavits: Bombay High Court

Case Title: Dr. Ramnath Govind Kadam and Ors. v. Mangal Bhausaheb Kadam and Ors.

Citation: 2024 LiveLaw (Bom) 99

The Bombay High Court observed that politicians appear to have diverted from their primary responsibility to ensure public administration is conducted impartially and have forgotten that good politicians are supposed to make the commoners' life easy and comfortable.

Justice SG Mehare of the Aurangabad Bench dismissed a writ petition filed by a doctor and other village residents challenging the election of Village Panchayat members who submitted affidavits of their election expenses with a slight delay due to health reasons.

The court pointed out that the doctor, a candidate who did not get elected, diverted time and resources into litigation instead of social work.

The court said that the delay was essentially of only one day, as the other days were holidays and the affidavits were submitted as soon as the office reopened, and it could not be said to be deliberate. Finding the respondents' reasons plausible, the court concluded, “The candidates who were democratically elected could not be sent back for such a small delay, which was beyond their control.”

Pecuniary Jurisdiction Determined By Valuation Disclosed In Plaint, Not Potential Award If Suit Decreed In Plaintiff's Favour: Bombay High Court

Case Title: Rabo Bank v. State Bank of India

Citation: 2024 LiveLaw (Bom) 100

The Bombay High Court clarified that the pecuniary jurisdiction of a court over a suit is determined based on the valuation of the suit as disclosed in the plaint and not on the value of the potential final relief granted in case the suit is decreed in the plaintiff's favor.

Justice Abhay Ahuja ordered the expeditious transfer of a 2001 commercial summary suit to the Bombay City Civil Court due to that court's enhanced pecuniary jurisdiction observing that the interest amount not specifically stated in the plaint cannot be included in the valuation, since it is not yet determined. It said:

“Until and unless the suit is heard and decreed, the amount of interest is undetermined. What the learned senior counsel for the Plaintiff is proposing is to value the suit on the decretal amount assuming a decree being passed in the Plaintiff's favour. In my view, that cannot be permitted being contrary to the settled principle that the pecuniary jurisdiction of the Court depends on the valuation of the Suit as disclosed in the plaint and not on the valuation of the ultimate relief as granted by the decree. There cannot be a pre-emptive valuation prior to a decree only for the purposes of retaining the matter in this Court.”

LOCs Issued Against Rhea Chakraborty And Family Members Without Disclosing Reason, Decision Not Reviewed As Per Guidelines: Bombay High Court

Case Title: Showik Indrajit Chakraborty v. Addl. Superintendent of Police

Citation: 2024 LiveLaw (Bom) 101

The LOCs issued against Rhea Chakraborty and her entire family in August 2020 after the death of actor Sushant Singh Rajput did not state any 'reasons' for issuance of the same and neither were the LOCs reviewed as mandated under the Consolidated Guidelines, the Bombay High Court observed.

The LOCs were issued against Rhea, her brother Showik, her father Lt. Colonel Indrajit Chakraborty, an army veteran, and her mother – Sandhya – who worked as a teacher in army schools. The LOCs were issued against them after Rajput's family filed an FIR to investigate his death in Patna and the matter was subsequently transferred to the CBI.

A division bench of Justices Revati Mohite Dere and Manjusha Deshpande observed while quashing the LOCs on Thursday, “LOCs cannot be issued as a matter of course, but only when there is/are reason/(s) to issue the same i.e. when a person deliberately evades arrest or does not appear in the trial Court or for any other reason.”

Education Has Become Unaffordable, State Has Constitutional Responsibility To Ensure Quality Education Reaches All Citizens: Bombay High Court

Case Title: M/s. Jagruti Foundation, Pune v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 102

The Bombay High Court observed that education has become unaffordable, and the State has a Constitutional responsibility to ensure quality education reaches all the citizens of this country in order to achieve the growth and development of humanity.

“Although “education” is a pious in our culture but with change in time it has taken a different colour and has become unaffordable. It is the State's Constitutional responsibility to ensure quality education reaches all the citizens of this country to achieve the growth and development of humanity”, the court said.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain opined that granting Letter of Intent (LoI) for establishing new colleges in the State only to institutions with prior experience in education could lead to a monopolistic situation, hindering the entry of new institutions.

However, experience in running educational institutions is crucial to assess their capability to establish new ones, the court said, adding that it is essential to strike a balance to ensure a level playing field.

The court suggested, “there should be fixed parameters based on the report of the University on the basis of which the Applicants are considered for grant of Letter of Intent. One way could be granting certain points for each of the parameters and thereafter aggregating the same to come to a conclusion that a particular Institution is eligible for grant of Letter of Intent.”

Bombay High Court Bars Eviction Notices For Weekends, Says Human Beings Are Not Pieces Of Chess Board Who Can Be Moved Around

Case Title: Jijaba Dashrath Shinde v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 103

Bombay High Court asked statutory authorities to ensure they don't serve eviction notices expiring on weekends so that affected can approach the competent authority or High Court for relief as the case may be.

“These are human beings. They have families. They are not pieces on some chess board that can be moved around or even swept of the board. The last thing we want to hear is that once money is flung at these persons their concerns and their very humanity are immaterial.”

A division bench comprising Justices GS Patel and Kamal Khatta passed the order in urgent petitions moved by former slum dwellers who were asked to vacate their accommodations of 20 years in just seven days.

A High Court bench was specially constituted to hear the occupants on Saturday as the Slum Rehabilitation Authority's Apex Grievance Redressal Committee was unavailable.

“We now propose to take the liberty of issuing a direction applicable to all authorities everywhere that no notices for eviction are to be given mentioning only hours. A specific date must be mentioned and that date cannot be over a weekend when Courts are unavailable to the affected persons.”

Minority Institution Receiving State Government Aid Cannot Deny Compassionate Appointment To An Applicant E ligible Under State Government Scheme : B ombay High Court

Case Title: Rahul S/o Dhondiram Meshram v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 104

The Nagpur Bench of the Bombay High Court imposed Rs 25000 costs on Amravati's Holy Cross Convent English High School for denying a compassionate appointment to a man on the ground that the school has adopted a policy not to hire male peons.

“We are sensitive to the fact that the said respondent is running a School, mainly for the girls, however the said act of the respondent of managing the School for the girls by itself will not give it privileges to deny employment by adopting the gender-bias approach...the stand taken by the respondent Nos.3 and 4 (school and the society managing it) that they are not granting compassionate appointment to a male member, in our opinion, also can be said to be violation of Articles 14 and 16 of the Constitution of India”, the court observed.

A division bench of Justice Nitin W Sambre and Justice Abhay J Mantri further held that a Minority Institution receiving aid from the state government cannot deny compassionate appointment to an applicant who is otherwise eligible as per the state government's scheme.

“Merely because the respondent No.3 is a Minority Institution, that by itself will not given it privileges to refuse the employment on compassionate ground, particularly when the petitioner is satisfying all the requisite criteria as per the scheme framed by the State Government, from whom the respondent No.3-Institution is receiving the grant-in-aid”, the court observed.

Bombay High Court Cancels Bail Granted By Sessions Court To Man Accused Of Defaming Minor Girl With Obscene Photos

Case Title: Prashant @ Sonya Ramesh Sabale v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 105

The Bombay High Court cancelled the bail granted by Sessions Court to a man accused of extorting and defaming a child with obscene photos after finding that he had obtained bail from sessions court during the pendency of his bail application before the HC.

Justice PK Chavan noted that in the accused obtained bail from Sessions Court, Pune despite claiming in his bail application before HC that no case for bail was pending in any other court.

“Indubitably, this Court has been misled which is a serious thing which also amounts to interference in the judicial process and, therefore, bail granted by the Additional Sessions Judge, Pune on 10th June, 2022 to the applicant in Special Case No.273 of 2022 is cancelled”, the court observed.

The man is booked for offenses punishable under sections 354-D, 500, and 509 of the IPC and Sections 8, 12, 14, and 15 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, as well as Section 65-B of the Information Technology Act.

Bombay High Court Declines Application For Increasing Valuation Of Suit, Says Pecuniary Jurisdiction Lies With City Civil Court

Case Title: Grand Paradi Co-operative Housing Society Ltd. & Ors. v. Mont Blanc Properties & Industries Pvt. Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 106

The Bombay High Court held that it cannot entertain an application for increasing the valuation of a suit over which it has already lost jurisdiction due to an increase in pecuniary jurisdiction of the Mumbai City Civil Court and the consequent transfer of cases from HC to that court.

It further held that allowing a court to decide an application in any suit that was already transferred to another court would set a dangerous trend.

Justice Sandeep V Marne refused to entertain an application for amendment of a plaint to increase its valuation. The Bombay City Civil Court (Amendment) Act, 2023, had caused the suit to be transferred to the City Civil Court due to its increased pecuniary jurisdiction.

Medical Negligence: Bombay High Court Upholds Doctor's Conviction For Patient's Death 40 Yrs Ago

Case Title: State of Maharashtra v. Dr. Anil Pinto

Citation: 2024 LiveLaw (Bom) 107

The Bombay High Court upheld the conviction of a septuagenarian doctor for his negligence by not taking immediate steps to deal with a complication during a surgery, leading to the death of a patient in 1984.

Justice Bharati Dangre increased the fine imposed on Dr. Anil Pinto from Rs. 5,000 to Rs. 5 lakh. Out of this sum, Rs. 4.9 lakh is directed to be paid to the family of the victim.

“An error of judgment on part of the professional is also not negligence per se, but when an expert surgeon like Dr. Pinto leave the patient waiting, with a spasm of a vital artery and which subsequently resulted in formation of clots, definitely amounts to negligence. The most relevant period of 12 hours was allowed to pass with no serious steps being taken, with a just wait and watch policy adopted by him”, the court observed.

Share Premium Received By Issuance Of Shares Is On Capital Account And Gives Rise To No Income: Bombay High Court

Case Title: Shendra Advisory Services P. Ltd. v. Deputy Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 108

The Bombay High Court held that the share premium received by the issuance of shares is on the capital account and gives rise to no income.

The bench of Justice KR Shriram and Justice Dr. Neela Gokhale observed that even if the assessee had violated the provisions of the Companies Act, 1956, it would be penalized by the provisions of that Act, and it would never turn a capital receipt into a revenue receipt or vice versa. There is nothing on record from the balance sheet filed indicating that the share premium amount has been utilized for purposes other than what is prescribed in Section 78(2) of the Companies Act, 1956.

S.125(3) CrPC | Magistrate Can't Order Imprisonment For More Than 12 Months' Default In Maintenance In A Single Application: Bombay High Court

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 109

The Bombay High Court ordered the release of a man sentenced to simple imprisonment of 47 months for of default in payment of interim maintenance awarded to his wife and daughter in a domestic violence case.

Justice Sharmila U Deshmukh observed that under section 125(3) CrPC, the power of the Magistrate to impose punishment of imprisonment for default is restricted to 12 months, as the proviso provides a limitation period of 12 months from the due date of payment.

“by limiting the application for issuance of warrant to a period of 12 months, the power of the Magistrate stands restricted to impose maximum punishment of imprisonment for period 12 months. If an application cannot be filed seeking warrant for recovery of amount remaining unpaid for period of more than one year, there is no question of imprisonment being imposed for a term exceeding one year. The period of 12 months is the outer limit”, the court observed.

The court clarified that while only 12 previous months of defaults can be clubbed in one application, imprisonment can be imposed for subsequent defaults in subsequent applications.

High Court Asks Maharashtra Govt To Consider 26/11 Mumbai-Terror Attack Victim's Plea For EWS Housing

Case Title: Devika Natvarlal Rotawan v. State of Maharashtra and Ors

Citation: 2024 LiveLaw (Bom) 110

The Bombay High Court directed the Housing Minister of the Maharashtra Government to consider 26/11 Mumbai Terror Attack victim - Devika Rotawan's - plea for a residential premises in the economically weaker section (EWS).

A division bench of Justices GS Kulkarni and Firdosh Pooniwala called it a “real case” to exercise discretion. Especially when discretion is often exercised in lesser deserving cases, it remarked.

“In our opinion, these are the real cases where authorities need to exercise discretion appropriately which is otherwise routinely exercised in cases found to not at par with a case as the present case. We limit ourselves to direct the minister to take appropriate decision.”

The bench was irked by the mechanical manner in which the Secretary of the housing department said in his noting that such a request could not be considered even without filing an affidavit in the matter.

Minor Mistakes Due To Disability Should Not Lead To Serious Consequences Such As Loss Of Job Opportunity: Bombay High Court

Case Title: Shanta Digambar Sonawane v. Union of India and Anr.

Citation: 2024 LiveLaw (Bom) 111

The Bombay High Court held that refusing to remedy errors stemming from candidates' disability contravenes the principle of equality, and employers should ensure that such minor mistakes do not lead to loss of the job opportunity itself.

A division bench of Justice Nitin Jamdar and Justice MM Sathaye set aside the cancellation of candidature to a post in the Railways of a 31-year-old blind woman, who inadvertently entered the wrong birth year in her application.

“Visually impaired individuals may make mistakes, such as typing errors, due to their impairment or may need to rely on others. These errors, stemming from their disability, should not result in discrimination or unfair treatment by employers. Rejecting the applications and then refusing to remedy the mistakes even within a reasonable time solely because of these errors, would contravene the principle of equality”, the court held.

The court further observed that legislation for the disabled should not merely remain in the statute book, and reasonable accommodations tailored to the specific needs of disabled individuals should be made to procedures.

Person Seeking Letters Of Administration Must Personally Serve Notice At Last Known Address Of Legal Heir With Unknown Whereabouts: Bombay High Court

Case Title: Lata Rajesh Shetty @ Latha Rajesh Shetty v. Satish Surappa Poojari

Citation: 2024 LiveLaw (Bom) 112

The Bombay High Court observed that a person seeking Letters of Administration (LoA) with Will Annexed must personally serve the citation (notice of the application) to the last known address of a legal heir whose whereabouts are unknown.

Justice Manish Pitale revoked the LoA granted to a person who had directly published the citation in newspapers without personally serving the citation on the ground that whereabouts of the concerned legal heir were unknown.

“By simply stating that the whereabouts of the person are not known, the petitioner in the said testamentary petition cannot be permitted to bypass the mandatory requirement of Rule 399 of the said Rules [Bombay High Court (Original Side) Rules] to personally serve the citation. The use of the words “when possible” have to be interpreted to mean that citations are mandatorily required to be served on at least the last known address of the person cited as a legal heir of the deceased”, the court observed.

Public Perception Cannot Be A Ground For Staying The Release Of The Docuseries On Indrani Mukerjea: Bombay High Court

Case Title: Central Bureau of Investigation v. Netflix Entertainment Services India LLP

Citation: 2024 LiveLaw (Bom) 113

The Bombay High Court dismissed a petition filed by CBI seeking to stay the release of the Netflix docuseries – “Buried Truth – The Indrani Mukerjea Story.”

The docuseries features accused Indrani Mukerjea and five other witnesses cited by the CBI in the Sheena Bora murder trial. Mukerjea is the prime accused in her daughter - Sheena's – murder.

The judges agreed to watch the series themselves.

The court stated that public perception cannot be a ground for staying the release of the docuseries. The court found nothing in the docuseries prejudicial to the prosecution or the witnesses yet to be examined. The court noted that there are already movies and books in the public domain about the Sheena Bora case, and the docuseries is based on information that is already publicly available.

Storage Tanks Does Not Qualify Either As Land Or As Building, TDS Deductible On Storage Charges: Bombay High Court

Case Title: The Commissioner of Income Tax (TDS) v. M/s. B. Arunkumar Trading Ltd

Citation: 2024 LiveLaw (Bom) 114

The Bombay High Court held that the respondent (assessee) ought to have deducted tax under Section 194I of the Income Tax Act, 1961, from the storage charges paid by the assessee.

The bench of Justice KR Shriram and Justice Sharmila U Deshmukh observed that the storage tanks in question do not qualify either as land or as buildings within the meaning of Section 194I. In terms of Section 194I, there has to be a lease, sub-lease, tenancy, or any other agreement involving land or any building, excluding factory buildings.

Deficiency In Filing Appeal Can't Make Appeal Filed Within Prescribed Period Of Limitation To Be Labelled As Time Barred: Bombay High Court

Case Title: Yogesh Rajendra Mehra v. Principal Commissioner CGST & Central Excise Raigad

Citation: 2024 LiveLaw (Bom) 115

The Bombay High Court held that any deficiency in filing the appeal or application, like failure to file physical documents, cannot cause the appeal, which was registered on the online portal within the prescribed period of limitation, to be labelled and/or held to be barred by limitation.

The bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla observed that once the appeal was filed (albeit under the online method) within the prescribed limitation, any deficiency in the appeal certainly could be removed later on, as the law does not provide that the proceeding be strictly filed sans deficiency, and only then would the proceedings be held to be validly filed. The bench stated that if such a proposition were to be recognized as the correct position, it would not only tantamount to a patent absurdity but also result in a gross injustice, prejudicially affecting the legitimate rights of persons to a legal remedy (access to justice). Thus, the parties would necessarily have an opportunity to remove the deficiencies, if any, that may prevail at the time of filing the proceedings after the proceedings are filed.

Bombay High Court Refuses To Quash Land Deal Related Corruption FIR Against NCP Leader Eknath Khadse, Wife

Case Title: Eknath Ganpatrao Khadse and Ors. v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 116

The Bombay High Court refused to quash a 2017 corruption case related to a land deal against former Maharashtra revenue minister and Nationalist Congress Party (NCP) MLC Eknath Khadse, his wife, and son-in-law.

A division bench of Justice Nitin W Sambre and Justice NR Borkar held that applicability of Section 17A of the Prevention of Corruption Act, requiring prior sanction before conducting enquiry into a public servant, will have to be considered at an appropriate stage as the offence was registered before Section 17A came into force.

“it is a premature stage to consider the claim of the petitioner no.1 (Khadse) for the protection under Section 17A of the Act of 1988. Even otherwise, it cannot be said at this stage that the blanket protection can be enjoyed by the petitioners by taking shelter to Section 17A of the Act of 1988 particularly having regard to the nature of the allegations against the petitioner no.1”, the court further observed.

Bombay High Court Quashes Reassessment Notices Issued Against Godrej For Beyond Limitation Period

Case Title: Godrej Industries Ltd. v. The Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 117

The Bombay High Court quashed the reassessment notices issued against Godrej because the notice was issued beyond the limitation period.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the validity of a notice must be judged on the basis of the law existing as on the date on which the notice is issued under Section 148 of the Income Tax Act, which in the present case is July 31, 2022, by which time the Finance Act, 2021, is already on the statute, and in terms, no notice under Section 148 for AY 2014–15 could be issued on or after April 1, 2021, based on the first proviso to Section 149. Therefore, the fifth proviso cannot apply in a case where the first proviso applies because, if a notice under Section 148 could not be issued beyond the time period provided in the first proviso, then the fifth proviso could not save the notices. The fifth proviso can only apply where one has to determine whether the time limit of three years and ten years in Section 149(1) is breached.

The bench, while distinguishing the judgment passed by the Supreme Court in the case of Ashish Agarwal, noted that it only deemed the first notice issued under Section 148 to be a show cause notice under Section 148A(b) and left all defenses available to the assessee under Section 149. The bench noted that the Supreme Court in Ashish Agarwal did not grant any stay, and the period from May 21, 2021, until the notice under Section 148A(b) is issued cannot be excluded under the second limb of the fifth proviso or even under the first limb.

March

Application For Enhancing Electricity Load Doesn't Constitute Intimating Supplier About Change In Class Of Usage: Bombay High Court

Case Title: Maharashtra State Electricity Distribution Company Ltd. v. Ramchandra s/o. Madhavrao Naik and Anr.

Citation: 2024 LiveLaw (Bom) 118

The Aurangabad Bench of the Bombay High Court held that an electricity consumer's application for load enhancement of electricity does not constitute intimation to the electricity supplier of change in the class of electricity usage.

Justice SG Mehare restored a bill of over Rs. 23 lakhs levied on a landlord and tenant for unauthorized usage by MSEDCL after it found that the use of the concerned premises was changed from operating a printing press (industrial use) to running a coaching class (commercial use).

“Enhancing the load and changing the user of the electricity supply from one class to another class are apparently distinct. The load may be enhanced for any class of user of electricity for the purpose for which it was supplied. The consumer is bound to inform the supplier about any change in the class/tariff”, the court observed.

The court held that usage of electricity for a purpose other than for which it was supplied as per demand is unauthorized usage.

Bombay High Court Issues Contempt Notices To Lilavati Hospital's Founder Trustee & Son On HDFC's Plea

Case Title: HDFC Bank Limited v. Kishore K. Mehta and Anr.

Citation: 2024 LiveLaw (Bom) 119

The Bombay High Court issued contempt notices against the founder trustee of Lilavati Hospital – octogenarian Kishore Mehta and his son Rajesh for alleged breach of undertakings given to the court and for allegedly failing to deposit 25% of debt amount, in proceedings filed by HDFC Bank.

HDFC claimed the respondents had deposited only Rs 3.68 crore whereas they were supposed to deposit 25% of Rs. 14.74 crore with 16% interest from 2004.

Justice AS Chandurkar and Justice Jitendra Jain noted that the duo avoided execution of the arrest warrant and automatic dismissal of their appeal, by affirming payment of amount. “The aforesaid reasons are prima facie sufficient for the Court to proceed in accordance with Rule 1036 of the Contempt of Courts (Bombay High Court) Rules, 1994.”

Unfortunate That 'Tantrics /Babas' Take Advantage Of Vulnerability & Blind Faith: Bombay HC Upholds Man's Life Term For Rape Of 6 Minor Girls

Case Title: Mehandi Kasim Jenul Abidin Shaikh @ Mehandi Kasam Shaikh @Bangali Baba v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 120

The Bombay High Court confirmed the conviction and life sentence of a man claiming to be a tantric who raped and sexually exploited seven girls, six of them minors, for over five years under the pretext of curing them from begetting intellectually challenged male children.

A division bench of Justice Revati Mohite Dere and Justice Manjusha Deshpande dismissed the appeal filed by one Mehandi Kasim Jenul Abidin Shaikh, alias Bangali Baba, against conviction by the sessions court in April 2016 observing –

“It is an unfortunate reality of our times, that people, at times knock on the doors of so called tantrics/babas, for a solution to their problems and that these so called tantrics/babas, take advantage of the vulnerability and blind faith of these people and exploit them. The so called, tantrics/babas not only exploit their vulnerability, by extracting money from them, but also many a times, sexually assault the victims, under the guise of providing solutions…The appellant took full advantage of the apprehension of the victims mothers and by manipulating their fears, assured to cure the girls and in the process, also financially exploited them.”

No Evidence To Connect Accused To Terr o r i st Act; Trial Failure Of Justice: Bombay High Court Acquits GN Saibaba

Case Title: G.N. Saibaba v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 121

The Bombay High Court held that the trial of former Delhi University Professor GN Saibaba and others was held despite violation of mandatory provisions of the Unlawful Activities Prevention Act (UAPA) pertaining to arrest, search and seizure, and sanction to prosecute.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes, while acquitting GN Saibaba and others in an alleged Maoist-links case, observed that the trial, held without mandatory compliance, amounts to a failure of justice.

“There is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void. There is non-compliance of the provisions of Sections 43-A and 43-B of the UAPA pertaining to arrest, search and seizure. Statutory presumption under section 43- E of the UAPA would not apply for the offences charged. We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice.”

The Court also observed, "No evidence has been led by the prosecution by any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act, either by participating in its preparation or its direction or in any manner providing support to its commission."

Mere Failure To Perform Contract Does Not Amount To Cheating: Bombay High Court Grants Bail To Man Accused Of Cheating Actor Vivek Oberoi

Case Title: Sanjay Pran Gopal Saha v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 122

The Bombay High Court granted bail to actor Vivek Oberoi's business partner Sanjay Saha arrested in a Rs. 1.55 crore cheating case filed by Oberoi for allegedly siphoning off the funds of their film production firm.

Justice NJ Jamadar held that prima facie, clauses of the partnership agreement supported Saha's contention that the money was used for purposes expressly authorised under the agreement.

“Mr. Ponda, invited the attention of the Court to the clauses in the LLP (Exh.C) especially Clauses 38 (m) and 44 which provide for incurring of expenses for the welfare of the partners and payment of remuneration to the partners. Prima facie, the aforesaid clauses in the partnership agreement support the cause of the submission sought to be advanced on behalf of the applicant”, the court observed.

The court said that the existence of fraudulent or dishonest intention since the inception of the transaction would have to be established at an appropriate stage in the proceedings before the learned Magistrate.

“Mere failure to perform the contract by itself does not amount to cheating. Likewise, the same act or omission may not constitute an offence of cheating and criminal breach of trust, simultaneously”, the court added.

NCLT Has Jurisdiction To Direct ED To Release Attached Properties Of Corporate Debtor: Bombay High Court

Case Title: Shiv Charan v. Adjudicating Authority

Citation: 2024 LiveLaw (Bom) 123

The Bombay High Court held that the NCLT has the jurisdiction to direct the Enforcement Directorate (ED) to release attached properties of a corporate debtor once the resolution plan has been approved and immunity from prosecution is triggered under Section 32A of IBC, 2016.

A division bench of Justice BP Colabawalla and Justice Somasekhar Sundaresan upheld an NCLT order directing the ED to release the properties of a corporate debtor that were attached under the Prevention of Money Laundering Act, 2002 (PMLA).

“Section 60(5) [of IBC] clearly empowers the NCLT to answer the question of whether the statutory immunity under Section 32A has accrued to a corporate debtor. As a consequence, the NCLT is well within its jurisdiction and power to rule that prior attachment of the property of a corporate debtor that is subject matter of an approved resolution plan, must be released, if the jurisdictional facts for purposes of Section 32A exist”, the court held.

TDS Not Liable To Be Deducted On Business Support Services As Not Taxable As FTS: Bombay High Court

Case Title: Shell India Markets Private Limited v. Union of India

Citation: 2024 LiveLaw (Bom) 124

The Bombay High Court held that business support services are not taxable as a fee for technical services (FTS), and no TDS is liable to be deducted.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that even if it is fees for technical or consultancy services, it can be only where fees are paid in consideration for making available technical knowledge, experience, etc. Thus, the view of the AAR that the petitioner, Shell International Petroleum Company Limited (SIPCL), works closely with and advises the employees of the petitioner and hence makes available the services is not correct. The AAR's view, in fact, suffers from fallacy since the agreement continues to operate to date. If the view of AAR is to be held correct, then the contract must be concluded, as once the services and the know-how, skills, etc. are transferred to the petitioner, the need to continue to render services must end.

Actual Agricultural Operation, Not a Necessary Condition To Qualify As Agricultural Land; Bombay High Court

Case Title: Ashok Chaganlal Thakkar v. National Faceless Assessment Centre

Citation: 2024 LiveLaw (Bom) 125

The Bombay High Court held that actual carrying on of agricultural operations is not a necessary condition for deciding that the parcels of land were agricultural lands.

The bench of Justice KR Shriram and Justice Neela Gokhale quashed the order and remanded the matter for passing the fresh assessment order. The AO will only examine whether the evidence brought on record to establish the claim that the lands sold are in the nature of agricultural land is authentic. If the AO has to reject the evidence filed by the petitioner, he shall bring contrary material on record. For that, the AO has to conduct an inquiry to ascertain the authenticity of the certificates filed by the petitioner. The AO may take such steps as required by conducting a necessary inquiry with the concerned government authorities. The contention of the petitioner cannot be rejected purely on the presumption that the lands sold were not agricultural lands because the petitioner sold the parcels of land within two years of purchase.

[MRTU & PULP Act] Working Journalists' Status Distinct From Regular Workmen Due To Special Privileges, Can't Be Considered Employees: Bombay HC

Case Title: Indrakumar Jain v. M/s. Dainik Bhaskar and Ors.

Citation: 2024 LiveLaw (Bom) 126

The Bombay High Court held that working journalists are not employees under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) and therefore, cannot file complaints of unfair labor practices under the said Act.

A division bench of Justice Nitin Jamdar and Justice Sandeep Marne delivered the judgment on a reference by a Single Judge in three writ petitions filed by working journalists and newspapers challenging Industrial Court orders on complaints.

“The working journalists under Section 3 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 are not included in the definition of "employee" under Section 3(5) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Thus, a complaint of unfair labour practice filed by a working journalist under the MRTU and PULP Act is not maintainable”, the court held.

The court said that working journalists have various safeguards under the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (Working Journalists Act) and can avail the machinery for dispute resolution under the Industrial Disputes Act, 1947 (ID Act).

Bombay High Court Sets Aside Police Custody Of NCP Worker Booked For Uploading Video Containing Death Threats To Dy CM Devendra Fadnavis

Case Title: Yogesh Rajendra Sawant v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 127

The Bombay High Court set aside the sessions court order granting police custody of NCP (Sharadchandra Pawar) worker Yogesh Rajendra Sawant arrested for allegedly posting a video containing death threats to Deputy CM Devendra Fadnavis.

Justice RN Laddha allowed Sawant's writ petition against the order of the Additional Sessions Judge as Sawant was already in judicial custody and no notice or hearing was given to him before setting aside the judicial custody.

“When the impugned order was passed, the petitioner was in judicial custody. Despite the possibility of promptly issuing and serving notice to the petitioner, no such notice was issued, and he was not granted an opportunity for a hearing. This omission goes against the fundamental principles of natural justice”, the court observed.

Mere Absence Of Medical Evidence Not Ground To Discard Direct And Ocular Evidence: Bombay High Court

Case Title: Bhaulal S/o. Dokraji Reswal v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 128

The Bombay High Court upheld a man's conviction for raping a six-year-old child under the pretext of exorcising and driving out evil spirit from her. The girl passed away after this incident.

Justice Abhay S Waghwase of the Aurangabad bench observed that there was sufficient eyewitness testimony to establish the rape charge despite there being no medical evidence as her family performed her last rites without medical examination.

“merely absence of medical evidence, is no good ground to discard the direct and ocular evidence of parents coupled with evidence of an independent witness regarding rape. Law does not make it imperative for prosecution to corroborate its case by adducing medical evidence. When direct evidence inspires confidence, case of prosecution can still be accepted. Here is a case of such nature where parents and independent witness, who have seen the incident, have narrated the occurrence while in witness box. Their testimonies have not been rendered doubtful. Hence, even in absence of medical evidence, case of prosecution can safely said to be inspiring confidence and can be readily accepted.”

Bombay High Court Orders State Govt To Immediately Repair Internal Roads Of Mumbai's Aarey Milk Colony

Case Title: Binod Sitaram Agarwal v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 129

The Bombay High Court directed the state government's Department of Agriculture, Animal Husbandry, Dairy and Fisheries Development to immediately initiate the repair or reconstruction of internal roads of the Aarey Milk Colony in Mumbai.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor directed that the authorities “shall be guided by the overwhelming public interest of having proper internal roads in the area as also by the measures to be taken for preserving the wildlife and ecology and accordingly take decision at the earliest.”

The court noted that out of the total 52 kilometres of internal roads in the Sanjay Gandhi National Park Eco-Sensitive Zone (ESZ), 7 kms fall under the jurisdiction of the BMC, while the remaining 45 kms requires attention from the state government's Department of Agriculture.

The court directed a stretch of 8.22 kms out of 45 kms to be closed within 10 days, as alternate routes are available. The repair, reconstruction, and maintenance of the remaining internal roads were directed to be immediately undertaken by the Department of Agriculture, Government of Maharashtra.

“Further Detention Will Frustrate Object Of Article 21”: Bombay HC Grants Bail To Former MD Of IL&FS Hari Sankaran In Fraud Case After Nearly 5 Yrs

Case Title: Hari Sankaran v. Serious Fraud Investigation Office

Citation: 2024 LiveLaw (Bom) 130

The Bombay High Court granted bail to Hari Sankaran (63), prime accused in the high-profile Rs. 94 crore IL&FS alleged fraud case, five years after his arrest.

Sankaran, the former Vice Chairman and Managing Director of IL&FS Financial Services Ltd. (IFIN), was arrested on April 1, 2019, by the Serious Fraud Investigation Office (SFIO) for offenses punishable under Sections 447 of the Companies Act, 2013, and Sections 417, 420 read with 120B of the Indian Penal Code.

The Special Judge rejected his application for bail vide an order dated 3rd October, 2019, following which he approached the High Court.

Justice Prithviraj K. Chavan noted that Sankaran has been suffering from various severe ailments, including cardiovascular diseases, diabetes, and other comorbidities.

The court observed that continuing his detention would increase the risk of cardiac death and frustrate the very object of Article 21 of the Constitution, which guarantees the right to life and personal liberty.

NEET Applications Availing 10% Maratha Quota Subject To HC Orders In Pleas Challenging Maratha Reservation: Bombay High Court

Case Title: Dr. Jaishri Laxmanrao Patil & Ors. v. Chief Minister, State Of Maharashtra & Ors

Citation: 2024 LiveLaw (Bom) 131

The Bombay High Court held that any applications received under the advertisement for NEET exam or similar advertisements availing Maratha quota would be subject to further HC orders on petitions challenging the reservation.

The court directed that the candidates should be informed of the orders passed by it in petitions against the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2024 which grants 10% reservation to the Maratha community in jobs and education.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla said –

"in the meantime it would be in the interest of the justice that, if any applications are received under the advertisement dated 9th February 2024 or any other similar advertisements taking benefit of the impugned Act, the same shall be subject to further orders to be passed on these proceedings, on the adjourned date of hearing."

Bombay High Court: Co-Promoters Are Also Liable To Pay Refund With Interest To Allottees In Case Of Delay Under Section 18 Of The RERA.

Case Title: Wadhwa Group Housing Pvt Ltd v. Vijay Choksi and SSS Escatics Pvt. Ltd

Citation: 2024 LiveLaw (Bom) 132

The Bombay High Court bench, comprising of Justice Sandeep V Marne, held that promoters who are part of a real estate project but haven't received any consideration from the allottee will still be classified as “Promoters” under Section 2(zk). Consequently, they will be liable to refund the amount with interest to the allottees under Section 18 of the Real Estate (Regulation and Development) Act, 2016.

Boyfriend's Family Merely Opposing The Relationship On A Single Occasion Not Sufficient To Attract Offence Of Abetment Of Suicide: Bombay HC

Case Title: Mangal Kashinath Dabhade and Anr. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 133

The Bombay High Court discharged a mother-daughter duo booked in an abetment to suicide case for allegedly opposing the relationship of the son with the deceased due to her caste.

Justice MS Karnik set aside an order of the Additional Sessions Judge rejecting their discharge application observing –

“Amol was in a love relationship with the deceased for a considerable period of time. In the present facts, mere expression of opposition of the applicants to the relationship on one occasion without anything more is not sufficient to attract the ingredients of the alleged offences. In my view, a plain reading of Section 306 of IPC and applying it to the undisputed facts of the present case indicates that none of the ingredients are attracted to the case at hand.”

"Illiterate, Unable To Understand Pleadings": Bombay High Court Allows Pardanashin Woman To Add Facts Omitted Earlier In Written Statement

Case Title: Hasinabi w/o Abdul Latif v. Mohammad Sharif S/o Abdul Rajjak

Citation: 2024 LiveLaw (Bom) 134

The Bombay High Court allowed a pardanashin lady to amend her written statement in a suit against her despite the facts proposed to be introduced via the amendment being already known to her and still not included in the original written statement.

Justice BP Deshpande of the Nagpur Bench set aside appellate court's order rejecting her prayer for amendment, observing that though she knew the facts when she filed the written statement, she did not understand the requirements of pleadings in the written statement.

“the petitioner/defendant being illiterate and pardanashin lady was in fact unable to understand the pleadings in the written statement and therefore, in order to do justice effectively, the proposed amendment which is in the nature of clarification, ought to have been considered by the learned First Appellate Court. However, while taking hyper technical aspect and without considering the status of the defendant, such amendment was rejected”, the court held.

Service Tax Not Liable To Be Paid On Ocean Freight/Sea Transportation Services: Bombay High Court

Case Title: M/s. Sanathan Textile Pvt Ltd. Versus Union of India

Citation: 2024 LiveLaw (Bom) 135

The Bombay High Court held that service tax is not liable to be paid on ocean freight or sea transportation services.

The bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla relied on the decision of the Gujarat High Court in the case of SAL Steel Ltd. vs. . Union of India, in which it was held that no tax is leviable under the Integrated Goods and Services Tax Act, 2007, on the ocean freight for the services provided by a person located in a non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India, and the levy and collection of tax on such ocean freight under the impugned notifications is not permissible in law.

IT Rules Amendment | Prima Facie No Case Made Out For Not Notifying Govt's Fact Check Unit: Bombay High Court Third Judge AS Chandurkar Opines

Case Title: Kunal Kamra v. Union of India with connected cases

Citation: 2024 LiveLaw (Bom) 136

In a setback for the petitioners in the 2023 IT Rules Amendment Case, the third judge—Justice AS Chandurkar—opined that prima facie, no case was made out to direct the Union government to continue its statement and not notify the Fact Check Unit.

Justice Chandurkar ruled that the balance of convenience favours the Union, considering the government's submission about not using the FCU to censor political opinions, satire, and comedy. Additionally, any action taken after notifying the FCU would be subject to the final outcome of the petition and wouldn't cause irreversible damage.

"In my opinion, no case has been made out to direct that the statement made on behalf of the non-applicants that the fact check unit should not be notified should be continued during present proceedings as an order of the court."

The court, however, referred the matter back to the division bench of Justices Gautam Patel and Neela Gokhale for pronouncement of orders on the interim applications filed by petitioners Kunal Kamra and others. They sought to restrain the government from notifying the FCU till Justice Chandurkar's final opinion on the challenge to the 2023 amendment to the IT Rules 2021.

According to the Rules, the government should establish an FCU to identify fake, false, and misleading information about its business on social media.

Bombay High Court Orders Release Of Rape Convict Found To Be Juvenile After 19 Yrs Of Imprisonment

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 137

The Bombay High Court ordered the release of a 36-year-old rape convict after 19 years of imprisonment as he was found to be a juvenile at the time of the offence in 2005.

The man was convicted and sentenced to life imprisonment for raping a three-year-old girl child in the vicinity under the guise of giving her a chocolate.

He filed an interim application for release on the grounds of his juvenility at the time of commission of the said crime. He relied on the School Leaving Certificate issued by the Head Master of a Primary School in Bankati Vasti, Uttar Pradesh.

In July 2022 the High Court directed the State to verify the convict's claim following which the Palghar police conducted an enquiry regarding the accused's school leaving certificate.

“It is categorically stated that, the date of birth of the Petitioner is 16th April, 1988,” the court noted.

“We find substance in the contentions of the learned Advocate for the Applicant/Petitioner. It is an admitted fact that, the Applicant has already undergone more than three years of actual imprisonment. In view thereof, the Applicant/Petitioner is entitled to be released from jail forthwith.”

Maharashtra Prevention Of Gambling Act | ASP Can Raid Suspected Gambling Houses Without Special Authorization From State: Bombay HC Full Bench

Case Title: Maroti s/o Gangaram Nandane & Ors. v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 138

The Aurangabad bench of Bombay High Court held that the Assistant Superintendent of Police (ASP) can conduct raids on suspected gambling houses under the Maharashtra Prevention of Gambling Act, 1887 without being specially authorized by the state government.

A full bench of Justice Mangesh Patil, Justice NB Suryawanshi and Justice RM Joshi stated that high rank officials and Magistrates like District Magistrate, Sub-Divisional Magistrate and Superintendent of Police have been conferred with the powers to conduct a raid under sub-clauses (a) to (d) of section 6(1) of the Act.

It clarified that only when delegating the authority to conduct raids to subordinates, do these high-ranking officials require special empowerment from the State Government.

Exgratia Bonus Paid By Indian Express To Employees Over And Above Eligible Bonus Is Allowable As Business Expenditure: Bombay High Court

Case Title: Indian Express Newspapers (Bombay) Ltd. v. CIT

Citation: 2024 LiveLaw (Bom) 139

The Bombay High Court held that exgratia bonuses paid to employees over and above the eligible bonus under the Payment of Bonus Act are allowable as business expenditures.

The bench of Justice KR Shriram and Justice Dr. Neela Gokhale observed that the ITAT was not right in law in holding that the liability for salary and wages arising out of the Justice Palekar Award is not allowable as expenditure in the present year but only in the year in which the agreement between the management and the employees is entered into.

Application For Compensation To Landlord During Stay On Eviction Decree Can't Be Entertained When Appeal Is Ready For Final Hearing: Bombay HC

Case Title: Brijbhushan Chandrabali Shukla v. Mahendra Yadav S/o Lavjari S. Yadav

Citation: 2024 LiveLaw (Bom) 140

The Bombay High Court held that an application for compensation to a landlord in case of interim stay on eviction decree during appeal cannot be entertained after the appeal is ready for final hearing when both parties were heard at the time of admission of the case.

Justice Rajesh S Patil, while dealing with a tenant's revision application against an eviction decree, dismissed the landlord's interim application seeking monthly compensation of Rs. 70,000 from the tenant.

“Such an application preferred much later for fixing market rent/compensation, after the Appeal is ready for final hearing, would not be entertainable when both the parties were heard at the time of Admission of Appeal and the execution of judgment and decree of eviction was stayed”, the court held.

Bombay High Court Approves Centre's 'Fact Check Unit' for Identifying Fake Social Media Content by 2:1 Majority

Case Title: Kunal Kamra v. Union of India

Citation: 2024 LiveLaw (Bom) 141

By a 2:1 majority and in a setback for the petitioners in the 2023 IT Rules Amendment Case, the Bombay High Court, in an interim order, refused to restrain the Union government from notifying its Fact Check Unit.

Rule 3(1)(b)(v) of the IT Rules amendment 2023 empowers the government to establish a Fact check Unit and unilaterally declare online content related to the government's business on social media platforms as fake, false or misleading.

The social media intermediary then either has to remove the information or be ready to defend its actions in court if the need arises.

The reconstituted bench of Justices GS Patel and Neela Gokhale pronounced the interim order after the third judge, Justice Chandurkar, opined that no case was made out for interim relief until he decides the clutch of petitions.

"The third judge has rendered his opinion. Consequently, the majority view is that the interim applications for stay and continuation of the previous statement (by the Union not to notify the FCU) are rejected," the order said.

Harshad Mehta Scam: AO Can't Assess Additions Again If Deleted By CIT(A) In First Round Of Proceedings; Bombay High Court

Case Title: CCIT(OSD)/Pr. Commissioner of Income Tax, Central v. Bhupendra Champaklal Dalal

Citation: 2024 LiveLaw (Bom) 142

The Bombay High Court in the Harshad Mehta Scam case, while upholding the ITAT's ruling, held that the Assessing Officer could not have assessed additions again since the CIT (A) had deleted the same in the first round of proceedings and the concerned matters have attained finality.

The bench of Justice KR Shriram and Justice Dr. Neela Gokhale observed that various types of additions aggregating to the amount were made by the Assessing Officer in the original assessment proceedings, and in the appeal filed by the assessee, the CIT(A) deleted these additions. The Revenue did not prefer an appeal challenging the order of the CIT (A), and hence, the same has attained finality.

SC/ST Act Proceedings Even If Held In Open Court Must Be Video Recorded: Bombay High Court

Case Title: Dr. Hema Suresh Ahuja and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 143

The Bombay High Court clarified that it is mandatory to video record all proceedings, including bail proceedings, in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Sarang V Kotwal court answered a reference by a single judge bench holding that the proceedings must be video recorded even if they are held in open court.

“It would be necessary to video record any proceeding relating to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 even though the proceedings are held in open court...Hearing of a bail application under section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 is a 'judicial proceeding' as contemplated under section 15-A of the Atrocities Act.”

"Unbecoming Conduct": Bombay HC Upholds Action Against CISF Constable Who Knocked On Female Neighbour's Door After Consuming Alcohol, To Ask For 'Lemon' In Her Husband's Absence

Case Title: Arvind Kumar v. Laxmi Sanjay Nikam

Citation: 2024 LiveLaw (Bom) 144

The Bombay High Court upheld the disciplinary action taken against a Central Industrial Security Force (CISF) constable for knocking on the door of a female colleague's quarters late at night for lime, terming his conduct as "unbecoming of a government servant."

The court rejected the constable's claim that the actions were not in the course of duty and therefore, the incident does not amount to misconduct under Rule 1.3(1) of the Central Civil Service (Conduct) Rules, 1964.

A division bench of Justices Nitin Jamdar and MM Sathaye dismissed the writ petition filed by Arvind Kumar, a CISF constable, challenging the orders imposing a penalty of reduction in pay for his “misconduct.”

Information Commissioner Can Direct Public Trust Receiving State Grants To Provide Info Pertaining To Its Educational Institutions Under The RTI Act: Bombay High Court Full Bench

Case Title: People Welfare Society v. State Information Commissioner and Ors.

Citation: 2024 LiveLaw (Bom) 145

The full bench of the Bombay High Court at Nagpur clarified the obligations of public trusts registered under the Maharashtra Public Trusts Act, 1950 in providing information under the Right to Information (RTI) Act, 2005 when they run institutions receiving grants from the state government.

The key question before the court was: Whether a public trust registered under the Maharashtra Public Trusts Act 1950, which is running an institution that receives grants from the state, is duty-bound to supply information sought from it under the provisions of the RTI Act, 2005?

In its detailed ruling, the full bench laid down the following principles:

If the information sought under the RTI Act, is regarding the Public Trust, then there is no obligation to supply the information
If the Public Trust, is NOT a “body owned, controlled or substantially financed” under Sec 2 (h)(i) of the RTI Act and not received substantial Government largesse or land on concession, to implement the aims and objects of the said Public Trust even then there isnt't an obligation to provide information.
However, if the information sought under the RTI Act pertains to Educational or other Institutions run by the Public Trust and if substantial financial support is given by the government, then the Information Commissioner can direct the Institution to supply the information.
The Charity Commissioner, would also not be legally obliged to supply information he may have collected about the Public Trust, if the information falls under Section 8(j) of the RTI Act.
But if the information sought doesn't fall in the exempted category under sec.8 of the RTI Act, them it can be supplied by the Authority who has the custody of such information.

Bombay High Court Summons Commissioner Of Police Pimpri Chinchwad Over Ill-Preparedness Of His Officers In Assisting Public Prosecutors

Case Title: Akshay Londhe v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 146

The Bombay High Court expressed displeasure at the lack of assistance and insufficient knowledge about the case displayed by police officers meant to assist prosecutors during bail hearings.

Justice Madhav Jamdar observed that such behaviour was adversely affecting the administration of justice and summoned the commissioner of Pimpri–Chinchwad to appear in the matter either physically or through video conferencing on March 20, 2024.

“The Police personnel who come to Court for giving instructions to the learned APPs appearing in the matters, are often neither aware nor well-versed with the relevant details of the case,” the court lamented.

Advocate Enrolled Elsewhere Must File Vakalatnama Along With Maharashtra-Based Lawyer To Appear In Courts Here: Bombay High Court

Case Title: Moinoddin Golder Aminoddin Golder v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 147

The Bombay High Court called for appropriate action against Uttar Pradesh based lawyer Avnendra Kumar for breach of rules that govern lawyers not registered with the Bar Council of Maharashtra and Goa (BCMG).

Justice Prithviraj K. Chavan observed that despite the Advocates Rules regarding the conditions subject to which an Advocate shall practice, mandating Kumar to file his vakalatnama along with a lawyer enrolled with the BCMG if he was to appear in a court in Maharashtra, his name found no mention in the filed document.

To add to Kumar's woes his Bar licence seemed to have expired in December 2022.

“Let the copy of this order be immediately forwarded to the Chairman of Bar Council of Maharashtra & Goa to initiate appropriate action agaisnt Mr. Avnendra Kumar,” the bench thus ordered.

Not only that, the court further found that the accused - Moinoddin Golder- had filed two bail applications and secured bail from a coordinate bench.

Bombay High Court Quashes Reassessment Proceedings Against Castrol India Initiated On Basis Of A Change Of Opinion

Case Title: Castrol India Ltd. v. Deputy Commissioner of Income-tax

Citation: 2024 LiveLaw (Bom) 148

The Bombay High Court quashed reassessment proceedings against Castrol India initiated on the basis of a change of opinion.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the reasons to believe notice itself indicates that the AO was already seized with information prior to passing the original assessment order, and as such, there is no tangible information on the basis of which he has allegedly formed the requisite belief.

Bombay High Court Intervention Temporarily Halts Transportation Of Kolhapur Elephant To Jamnagar

Case Title: Swasthishri Jinsen Bhattark Pattacharya Mahaswami Sanstha Math v. Union of India and Ors.

Citation: 2024 LiveLaw (Bom) 149

The Bombay High Court directed the High-Power Committee to hear a Jain trust before finalizing the transfer of an elephant named 'Madhuri' from Kolhapur to the Radhe Krishna Temple Elephant Welfare Trust (RKTEWT) in Jamnagar, Gujarat. The court emphasized the importance of seeking the opinion of the owner, as the Jain Trust possesses a declaration under Section 40(2) of the Wildlife Protection Act, 1972.

The dispute arose when the High-Power Committee decided to transfer Madhuri based on a proposal by the NGO PETA, citing concerns about the elephant's well-being. However, the Jain trust, which has cared for Madhuri since 1992, approached the High Court, claiming that the decision was unilateral and seeking a fair chance to be heard.

The court requested the High-Power Committee to hear all parties involved before making a decision and recorded RKTEWT's statement agreeing not to transfer Madhuri until the Jain trust's representation was considered. However, the court clarified that it hadn't formed an opinion on PETA's representation, allowing the committee to consider all relevant aspects.

The High-Power Committee, initially formed in a PIL before the Tripura High Court, has expanded jurisdiction over the entire country since 2023 and deals with various animal-related matters, including transfers and rescues.

“Certificate Of Practice Subsists” – Bombay High Court Decides Not To Precipitate Action Against Lawyer Whose Bar Council ID Card Expired

Case Title: Moinoddin Golder Aminoddin Golder v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 150

The Bombay High Court decided not to initiate any further action against advocate Avnendra Kumar, who had appeared without a valid identity card during a bail hearing, after accepting his unconditional apology.

Justice Karnik observed, “In any case the Certificate of Practice issued by the Bar Council of India subsists, which could not be produced before the coordinate bench, hence any further action is now not necessary.”

On March 13th when Kumar appeared before a coordinate bench seeking adjournment in a bail application filed by advocate Abdul Karim Pathan on behalf of an accused. However, Kumar's identity card issued by the Bar Council of Uttar Pradesh expired on December 31, 2022.

Mumbai Police Fake Encounter: Bombay High Court Affirms Conviction of Police Officers | Life Term for Ex-Cop Pradeep Sharma

Case Title: The State of Maharashtra v. Pradeep Rameshwar Sharma

Citation: 2024 LiveLaw (Bom) 151

The Bombay High Court sentenced former Mumbai Police encounter specialist Pradeep Sharma to life imprisonment while upholding the life imprisonment awarded to 13 others, including 12 police personnel, in the case of the fake encounter killing of Lakhan Bhaiya in 2006, who allegedly was the former aide of the notorious gangster Chhota Rajan.

It was the first conviction of police officers in a fake encounter.

The HC upheld the life sentence of 13 convicts and acquitted six civilians. The offence against one civilian and one cop was abated as they died after conviction.

Justices Revati Mohite Dere and Gauri Godse said –

“All the circumstances led by the prosecution, right from the formation of the police squad, wrongful confinement, criminal abduction and fake encounter, has been proved.”

However, the court lamented the “gruesome” death of sole eye witness Anil Bheda days before his deposition in 2011, calling it a “shame” and a “travesty of justice” that the prime witness lost his life, but no one is booked to date. It hoped that Bheda's perpetrators would be prosecuted.

Regarding Pradeep Sharma, the sole accused to be acquitted by the trial court, the High Court said all circumstances were “overlooked” by the trial judge and the finding of acquittal “perverse” and “unsustainable” by ignoring and excluding relevant material. “The circumstances point towards the guilt of Pradeep Sharma,” the court said.

Provisions Of Section 12(5) R/W 7th Schedule Of The A&C Act Also Apply To Institutional Arbitrations: Bombay High Court

Case Title: Era International v. Aditya Birla Global Trading India Pvt. Ltd

Citation: 2024 LiveLaw (Bom) 152

The High Court of Bombay held that that provisions of Section 12(5) r/w 7th Schedule of the A&C Act also apply to Institutional Arbitrations.

The bench of Justice Bharati Dangre held that rules of an arbitral institution cannot override the provisions of the A&C Act. It held that even if parties agree to institutional arbitration, it does not exclude the Court's power to decide on the termination of an arbitrator's mandate if a controversy arises regarding the grounds mentioned in Section 14(1)(a).

“Can't Render Wife Homeless For Senior Citizen In-Laws' Peace”: Bombay HC Stays Eviction Till Interim Decision On Shared Household Under DV Act

Case Title: Sanjivani Jayesh Seernani v. Kavita Shyam Seernani & Ors.

Citation: 2024 LiveLaw (Bom) 153

The Bombay High Court stayed an order directing a daughter-in-law to vacate her matrimonial home under the Senior Citizens Act for six months until a Magistrate decides her interim application for residence under the Domestic Violence Act.

Justice Sandeep Marne held that when there's a conflict between the rights of senior citizens under the Senior Citizens Act and those of women under the Domestic Violence Act, a balanced approach is required and the rights of senior citizens cannot be determined in isolation.

“Petitioner cannot be rendered homeless to ensure peace of mind of the senior citizens,” the court added.

Banks And Financial Institutions Should Pass Reasoned Orders While Declaring Entity/Person Wilful Defaulter: Bombay High Court

Case Title: Milind Patel v. Union Bank of India

Citation: 2024 LiveLaw (Bom) 154

The Bombay High Court emphasized that the banks and financial institutions must provide reasoned orders before labeling an individual or entity as a wilful defaulter under the Reserve Bank of India's Master Circular.

The Court observed that being branded as a wilful defaulter bars one from accessing the financial sector. Consequently, the discretion granted to banks by the circular must be wielded judiciously, in line with the RBI's directives.

In a ruling dated March 4, a division bench comprising Justice BP Colabawalla and Justice Somasekhar Sundaresan underscored, “Banks and financial institutions that seek to invoke the Master Circular to declare occurrence of wilful default, must share the reasoned orders passed by its Identification Committee and Review Committee.”

Bombay High Court Issues Non-Bailable Warrant Against Promoter Of Varanium Cloud IT Services Provider, Orders For His Assets To Be Frozen

Case Title: Cherag Shah v. Harshwardhan H. Sabal

Citation: 2024 LiveLaw (Bom) 155

The Bombay High Court issued a non-bailable warrant and further directed Red Corner Notice proceedings, if required, to be initiated against Harshwardhan H. Sabale – promoter of IT company Varanium Cloud Ltd for defaulting in payment of over Rs. 49.53 crores to his creditor.

The court further ordered the attachment of Sabale's bank accounts with a total balance exceeding over Rs. 3 crore and further directed taking charge of all his demat accounts and all unencumbered shares of Varanium Cloud Limited.

Justice Abhay Ahuja passed the order due to Sabale's failure to appear before the court as directed earlier or pay his debt. Creditor Cherag Shah had approached the HC seeking execution of an arbitral award directing Sabale and Ogle Technologies Ltd to pay Shah $ 4441520 with 6% interest.

“It is clear that the Judgment Debtor No.1 is deliberately avoiding this Court and has been in violation/breach of the orders of this Court despite opportunity granted to him," the Court said.

Accordingly, the court directed the Commissioner of Police, Mumbai to secure Sabale's presence on the next date. The judge further directed the police to take steps to have a Red Corner Notice issued against Sabale with the assistance of the Ministry of External Affairs if Sabale is in the UAE.

Trademark Suit Can Be Filed At 'Principal Place Of Business', Doesn't Need To Be Filed At Company's Registered Address: Bombay High Court

Case Title: Prince Pipes and Fittings Ltd. v. Shree Sai Plast Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 156

The Bombay High Court ruled that a company's registered office may not necessarily be its principal place of business for the purposes of filing a trademark infringement suit. The court held that a suit for infringement of trademark can be filed at the "principal office" of the company, even if the registered office is located elsewhere.

The ruling came in an interim application filed by Shree Sai Plast Pvt. Ltd., seeking the return of a suit filed against it by Prince Pipes and Fittings Ltd. for trademark infringement. Prince Pipes has its registered office in Goa but its principal place of business is Mumbai, where it carries out all major business activities.

Justice Bharati Dangre dismissed Shree Sai's application, holding that the suit was rightly filed in Mumbai as that is Prince Pipes' principal place of business.

Bombay High Court Raps Commissioner Of Customs For Prohibiting Import Of Body Massagers Citing Probable Use As 'Adult Sex Toys'

Case Title: Commissioner of Customs v. DOC Brown Industries LLP

Citation: 2024 LiveLaw (Bom) 157

The Bombay High Court held that the probable or imaginative use of an item cannot be used by customs officials to prohibit it's import on grounds of obscenity. The Court dismissed an appeal filed by the Commissioner of Customs who confiscated imported body massagers on the grounds of possibly being used as “adult sex toys.”

A division bench of Justices GS Kulkarni upheld the May 2023 order of the Central Excise and Service Tax Appellate Tribunal by which it aside the Commissioner of Customs order against DOC Brown Industries LLP in April 2022.

The Commissioner had relied heavily on the opinion of psychologists and gynaecologists who opined that “Caresmith Wave Body Massager” could be subjected to other uses.

“Thus, merely because the goods can be subjected to an alternative use, of the nature, as the Commissioner contemplated, this can never be the test to hold that the goods were prohibited, when they otherwise satisfied the test of goods, which could be imported and sold.”

The court noted that the massager was confiscated citing a 60-year-old notification 'No. 01/1964,' some of whose contents may have lost its efficacy in contemporary times. It stated that the notification prohibited the import of obscene books, pamphlets, papers, writing, drawings, paintings, representations, figures or articles, and objectional descriptions.

Justice G.S. Kulkarni made scathing observations on the Commissioner's approach, calling it "astonishing and too far-fetched" and a product of "vivid imagination."

Variance In Allowable Deductions Doesn't Amount To Furnishing Inaccurate Particulars Of Income: Bombay High Court

Case Title: Pr. Commissioner of Income Tax v. ICICI Bank Ltd

Citation: 2024 LiveLaw (Bom) 158

The Bombay High Court held that the assessee cannot be said to furnish inaccurate particulars of income merely for variance in allowable deductions.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the ITAT was of the view and rightly so that the assessee had made a bona fide claim under Section 36(1)(viii), as such deductions claimed are linked to the business profit. Only because there was variance in the deductions allowable due to a change in the determination of business profit can it be said that the assessee has furnished inaccurate particulars of income or concealed inaccurate particulars of income.

Time-Barred Claims Must Not Be Entertained, Doing So Would Perpetuate Injustice Than Serving Justice: Bombay High Court

Case Title: Mahavir Enterprise v. Chandravati Sunder Salian

Citation: 2024 LiveLaw (Bom) 159

The Bombay High Court single bench of Justice Bharati Dangre held that claims that are clearly time-barred must not be entertained, as doing so would perpetuate injustice rather than serving justice. The High Court held that even the slightest doubt regarding the timeliness of a claim warrants its referral to arbitration, as interfering in such matters would encroach upon the tribunal's jurisdiction.

Further, the High Court emphasized that mere exchanges of letters or settlement discussions do not extend the period of limitation for issuing a notice of arbitration. It is imperative for a clear notice invoking arbitration to be presented within three years from the rejection of a final bill. In this instance, the notice invoking arbitration was issued 5½ years after the rejection of claims, rendering it ex facie time-barred.

Appropriately Sanctioned Work Order Can't Be Cancelled Due To Slackness Of Executing Agency, Can't Make Residents Suffer: Bombay High Court

Case Title: Ravindra Hemraj Dhangekar v. District Collector, Pune District and Ors.

Citation: 2024 LiveLaw (Bom) 160

Observing that residents cannot be penalised for authorities' delay in execution of works for public amenities, the Bombay High Court set aside cancellation of previously sanctioned works in Kasba Legislative Constituency, Pune and redirection of the funds to works in other constituencies.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor struck down two Government Resolutions (GRs) dated July 27, 2023 and August 22, 2023 to the extent of those works in other constituencies for which work orders have not yet been issued.

“If a work is duly and appropriately sanctioned and on account of any slackness or indifferent approach of the executing agency, the work could not be started or commenced, cancellation of such work leads to depriving the residents of a particular municipality of the public amenities. For such a lackadaisical approach in commencement of the work by the executing agency, the residents of the municipalities cannot be penalised”, the court observed.

The court clarified that work orders for other constituencies already issued as per the impugned GRs shall remain unaffected. However, it directed the state to execute the originally sanctioned works for Kasba in the upcoming financial year.

Holi Colours: Pidilite Industries Gets Injunction Against Rang Rasayan & Others Over Rangeela Packaging

Case Title: Pidilite Industries Limited v. Radha KishanBishan Dass Rang Rasayan Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 161

Following the Bombay High Court's intervention in a copyright suit filed by Pidilite Industries Limited, Rang Rasayan Pvt Ltd undertook to not manufacture, sell or distribute any products using packaging similar to Pidilite's "Rangeela" brand of colored powders for Holi.

Justice Bharati Dangre further ordered the company to file details of the stock sold in the last one year.

Pidilite had filed a commercial IP suit alleging copyright infringement and passing off by the defendants over the use of lookalike packaging.

As per the terms of the injunction, the defendants have agreed to several commitments, including not manufacturing, selling or exporting the infringing products through any offline or online channels. They are also required to inform dealers, distributors and e-commerce platforms like Amazon, Flipkart and others to cease selling the impugned products.

Technical Difficulties Shouldn't Thwart Objectives Of Arbitral Proceeding: Bombay High Court Allows Petition For Replacement Of Arbitrator

Case Title: M/s. Paresh Construction & Foundation Ltd. v. Hindustan Petroleum Corp. Ltd.

Citation: 2024 LiveLaw (Bom) 162

The Bombay High Court single bench of Justice Bharti Dangre held although there might be an impression that with the legal termination of the arbitral tribunal's mandate upon the expiration of one year from the reference entry, as per Section 29A of the Arbitration and Conciliation Act 1996 there might be a technical difficulty. However, it held that such technicalities should not thwart the overarching objective of the proceedings.

Where Arbitral Award In Nature Of Money Decree, Requirement Of 100% Deposit Of Award For Grand Of Stay: Bombay High Court

Case Title: Balmer Lawrie & Co.Ltd v. M/s. Shilpi Engineering Pvt.Ltd.

Citation: 2024 LiveLaw (Bom) 163

The Bombay High Court single bench of Justice R.I. Chagla held that where the arbitral award is in the nature of money decree, there is a requirement for deposit of 100% of the awarded amount for grant of stay. Further, it held that there is no distinction in the application of parameters between stays sought under Section 36(3) and Section 37 of the Arbitration Act, as neither provision specifies such differentiation

Section 36(3):

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing.

Bombay High Court Issues Show Cause Notice For Contempt Against Borrower For Using “Extra- Judicial Pressure”

Case Title: Cholamandalam Investment & Finance Company Ltd. v. State of Maharahstra & Ors.

Citation: 2024 LiveLaw (Bom) 164

Observing that defaulting borrowers are increasingly taking law into their own hands, the Bombay High Court directed certain borrowers to explain why contempt notices shouldn't be issued against them.

A division bench of Justices BP Colabawalla and Somasekhar Sundaresan prima facie observed that even after handing over physical possession of the secured asset to the non-banking financial institution, the borrowers had re-entered the premises and by breaking open the locks.

“From what has transpired in the above matter, we find that that after giving a solemn undertaking to this Court, the borrowers have sought to put extra-judicial pressure on the authorised officer of the Petitioner-NBFC. This cannot be tolerated even for a minute. We are increasingly finding that borrowers are taking the law into their own hands.”

Accordingly, the court directed borrowers Prashant Tanaji Shinde, Yamuna Tanaji Shinde & Tanvi Chavan to remain present in court on March 28 along with their advocates and explain why contempt proceedings shouldn't be initiated against them.

Domestic Violence | Court Can't Direct Parties To File Affidavit Of Assets & Liabilities In Appeal Against Final Trial Court Judgment: Bombay HC

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 165

The Bombay High Court held that the appellate court cannot direct parties to file affidavit of disclosure of assets and liabilities in proceedings challenging final judgment of the trial court in a domestic violence case.

Justice Sharmila U Deshmukh clarified that such affidavits are only required at the interim stage for the purpose of deciding interim maintenance.

“filing of affidavit of assets and liabilities would amount to bringing in new material which will have to be tested on the touchstone of evidence which will not be permissible at the appellate stage after final adjudication. At the appellate stage, where challenge is to the final judgment, as opposed to an appeal against an order of interim maintenance, in my view, upon reading of the decision of Rajnesh v. Neha (supra), the direction of filing of affidavit of disclosure cannot be said to apply inasmuch as at the time of final determination, there is material available before the Trial Court supported by evidence on the basis of which rights of the parties have been determined”, the court stated.

Minimum Three Bidders, Not Three Technically Qualified Bidders Needed For Competitive Tender Process: Bombay High Court

Case Title: Kanchan India Limited & Anr. v. Government of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 166

The Bombay High Court clarified that minimum of three bidders, not three technically qualified bidders, are required make a tender process competitive as per paragraph 4.4.3.1 of the Procurement Manual of the state.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor reasoned that tendering authorities cannot predict the technical qualifications of bidders before evaluating their bids.

“As to whether participating tenders were technically qualified or not could be known to the tendering authority only after the bids are technically evaluated. The requirement of paragraph 4.4.3.1 is participation by minimum three bidders and not participation by three technically qualified bidders. If we read paragraph 4.4.3.1 to mean that it requires participation by minimum of three technically qualified bidders, such an interpretation will make the provision non-workable. The reason is very clear. No tendering authority can be said to be in know of the fact forehand as to whether the participating tenderer is technically qualified or not.”

Bombay High Court Orders Legal Action Against Doctor For Gross Negligence In Postmortem Procedure

Case Title: Jaywant @ Bhau Mukund Bhoir v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 167

The Bombay High Court ordered the Secretary of Health, Government of Maharashtra, and the Commissioner of Police, Thane to take legal action against a medical officer for gross negligence in conducting the postmortem of a deceased in a murder case.

“The Secretary, Health, Government of Maharashtra as well as Commissioner of Police Thane are directed to take cognizance of the said report as well as the order passed by this Court and initiate an appropriate legal action against Dr. Phad and the concerned for such a gross negligence and illegality in conducting a postmortem of the deceased-Mohan Bhoir”, Justice Prithviraj K Chavan directed.

The court was dealing with a bail application filed by one Jaywant Bhoir accused of murdering a man in 2020. Bhoir filed the present bail application on the ground that the post-mortem report did not specify the cause of death of the victim. The medical officer mentioned in the post-mortem report that the cause of death will be given after receipt of the chemical analysis report.

No By-Election For Akola West Assembly Constituency: Bombay High Court Quashes ECI's Notification

Case Title: Anil S/o. Shivkumar Dubey v. Election Commission of India and Ors.

Citation: 2024 LiveLaw (Bom) 168

The Bombay High Court quashed the Election Commission of India's (ECI) by-election notification for the Akola West Assembly Constituency, Maharashtra and held that there will be no bye-poll for the constituency.

A division bench of Justice Anil S Kilor and Justice MS Jawalkar sitting at Nagpur noted that the incoming member would have a term of less than a year till the expiry of the current Assembly's term.

“As the period of less than one year is left as a balance term an incoming member would get from the date of declaration of the result of the bye-election, we have no hesitation to hold that the impugned notification dated 16/03/2024 issued by the respondent No.1 (ECI) is contrary to proviso (a) to Section 151-A of the Act of 1951”, the court observed.

[Domestic Violence Act] Bombay High Court Upholds ₹3 Crores Compensation For Woman Whose Husband Called Her “Second-Hand”

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 169

The Bombay High Court upheld a trial court's order directing a man to pay Rs. 3 crores compensation to his ex-wife for various acts of domestic violence including calling her “Second Hand” as her engagement with another person was called off.

Justice Sharmila U. Deshmukh rejected the man's revision application against the orders observing –

“Although the abuse will necessarily result in mental torture and emotional distress for the aggrieved person, the gravity will differ from person to person. In the present case admittedly both the parties are well educated and highly placed in their workplace and in social life. That being the social standing, the acts of domestic violence would be greater felt by the Respondent No 1 as it would affect her self worth”

No Contributory Negligence By Car Driver Who Rammed Into Truck From Behind Due To Non-Functional Brake Lights: Bombay High Court

Case Title: New India Assurance Co. Ltd. v. Mangal Ravindra Divate

Citation: 2024 LiveLaw (Bom) 170

The Bombay High Court held that if a truck's brake lights or taillights are not working and a car rams into it from behind, the driver of the car vehicle is not liable for any negligence contributing to the collision.

Justice Shivkumar Dige set aside an order of the Motor Accident Claims Tribunal which held the deceased 50% responsible for the accident. The court enhanced the compensation awarded to the deceased car driver, nearly doubling the amount to Rs. 29,40,000.

“Driving 70 feet long trailer without any break light or tale lamps is a grievous negligence, but these facts are not considered by the Tribunal and has fixed 50% contributory negligence on the deceased, which is erroneous. Hence, I hold that accident occurred due to sole negligence of the driver of the offending trailer."

'No Sane Man Would Believe It': Bombay HC Grants Bail To Accused Who Allegedly Raped Victim In Broad Daylight At Crowded Juhu Chowpatty

Case Title: Baharul Islam Mujibur Rehman Laskar v. State of Maharashtra and Anr

Citation: 2024 LiveLaw (Bom) 171

The Bombay High Court granted bail to a watchman accused of raping a house help behind a rock at Juhu Chowpatty in May 2021 after the court found the woman's version of events to be prima facie un-believable.

Justice Prithviraj K. Chavan stated, "Since the victim was major at the time of alleged offence, prima facie, it does not appeal to one's mind that in a broad daylight at a crowded Juhu Chowpatty on the day of Id-Ul-Fitra, the applicant would commit forcible sexual intercourse with the victim. No sane man would believe it."

The prosecution had alleged that the accused, who was working as a watchman, had developed a friendship with the victim, who was employed as a housemaid. On May 14, 2021, it was alleged that he had taken the victim to Juhu Chowpatty and sexually assaulted her behind some stones, despite her refusal and threatened her with dire consequences.

Secured Creditor Registered With CERSAI Will Have Precedence Over VAT Authorities Against Proceeds Of Enforcement: Bombay HC

Case Title: Indian Overseas Bank v. Deputy Commissioner of State Tax

Citation: 2024 LiveLaw (Bom) 172

The Bombay High Court clarified that in a sale of a mortgaged asset, where the mortgage in favour of a secured creditor is registered prior in time with CERSAI, and the MVAT Authorities too have a charge, the proceeds of the enforcement of the mortgage would first go towards discharging the dues owed to the secured creditor.

It is only the residue, if any, after discharging the dues of the mortgagee, that may flow to the MVAT Authorities, added the Court.

The High Court therefore held that once a secured creditor registers its security interest u/s 26-B of the SARFAESI Act notwithstanding any other law in force, the debts owed to the secured creditor shall be paid in priority over all other debts including taxes payable to the State Government.

A Division Bench of Justice Somasekhar Sundaresan and Justice BP Colabawalla observed, “The only effect of the interplay between Section 26-E of the SARFAESI Act and Section 37 of the MVAT Act would be that MVAT Authorities would not have priority in the recourse to the assets that are secured in favour of the secured creditor and registered in priority with CERSAI”.

Patent Illegality | For Claim For Damages There Must Be Proof Of Actual Loss: Bombay High Court Stays Arbitral Award

Case Title: Alkem Laboratories Limited v. Issar Pharmaceuticals Pvt. Limited

Citation: 2024 LiveLaw (Bom) 173

The Bombay High Court single bench of Justice RI Chagla stayed an arbitral award noting that the Arbitrator contravened the settled law that for a claim for damages, there must be proof of actual loss which is sine qua non for such claim. It held that the Arbitrator failed to consider the proof of loss while awarding damages to the Claimant.

Maharashtra Govt's Action In Levying Stamp Duty On 'DO' Is Within Legislative Competence Of State: Bombay High Court

Case Title: Saurer Textile Solutions Pvt Ltd v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 174

The Bombay High Court held that the action of the Maharashtra Government in levying stamp duty on delivery orders (DO) is within the legislative competence of the state.

The bench of Justice GS Patel and Justice Neela Gokhale observed that the action of the State of Maharashtra in levying stamp duty on Delivery Orders (DO) as provided in Article 29 of Schedule I of the Maharashtra Stamp Act, 1958 (MSA) is well within the legislative competence of the State and does not intrude upon the legislative domain of the Parliament as reserved in Entries 41 and 83 of List I of Schedule VII of the Constitution of India and is not ultra vires Article 246(1), 286(1)(b) and 286(2) of the Constitution of India.

Detention Under MCOCA Can't Continue Despite Lawful Extension If Sanction To Prosecute Accused Rejected: Bombay High Court

Case Title: Dinesh Ganesh Indre and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 175

The Bombay High Court held that once the competent authority under the Maharashtra Control of Organised Crimes Act, 1999 (MCOCA) denies sanction to prosecute an accused, their detention under MCOCA must be terminated, even if it had been lawfully extended earlier by the special MCOCA court.

Justice NJ Jamadar granted default bail to four accused individuals under MCOCA, emphasizing that without the necessary sanction, there cannot be a case under the Act.

“once the competent authority declines to grant sanction under Section 23(2) of the Act, 1999, the extended period for completion of investigation, would terminate on the day the competent authority declines to grant sanction and on the next day, the right to seek default bail, in the event chargesheet is not filed, accrues to the accused”, the court further observed.

The accused were implicated in a criminal conspiracy involving a robbery and were seeking bail.

April

ECI Has Already Taken Steps: Bombay High Court Dismisses PIL Seeking Directions On ECI To Create Voter Awareness For 'NOTA'

Case Title: Suhas Manohar Wankhede v. Election Commission of India & Others

Citation: 2024 LiveLaw (Bom) 176

The Bombay High Court dismissed a PIL seeking directions to the Election Commission of India (ECI) to create awareness in public about the 'None of the Above' (NOTA) option on electronic voting machines (EVM).

A division bench of Justice Ravindra V Ghuge and Justice RM Joshi noted that the petitioner, one Suhas Wankhede, had previously filed an identical PIL in which the court had addressed the issue adequately.

“We find that the Election Commission has already come out with a manual on Systematic Voters Education and Electoral Participation (SVEEP), which was published in July 2020. The SVEEP Strategy 2022-2025 (4) was also published…Having considered the above factors and the steps taken by the Election Commission of India and the State Election Commission, and the fact that this Petitioner had filed an identical Petition earlier, this PIL Petition is dismissed”, the court further observed.

No Requirement Of Fresh Section 21 Notice For Re-Commencing The Arbitration After The First Award Is Set Aside Under Section 34: Bombay High Court

Case Title: Kirloskar Pneumatic Company v. Kataria Sales Corporation

Citation: 2024 LiveLaw (Bom) 177

The High Court of Bombay held that there is no requirement of Section 21 notice for re-commencing the arbitration after the first award is set aside under Section 34 of the A&C Act.

The bench of Justice Bharati Dangre held that in such a situation there would be no requirement of a fresh invocation notice as the opposite party would already be aware of the existence of the dispute.

Waiver Of Arbitrator's Ineligibility Must Be Made By Agreement In Writing, Section 12(5) Does Not Provide For Deemed Consent: Bombay High Court

Case Title: Riak Insurance and Financial Services & Ors. v. HDFC Bank Limited

Citation: 2024 LiveLaw (Bom) 178

The Bombay High Court single bench of Justice RI Chagla held that the ineligibility of the arbitrator could only be waived if both parties agree by an express agreement in writing as per Section 12(5) of the Arbitration Act. Parties' consent cannot be implied otherwise.

Motor Accident Claims | Driver With Heavy Goods Vehicle Driving Licence Can Drive Light Motor Vehicles: Bombay High Court

Case Title: Niranjani Chandramouli v. Amit Ganpathi Shet and Ors.

Citation: 2024 LiveLaw (Bom) 179

The Bombay High Court held that having a Heavy Goods Vehicle (HGV) driving licence does not make a person ineligible to drive a Light Motor Vehicle (LMV), as section 7 of the Motor Vehicles Act provides for a minimum one-year-old LMV licence as a pre-requisite for HGV licence.

Justice Shivkumar Dige set aside a judgment by which the Motor Accident Claims Tribunal refused to hold an insurance company liable in a motor accident on the ground that the offending vehicle was an LMV, but the driver possessed a driving license for HGV.

“This Section prescribes one year minimum driving experience in light motor vehicle before a person issuing driving license to drive a transport vehicle. Admittedly, in the present case the driver of offending vehicle was holding driving license for heavy good vehicle. Though it is categorized in different category, as per Section 10 but after getting experience in driving LMV, the license in HGV is issued. So possessing the license of HGV and driving the LMV vehicle cannot be a ground to say that the driver was not eligible to drive the LMV vehicle”, the court observed.

Revenue Officers Bound By Decisions Of Appellate Authorities While Disposing Quasi-Judicial Issues: Bombay High Court

Case Title: M/s. OM Siddhakala Associates Versus Deputy Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 180

The Bombay High Court held that the revenue officers are bound by the decisions of appellate authorities while disposing of quasi-judicial issues.

The bench of Justice KR Shriram and Justice Dr Neela Gokhale observed that the mere fact that the order is not acceptable to the department, in itself an objectionable phrase, can furnish no ground for not following it, unless its operation has been suspended by the competent court. If this healthy rule is not followed, the result would only be undue harassment of assessees and chaos in the administration of tax laws.

S.25(3) Trademarks Act | Registrar Can't Refuse To Renew Mark On Grounds Of Delay If Not Removed From Register After Issuance Of Notice: Bombay HC

Case Title: Motwane Private Ltd. v. Registrar of Trade Marks and Anr.

Citation: 2024 LiveLaw (Bom) 181

The Bombay High Court held that the Trademark Registrar cannot refuse to renew a trademark on the grounds of delay if it has not been removed from the register after issuance of removal notice under section 25(3) of the Trademarks Act, 1999.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla directed the Registrar to renew three of the petitioners' trademarks, which inadvertently remained on the Trade Marks Register despite lapse in renewal.

“When there is a two-way lapse, that is, a lapse not only on the part of the registered proprietor in not making an application for renewal of registration, but also a lapse on the part of respondent no. 1 (Registrar), in not issuing notice of removal of the trade mark, the result would be, that the mark although not renewed would continue to remain on the register of respondent no.1, shown as the mark of the registered proprietor. In these circumstances, certainly an opportunity is available to the registered proprietor to make an application for renewal, for the reason that the mark is not removed from the register of trade marks, maintained by the Registrar.”

The court allowed the writ petition filed by the trademark proprietor challenging the non-renewal of its trademarks.

MV Rules 1989 | Bombay High Court Upholds Levy Of Additional Fees For Delayed Renewal Of Vehicle Registration, Driving Licence

Case Title: 'K' Savakash Auto Rickshaw Sangha v. Union of India and Ors.

Citation: 2024 LiveLaw (Bom) 182

The Bombay High Court dismissed a public interest litigation (PIL) and a writ petition challenging additional fees imposed for delay in applying for various vehicle related services including renewal of driving license and vehicle registration.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor held that the additional fees do not constitute a penalty but are a legitimate charge for the processing of delayed applications.

“Section 211 of the parent Act (Motor Vehicles Act), if interpreted appropriately, vests power with the Central Government to make Rules providing for levy of additional fee for processing delayed applications for certain purposes such as for seeking renewal of driving license, renewal of registration certificate of a vehicle, change of residence and transfer of ownership of vehicle. We also have no hesitation to hold that the levy of additional fee in this case, is in no manner a penalty, either directly or in disguise”, the court held.

The court disagreed with the judgment of the Madras High Court striking down levy of additional fees.

Retrospective Legislation Can't Affect Vested Rights Of Assessee: Bombay High Court

Case Title: Senapati Santaji Ghorpade Sugar Factory v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 183

The Bombay High Court held that retrospective legislation cannot affect the vested rights of the assessee.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that when the Department has extended the last date from February 1, 2021, to September 30, 2021, it can only extend the deadline but cannot introduce a new concept of eligibility as of February 1, 2021, which is not in the Income Tax Act itself. Though the Central Board of Direct Taxes (CBDT) relaxed the rigors of the provisions of the Income Tax Act for the benefit of assessees, it is not open to the CBDT to put in new rigors or impediments to the rights of an assessee in a press release or a notification that are contrary to the provisions of the Income Tax Act.

Maharashtra Board Can't Cancel Improvement Exam Result Merely Because Student Didn't Collect Marksheet Within 6 Months: High Court

Case Title: Soheb Sageerali Khan v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 184

The Bombay High Court held that the Maharashtra State Board of Secondary and Higher Secondary Education cannot cancel the Higher Secondary Certificate (HSC) re-examination results merely because the student did not collect the marksheet within 6 months.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain allowed a writ petition filed by a student challenging the cancellation of his 2018 result and seeking issuance of the marksheet.

“We fail to understand the stand of Respondent No.2 (Maharashtra Board) as to when a student has cleared his re-examination with improved marks then merely because of the ministerial act of the student not having collected the marksheet, his result itself stands cancelled. There is no logic beyond such a refusal or cancellation”, the court held.

Bombay HC Directs Trademark Registrar To Decide Applications For Renewal/Restoration Of Expired Marks For Which No Removal Notice Is Issued

Case Title: Indi Pharma Pvt. Ltd. v. Registrar of Trade Marks & Anr.

Citation: 2024 LiveLaw (Bom) 185

The Bombay High Court directed the Trademark Registrar to decide within four weeks of filing applications for renewal or restoration of expired trademarks in cases wherein no notice under section 25(3) of the Trademarks Act was issued to remove them from the registry.

A division bench of Justice GS Kulkarni, while directing the restoration of a trademark that had been removed without notice, passed this general direction so parties don't have to unnecessarily approach the court for renewal/restoration in such cases.

“This would preclude such parties from resorting to unwarranted litigation against the Registrar of Trademarks by approaching this Court or resorting to any other legal proceedings. In our opinion, such applications if made are required to be accordingly decided by the Registrar of Trademarks as expeditiously as possible and within four weeks of such application/s being made following the principles of law as discussed in Motwane Private Ltd. (supra) by taking a decision at the departmental level”, the court observed.

Fresh Tender Must Be Issued If Only One Bid Received Within Deadline: Bombay High Court

Case Title: Janadhar Sevabhavi Sanstha, Latur v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 186

The Bombay High Court quashed a tender notice issued by the Latur City Municipal Corporation (LCMC) for the selection of an operator for the collection, transportation, and processing of municipal solid waste.

A division bench of Justice Vibha Kankanwadi and Justice SG Chapalgaonkar found various irregularities in the tender process. It directed LCMC to issue a fresh tender notice in accordance with existing laws and government resolutions.

The deadline of bid submission expired on February 28, 2024, up to 2.00 pm, however, the extension was granted to March 5, 2024. The reason for the extension of the deadline was that there was only single bidder who was qualified.

The petitioner argued that as per the Government Resolution dated September 27, 2018, issued by the PWD, after LCMC realized that there is only one bid, it should have invited a fresh tender. The court noted the lack of justification for the extension of the deadline and questioned why the guidelines outlined in the Government Resolution dated September 27, 2018, were not followed. No documentary evidence was provided to support the decision to extend the bid time, the court said.

Group Of Companies | Absence Of Specific Prayer For Impleadment Of Non-Signatory Doesn't Preclude Arbitral Tribunal From Applying GOC: Bombay High Court

Case Title: Cardinal Energy and Infra Structure Private Ltd. v. Subramanya Construction and Development Co. Ltd.

Citation: 2024 LiveLaw (Bom) 187

The Bombay High Court single bench of Justice RI Chagla held that the arbitral tribunal has the power to decide whether the non-signatory is bound by the Arbitration Agreement and to implead the non-signatory.

The Court held that the absence of a specific prayer for the impleadment of a non-signatory in a Section 11 Application does not preclude the application of the 'group of companies' doctrine by the arbitral tribunal.

Bombay High Court Quashes Reassessment Order Against Housewife When Property Was Purchased By Her Husband

Case Title: Kalpita Arun Lanjekar v. Income Tax Officer

Citation: 2024 LiveLaw (Bom) 188

The Bombay High Court quashed a reassessment order against a housewife when the alleged investment was made by her husband.

The bench of Justice KR Shriram and Justice Neela Gokhale observed, “We also have to notice that, surprisingly, the Principal Chief Commissioner of Income Tax has also accorded sanction for the issuance of this order instead of directing the AO to drop the proceedings against the petitioner.”

The petitioner/assessee, a housewife who had no income and therefore was not filing any income tax return, received a notice from the Income Tax Officer under Section 148A(b) of the Income Tax Act, 1961. In the notice, it was stated that the officer has information that suggests that income chargeable to tax for Assessment Year 2016–2017 has escaped assessment.

AO To Record Dissatisfaction With Correctness Of Claim Of Assessee In Respect Of Expenditure: Bombay High Court

Case Title: PCIT v. M/s. Tata Capital Ltd.

Citation: 2024 LiveLaw (Bom) 189

The Bombay High Court held that the Assessing Officer should record his dissatisfaction with the correctness of the claim of the assessee in respect of the expenditure, and to arrive at such dissatisfaction, he should give cogent reasons.

The Bench of Justice K. R. Shriram and Justice Neela Gokhale observed that though the AO has stated that the assessee's explanation is not acceptable, he has not given reasons why it is not acceptable to him. Section 14A(2) and Rule 8D provide that if the Assessing Officer is not satisfied with the correctness of the claim in respect of expenditure made by the assessee in relation to income that does not form part of the total income under the Act, he shall determine the amount of expenditure in relation to such income in accordance with the provisions prescribed.

Pending Money Laundering Cases: Bombay High Court Says Collective Responsibility Of Probe Agencies, Defence Counsel To Make System Work

Case Title: Sarang Wadhawan v. Directorate of Enforcement

Citation: 2024 LiveLaw (Bom) 190

The Bombay High Court directed the Registrar General of the High Court to assess and solve the problem of total backlog of cases, staffing levels, and the allocation of judges for both scheduled offenses and those under the Prevention of Money Laundering Act (PMLA) at the Mumbai City Civil and Sessions Court.

Justice SM Modak added that Registrar General may also seek necessary directions from the Chief Justice in order to mitigate problems faced by the prosecuting agency as well as by under trial prisoners. "It may happen that due to intervention of learned Registrar General, the City Civil Court administration may be boosted to deal with huge pendency for scheduled and PMLA offence", the court remarked.

The court also highlighted the shared responsibilities of investigating agencies, courts, and defence counsels in ensuring efficient case management and emphasized the need for collective efforts to expedite trials.

“there is also onerous responsibility on the prosecuting Agency by remaining vigilant. If their case is not progressed (due to pendency), they are not remediless. They can request the head of that establishment (i.e. Principal Judge) to assign the case to another Court. Ultimately, running of a system is collective responsibility. The defense Counsels have also a role to play. On one hand, they have got every right to protect the interest of their clients and at the same time, they have to come forward for early disposal of the case. Because, they are also part and parcel of the system. And the system must work. Defence Counsels are also part of the same Society for betterment of which system is created. Unfortunately, nothing has happened of the sort mentioned above”

The court made these observations while granting bail to HDIL Promoters Rakesh and Sarang Wadhawan in a money laundering case arising out of the Punjab and Maharashtra Co-operative Bank Limited (PMC Bank) loan fraud case.

Senior Citizens Act Cannot Be Used As Machinery For Settling Property Disputes Between Heirs Of Senior Citizens: Bombay High Court

Case Title: Nitin Rajendra Gupta v. Deputy Collector, Mumbai and Ors.

Citation: 2024 LiveLaw (Bom) 191

The Bombay High Court observed that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 cannot be used as a machinery for settling property disputes between the heirs of senior citizens.

Justice Sandeep Marne made these observations while dealing with a writ petition by a man challenging the order of the maintenance tribunal nullifying various gift deeds executed by his senior citizen father in his favour.

The petitioner had alleged that his brother instigated his father to seek annulment of gift deeds as he wants a share in the gifted flats.

“The provision of Section 23(1) of Senior Citizens Act cannot be used as a machinery for settling property disputes between the heirs of senior citizens. However, unfortunately in many cases, it is observed that such a course of action is taken by the parties…The Tribunal therefore has to ensure that the provision is not misused by children who are denied share in the immovable properties by seeking to get gift-deed annulled by filing application through senior citizens”, the court observed.

The court observed that the objective of Section 23(1) of the Senior Citizens Act is to ensure basic amenities for seniors, not to nullify valid transfers.

Approval To Reopen Assessment Against Vodafone Granted By The Dept. In A Most Casual Manner: Bombay High Court

Case Title: Vodafone India Ltd. v. Deputy Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 192

The Bombay High Court held that the approval has been granted in a most casual manner. The power vested in the authorities under Section 151 to grant or not grant approval to the AO to reopen the assessment is coupled with a duty. The authorities were duty-bound to apply their minds to the proposal put up for approval in light of material relied upon by the AO.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that it was obligatory on all the authorities and PCCIT in particular to consider whether or not power to reopen is being invoked properly.

“We are of the opinion that if only the authorities had read the record carefully, they would never have come to the conclusion that this is a fit case for issuance of notice under Section 148 of the Act. They would have either told the AO to correct the figures in Column 7 or would have sent the papers back for reconsideration. These officers have substituted form for substance,” the bench said.

Bombay High Court Allows 2010 Acid Attack Victims To Seek Compensation Despite Lapse Of Limitation Period

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 193

The Bombay High Court allowed three victims in a 2010 acid attack case to seek compensation beyond the limitation period of three years provided in the Maharashtra Victim Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes, 2022.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain found the case deserving as the 2022 Scheme was implemented during the pendency of the victims' petition for compensation.

“We find the present case to be a deserving one for the reason that after being subjected to an acid attack, the petitioners were required to approach this Court in the matter of grant of compensation. During pendency of this writ petition, the Scheme of 2022 came to be implemented. We therefore find that the petitioners can be permitted to move an application seeking compensation in accordance with the Scheme of 2022.”

Hospitals Can't Insist On Police Complaint As A Pre-Condition To Provide Medical Care To Pregnant Minor: Bombay High Court

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

Citation: 2024 LiveLaw (Bom) 194

The Bombay High Court directed the state government to provide medical care to a 17-year-old pregnant girl who didn't file a police complaint against her partner, also a minor, and was refused treatment as a result.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla said that hospitals cannot insist that the girl's mother register a police complaint as a condition to receive medical treatment.

“The fact situation is clear that relations of the petitioner's daughter with the boy who is also a minor, were consensual. Neither the petitioner in the capacity of a parent nor the petitioner's daughter say's that she is a victim, and in fact she was conscious and aware of her actions, hence they are not desirous of registering any police complaint under the provisions of the Protection of Cildren from Sexual Offences Act, 2012…Merely for the reason that there is no police complaint, the petitioner's daughter cannot be denied medical aid.”

The court was dealing with a writ petition filed by the girl's mother seeking access to medical treatment which was denied to her due to the requirement of filing a police complaint.

The petitioner's grievance was that medical facilities demanded a police complain

Formulate SOP For Medical Termination Of Pregnancy Beyond 24 Weeks To Prevent Need For Court Intervention: Bombay High Court To State

Case Title: ABC v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 195

The Bombay High Court directed the state government to formulate a Standard Operating Procedure (SOP) within two months to be followed by all government hospitals and medical colleges in the state for medical termination of pregnancy (MTP) beyond 24 weeks.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Nitin W Sambre sitting at Nagpur directed the registration of a petition seeking permission for MTP as a separate PIL to prevent the need for court intervention in such matters.

“The learned Government Pleader is requested to not only apprise the authorities concerned about this order but also to use his good offices to ensure that workable Standard Operating Procedure is put in place and implemented so that no one needs to travel to this Court for seeking any permission for termination of pregnancy, if the woman is entitled to do so under the provisions of the MTP Act, 1971 and MTP Rules, 2003.”

The Additional Chief Secretary/Principal Secretary of the Department of Public Health, as well as the Medical Education and Drugs Department, State of Maharashtra, were impleaded as party respondents to the PIL.

The court passed these directions while allowing a writ petition by a thirty-two weeks pregnant woman seeking permission for medical termination of pregnancy due to fetal abnormalities.

No Order Passed On Rectification Application Filed By Assessee For Six Years: Bombay High Court Directs Disciplinary Action Against AO

Case Title: Pankaj Kailash Agarwal v. Assistant Commissioner Of Income Tax

Citation: 2024 LiveLaw (Bom) 196

The Bombay High Court directed the disciplinary action against AO as no order has been passed on the rectification application filed by the assessee for six years.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the Assistant Commissioner of Income Tax (ACIT) Officer was duty-bound to pass orders on the application, which has been pending for almost 6 years, instead of making baseless statements in the affidavit in reply. Perhaps ACIT thinks that he or she is not accountable to any citizen of this country. A copy of this order shall be placed before the PCCIT to take disciplinary action against ACIT for dereliction of duty.

Bombay High Court Upholds Termination Of HPCL Workman Who Slapped Supervisor, Says Astounding That CGIT Didn't Find It Serious

Case Title: Hindustan Petroleum Corporation Ltd. v. Mavji Jethalal Rathod

Citation: 2024 LiveLaw (Bom) 197

Observing that assault on a superior is a grave form of misconduct warranting termination to maintain discipline in the workplace, the Bombay High Court set aside the reinstatement of a Hindustan Petroleum workman who was terminated after he slapped his supervisor.

Justice Sandeep V Marne sharply criticized the Central Government Industrial Tribunal's (CGIT) decision to reinstate the workman with 20 percent back wages and seniority and instead award a punishment of withholding of one increment.

“CGIT has arrived at a conclusion that the acts of insubordination and assault are not serious enough to inflict punishment of termination. The view taken by CGIT that act of assault on co-employee is not serious is startling. Commission of assault on a co-employee is the gravest form of misconduct which a workman can commit. Far from penalty shocking my conscious, actually the findings recorded by the learned Presiding Officer of CGIT are shocking”, the court stated.

The Presiding Officer of CGIT considered the act of the workman 'not too serious to inflict the punishment of termination' as it did not cause any bodily injury. The court found the CGIT's reasoning “shocking” and “astounding” and emphasized that such leniency could encourage similar acts by other employees.

“The finding recorded by the Presiding Officer of CGIT that only when bodily injury is suffered by person, who is assaulted, the penalty of discharge/termination can be imposed is totally unsustainable…if an employee slapping his superior in front of others is retained in service, the same would encourage similar acts by others. Slapping his superior by the workman is one of the gravest forms of misconduct, which ought to be visited with penalty of discharge/termination.”

S.397 CrPC | FIR Won't Stand Quashed If Revision Court Sets Aside Magistrate's Order For Police Investigation Into Cognizable Offence: Bombay HC Full Bench

Case Title: Arun P. Gidh v. Chandraprakash Singh and Ors.

Citation: 2024 LiveLaw (Bom) 198

The Bombay High Court held that a court in its revisional jurisdiction cannot quash an FIR registered pursuant to the magistrate's order to police under section 156(3) CrPC to investigate a cognizable offence.

A full bench of Justice Revati Mohite-Dere, Justice NJ Jamadar and Justice Sharmila U Deshmukh observed that FIR is a statutory power of the investigating agency and would not stand quashed if the revision court sets aside the magistrate's order.

“registration of the FIR is not inexorably consequential to the order passed by the Magistrate under Section 156(3) of the Code. At the cost of repetition, it must be noted that the registration of the FIR by the police, upon a cognizable offence having been reported, is the statutory duty of the police. As a principle, therefore, we find it difficult to agree with the submission of Mr. Desai that once the order directing investigation under Section 156(3) is set aside, everything which follows must fall through.”

The court underscored that the power to quash investigations or prosecutions lies within the realm of writ jurisdiction under the Constitution or inherent powers under Section 482 of the CrPC, aimed at preventing abuse of the legal process or ensuring justice.

The larger bench held that revision under section 397 of CrPC is not an efficacious remedy against an order of the magistrate directing investigation under Section 156(3) after the registration of an FIR. However, the court emphasized that the remedy of revision would not become redundant once the FIR is registered, and the revision court order would still have utility as high court can take it into account while considering writ petition for quashing the FIR.

Bombay High Court Pulls Up Trial Judge For Overlooking Absence Of Crucial Evidence, Urges Judicial Academy To Address Such Issues During Training

Case Title: Anand Narayan Sakpal v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 199

The Bombay High Court pulled up the trial court for convicting a Postmaster for misappropriation overlooking the absence of documentary evidence of registers and journals of the Post Office crucial to verify the misappropriation.

Justice SM Modak, while setting aside the conviction, criticized the lackadaisical approach of both the prosecution and the judiciary and emphasized the importance of seizing and producing relevant documentary evidence during trial.

“Neither APP in-charge nor the trial Court Judge were vigilant in taking appropriate steps/directions. They conducted trial without registers. Trial Court discussed evidence and convicted the applicant by overlooking absence of important piece of evidence. It is strange even the Appellate Court overlooked this fact and confirmed the conviction. This is blatant disregard to the responsibility bestowed on the stakeholders.”

The court decided to bring this to the notice of the Maharashtra Judicial Academy (MJA) to address this issue, as it imparts training to judges.

“I deem it necessary to bring this lackadaisical approach of Police and Judges to the Joint Director, MJA. Because training is imparted to Judges. He can bring this fact to the notice of trial Court and Appellate Court Judges trained there. It is expected from Joint Director, MJA to inform this Court in what manner these observations were given effect. Copy of this judgment may be sent to him.”

Very Grave Offence, No Bail Despite Delay In Trial: Bombay High Court To Man Who Allegedly Murdered Neighbour To Fake Own Death For Insurance Money

Case Title: Sumit Suresh More v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 200

The Bombay High Court denied bail to a man who allegedly staged his own death by murdering his neighbour, in order to claim the benefit of his life insurance worth Rs. 1.5 Crores.

Justice Madhav J Jamdar found the alleged offence grave enough to deny bail despite a delay in the trial.

“The Applicant is incarcerated since about 4 years and 2 months and therefore Mr. Chavan, learned Counsel for the Applicant is correct in contending that there is a delay in conducting the trial. However, as noted herein above, the offence is very grave and serious. It is a pre-planned crime. To avail the benefit of life insurance policy of Rs.1,50,00,000/-, an innocent person was killed to portray that the Accused No.1 had met with an accident and that in the said accident, the car in which Accused No.1 was travelling, caught fire and the said car as well as Accused No.1 got burnt...Accordingly, the Bail Application is rejected.”

MCOCA Convicts Not Excluded Under 2006 Remission Policy: Bombay High Court While Allowing Arun Gawli's Early Release

Case Title: Arun Gulab Gawli v. State of Maharashtra

Citation: 201

The Bombay High Court held that life convicts under the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) are not excluded from the revised remission policy of 2006.

A division bench of Justice Vinay Joshi and Justice Vrushali V. Joshi sitting at Nagpur allowed premature release of gangster-turned-politician Arun Gawli convicted in 2012 under MCOCA observing –

“the petitioner is entitled to the benefits flowing from the remission policy dated 10.01.2006, which was prevailing on the date of his conviction. We also hold that by applying the rule of ejusdem generis, convicts of MCOC Act cannot be excluded from availing the benefits of the said policy.”

Filing Delayed Returns, Power To Condone Delay Is Conferred On CBDT To Ensure Substantial Justice; Bombay High Court

Case Title: Pankaj Kailash Agarwal v. ACIT

Citation: 2024 LiveLaw (Bom) 202

Explaining the scope of powers u/s 119(2)(b) of the Income tax Act, the Bombay High Court clarified that the legislature has conferred power on the Principal Commissioner of Income Tax (respondent no.3) to condone the delay to enable the authorities to do substantive justice to the parties by disposing the matter on merits.

Hence, the High Court observed that routinely passing the order without appreciating the reasons why the provisions for condonation of delay has been provided in the statute itself, defeats the cause of justice.

A Division Bench of Justice K. R. Shriram and Justice Dr. Neela Gokhale reiterated that “CBDT should keep in mind, while considering an application of this nature, that the power to condone the delay has been conferred is to enable the authorities to do substantial justice to the parties by disposing the matters on merits and while considering these aspects, the authorities are expected to bear in mind that no applicant would stand to benefit by lodging delayed returns”.

Prima Facie Rigorous Conditions For Bail Won't Apply: Bombay High Court Grants Bail To MCOCA Accused With 24 Antecedents Of Chain Snatching

Case Title: Dipak P. Mali v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 203

The Bombay High Court granted bail to an alleged chain snatcher observing that rigorous conditions for bail under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) would not apply when all his criminal antecedents pertained to chain snatching.

Justice Madhav J Jamdar granted bail to one Dipak P Mali, alleged leader of a gang of chain snatchers in Pune observing -

“Although the provisions of the Maharashtra Control of Organised Crime Act, 1999 (“MCOC”) have been invoked, all offences are of chain- snatching and therefore, prima facie rigors of Section 21(4) of the MCOC will not apply.”

As per Section 21(4) of MCOCA, before granting bail, the court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and is not likely to commit any offence while on bail.

Widow Nearing Retirement Age, Bombay High Court Permits Son To Substitute Her In Compassionate Appointment Wait List

Case Title: Durgadas s/o. Sunil Saindane v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 204

The Bombay High Court allowed the substitution of a 55-year-old widow of a deceased employee by their 18-year-old son in the wait list for compassionate appointment, as she would not be entitled to any retiral benefits if given the appointment.

A division bench of Justice Ravindra V Ghuge and Justice RM observed that though the widow is eligible, it would be purposeless to grant her compassionate appointment for 4-5 years, because she would not be entitled for any service or retiral benefits.

“Even if this Court was to grant compassionate appointment to the widow, being a class IV employee, she would retire at the age of 60 after putting in around 4- 5 years in employment. She would not even be entitled for pension and the moment she gets compassionate appointment, present pension payable on account of the deceased husband's service, would also stop”, the court observed.

Bombay High Court Refuses Filmmaker Ramesh Sippy's Plea For Appointment Of Court Receiver In Property Dispute

Case Title: Ramesh Sippy v. Sunhil Ajit Sippy & Ors.

Citation: 2024 LiveLaw (Bom) 205

The Bombay High Court rejected an interim application filed by filmmaker Ramesh Sippy in a property dispute concerning inheritance rights over various assets, including a flat in South Mumbai, shares in Sippy Films Pvt Ltd, and rights to 27 films produced by the production house.

Justice Manish Pitale refused to grant interim relief sought by Sippy, which included the appointment of a court receiver to manage the disputed assets. The court found no substantial evidence provided by Sippy to support his apprehensions regarding the disposal of the flat by the defendants.

“There is hardly any material placed on record on behalf of the plaintiff to show as to in what manner flat 5/A is being dealt with by the defendant Nos.9 and 10, which could give rise to any apprehension on behalf of the plaintiff. No case is made out for appointment of Court Receiver in respect of the said flat.”

Sippy claimed that the production company, Sippy Films Pvt Ltd, and its directors were illegally enjoying the assets of his deceased parents.

S. 50 PMLA | ED Can't Record Statement At Night By Depriving Person's Right To Sleep; Leads To Impairment Of Cognitive Skills: Bombay High Court

Case Title: Ram Kotumal Issrani v. Directorate of Enforcement and Ors.

Citation: 2024 LiveLaw (Bom) 206

The Bombay High Court criticized the Enforcement Directorate for its practice of recording statements of persons summoned under section 50 of PMLA late at night, emphasizing the right to sleep as a basic human requirement.

“The `right to sleep' / 'right to blink' is a basic human requirement, inasmuch as, non-providing of the same, violates a person's human rights. It affects a person's health, may impair his mental faculties, cognitive skills and so on. The said person, so summoned, cannot be deprived of his basic human right i.e. right to sleep, by the agency, beyond a reasonable time. Statements must necessarily be recorded during earthly hours and not in the night when the person's cognitive skills may be impaired”, the court observed.

A division bench of Justice Revati Mohite Dere and Justice Manjusha Deshpande directed the ED to issue guidelines for recording statements under Section 50 of the PMLA, ensuring respect for individuals' basic human rights.

“Consent is immaterial. Recording of statement, at unearthly hours, definitely results in deprivation of a person's sleep, a basic human right of an individual. We disapprove this practice. Thus, we deem it appropriate to direct the ED to issue a circular/directions, as to the timings, for recording of statements, when summons under Section 50 of the PMLA are issued, having regard to what is observed by us hereinabove.”

Jobs, Admissions Subject To Outcome Of Pleas Challenging Maharashtra Reservation Act: Bombay High Court

Case Title: Bhausaheb Bhujangrao Pawar v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 207

The Bombay High Court said that any applications for admissions to educational courses or recruitment to government jobs availing the Maratha quota would be subject to further HC orders on petitions challenging the reservation.

A full bench of Chief Justice Devendra Kumar Upadhyaya, Justice GS Kulkarni, and Justice Firdosh P Pooniwalla adjourned to June 13, 2024 a batch of PILs and writ petitions challenging the reservation.

“if any applications are made pursuant to the advertisement dated 9th February 2024 for admission to undergraduate medicine courses on the basis of [NEET (UG)], 2024 or pursuant to any other such advertisement for making admission to any other educational courses where applicants seek benefit of the impugned enactment, participation of such candidates/applicants shall be subject to further orders which may be passed in these petitions”, said the court.

Similarly, any advertisements made post-enactment for recruitment in public employment would also be subject to further court orders, the court held.

“in case any advertisement has been made after promulgation of the impugned enactment for making any recruitment/appointment in public employment in connection with the affairs of the State, other State instrumentalities and State public undertakings/enterprises, the same shall also be subject to further orders which may be passed in these petitions”

The court directed the authorities to inform all participating candidates of this order.

“Certainly The High Court Should Not Scrutinise An Order Of The ITSC As An Appellate Court,” Says Bombay High Court

Case Title: Commissioner of Income Tax Central v. Income Tax Settlement Commission

Citation: 2024 LiveLaw (Bom) 208

The Bombay High Court held that interference with the orders of the Income Tax Settlement Commission (ITSC) should be avoided, keeping in mind the legislative intent. The scope of interference is very narrow, and certainly the High Court should not scrutinize an order of the ITSC as an appellate court. Unsettling reasoned orders from the ITSC may erode the confidence of assessees. The larger picture has to be kept in mind.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that the ITSC was entitled to exercise discretion and has rightly exercised its discretion. The bench found that nothing was wrong with the judicial decision-making process of the Commission. When the department relies on the seized records for estimating the undisclosed income, we see no reason why the expenditure stated therein should be disbelieved.

Gives False Impression That It Is Official Mr. Bean Theme Park: Bombay High Court Temporarily Restrains Trampoline Park From Using Trademark

Case Title: Tiger Aspect Kids & Family Limited v. Mr. Bean Trampoline Park / Mr. Been Trampoline Park

Citation: 2024 LiveLaw (Bom) 209

The Bombay High Court granted ex-parte ad-interim injunction restraining a Trampoline Park in Lonavla from using the trademark, artwork, device or character of Mr. Bean from the popular comedy series which was first broadcasted in January 1990.

The court compared the registered Mr. Bean Trademark with the allegedly infringing trademark of the trampoline park and concluded –

“On the comparison, indicated above, I must note that this is a perfect case of false endorsement where the impression given to the consumers is that the trampoline park of the Defendant is authorized or is an official theme park of the Plaintiff, which is not the case. Further, the Defendant continue to use the Impugned Marks despite being put to notice and its dishonest intention is writ at large…if the Defendant is not restrained by a temporary injunction, it will continue with its nefarious activities resulting in uncalculated losses, which may not be capable of being compensated in terms of money.”

The court restrained it from conducting any commercial activity using any mark containing the words 'Mr. Bean' / 'Mr. Been' and/or any other trademark, artwork, and character deceptively similar to the Plaintiff's well-known registered said Trademark.

Bombay High Court Quashes SCN Demanding GST On Ocean Freight On Transportation Of Goods From Outside India

Case Title: M/s. Agarwal Coal Corporation Pvt. Ltd. v. Assist. Commissioner of State Tax.

Citation: 2024 LiveLaw (Bom) 210

The Bombay High Court quashed the show cause notice (SCN) demanding GST on ocean freight on transportation of goods from outside India.

The bench of Justice GS Kulkarni and Justice Firdosh P. Pooniwalla relied on the decision of the Supreme Court in the case of Mohit Minerals and observed that the verdict applies to both free on board (FOB) and sum of cost, insurance, and freight (CIF) contracts.

Investigative Journalism Doesn't Enjoy Special Protection; Public Interest Won't Permit Publication To Lower Down Reputation Without Any Truthfulness: Bombay HC

Case Title: Khanjan Jagadishkumar Thakkar v. Waahiid Ali Khan & Ors

Citation: 2024 LiveLaw (Bom) 211

Emphasizing the importance of balancing freedom of the press with an individual's right to reputation, the Bombay High Court observed that while investigative journalism serves a vital role in society, it cannot come at the expense of defaming individuals.

"As a Journalist, though he may be duty bound to appraise the public, of the facts and data which is in their interest, it definitely cannot be attempted at the cost of defaming the Plaintiff. The freedom of press, which is being evolved as a species of speech, definitely will have to be balanced against a right, which an individual has to his reputation", the court said.

Justice Bharati Dangre said that the claim of having exposed many scams does not authorize a journalist to publish something which may result in hatred, ridicule or contempt of the plaintiff merely on the pretext that it is in the public interest.

“Investigative Journalism definitely does not enjoy any special protection and the umbrage of public interest definitely do not permit a publication, which would amount to lowering down the reputation of any person, in any manner particularly without justifying the publication on the basis of its truthfulness”, the court held.

The court, while allowing an interim application in a defamation suit seeking a temporary injunction against an investigative journalist during the pendency of the suit, directed him to remove various prima facie defamatory posts from YouTube, X (formerly Twitter) and Facebook.

Refund More Than 10% Of Tax As Determined On Regular Assessment, CEAT Entitled To Interest On Refund Of Rs. 5.24 Cr.: Bombay High Court

Case Title: Ceat Limited v. Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 212

The Bombay High Court held that Ceat Limited is entitled to interest on a refund of Rs. 5.24 crore as the refund is more than 10% of tax as determined on regular assessment.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the words “amount of refund” must mean the whole of the refund of Rs. 5,24,29,950 and not an artificial split as canvassed by the Department. Therefore, irrespective of what the words “regular assessment” mean, the proviso would not be attractive.

[Cybercrime] IPC Can Simultaneously Be Invoked If Sections Under IT Act Don't Address All Ingredients Of Offence: Bombay High Court Full Bench

Case Title: Awadhesh Kumar Parasnath Pathak v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 213

The Bombay High Court held that while the Information Technology Act, 2000 is a special Act for addressing cybercrimes and has an overriding effect, it does not preclude the application of IPC in cases where the offences are not adequately addressed under the IT Act

The court held that section 43 (penalty for damage to computer) read with section 66 (fraudulently or dishonestly damaging computer), and section 72 (breach of confidentiality and privacy) of the IT Act do not encompass all ingredients of the offences of cheating and criminal breach of trust, as defined under the IPC.

Thus, the court held that the aforementioned offences under IPC can be simultaneously invoked with the sections of the IT Act against an accused in respect of the same act.

A full bench of Justice Mangesh S Patil, Justice RG Avachat and Justice Shailesh P Brahme was answering a reference by a division bench regarding the interplay of provisions under the IT Act and IPC.

The court held that neither Section 43 nor Section 66 covers situations where the acts are done by inducing the owner or person in charge of a computer system through cheating, as required under IPC sections 415 and 420.

Comparing the elements of offences under Section 72 of the IT Act with those under IPC Sections 406, 408, and 409 in light of IPC Sections 403 and 405, the court concluded that Section 72 does not encompass situations where breaches of confidentiality are undertaken for personal gain or where access is secured dishonestly. Instead, such actions would fall under the purview of IPC Sections 406, 408, and 409, it held.

Further, the court held that Sections 43 and 72 of the IT Act do not cover criminal acts done with common intention.

Bombay High Court Suspends Life Sentence, Grants Bail To Man Convicted For Beheading Girlfriend's Cousin

Case Title: Nijam Asgar Hashmi v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 214

The Bombay High Court suspended a life sentence and granted bail to a man convicted of murdering the cousin of his girlfriend by beheading him.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak prima facie rejected the prosecution's case to the extent that the murder weapon had human blood despite being found in a place filled with water.

“It is important to note here that, though the weapon used in the present crime was recovered from a ditch/pond in presence of P.W.2, from a place filled with water upto knee level, the Chemical Analyser Report mentions that, human blood was found on the said weapon. Prima facie we are unable to accept the case of the prosecution to that extent.”

Can A Section 29A Application Be Filed In The Commercial Court Or Only In The High Court? Single Bench Of Bombay High Court Refers The Issue To Larger Bench

Case Title: Sheela Chowgule v. Vijay V. Chowgule

Citation: 2024 LiveLaw (Bom) 215

The High Court of Bombay (Goa Bench) referred the issue of maintainability of a Section 29A application seeking extension of the arbitration before the Commercial Court to a larger bench in view of conflicting views by two co-ordinate benches of the High Court.

The Bench of Justice Bharat P. Deshpande observed that the since Section 29A of the A&C Act not just involves extension of the mandate of the arbitrator, but also questions relating to the substitution, termination and reduction of the fees of the arbitrator, therefore, the power under Section 29A can only lie with the High Court in view of the appointing power given to it under Section 11 of the Act.

However, the Court remarked that since conflicting decisions are taken by the two co-ordinate benches, Judicial Propriety demands that the issue must be referred to a larger bench for an authoritative pronouncement.

Reception Held In Mumbai Not Part Of Marriage Ritual: High Court Declines Mumbai Family Court's Jurisdiction Over Husband's Divorce Plea

Case Title: Shikha Lodha v. Suketu Shah and Anr.

Citation: 2024 LiveLaw (Bom) 216

Observing that reception can't be considered part of the marriage ritual, the Bombay High Court held that the family court in Mumbai had no jurisdiction over a divorce case just because the couple had the wedding reception in Mumbai and resided there for a few days.

“There is no dispute between the parties that all the rituals of the marriage took place on 7 June, 2015 at Jodhpur, Rajasthan. In Mumbai, there was only a wedding reception on 11 June, 2015. In my view, there can't be any doubt that a wedding reception can't be called as a part of marriage ritual”, the court observed.

Justice Rajesh S Patil allowed a woman's application challenging Family Court Mumbai's jurisdiction over her husband's divorce petition observing that the couple's actual last place of joint residence is in the US.

“Sec.19(iii) of Hindu Marriage Act, nowhere mentions “last residing together in India”. In my view such words “in India”, can't be read in the sub-section (iii) of 19”, the court observed.

Although Adultery Is Grounds For Divorce, It Can't Be A Ground To Deny Child's Custody: Bombay High Court

Case Title: ABC v. XYZ

Citation: 2024 LiveLaw (Bom) 217

The Bombay High Court held that adultery is a ground for divorce but cannot be a ground for denying custody of a child.

Justice Rajesh Patil dismissed a writ petition filed by son of a former legislator seeking custody of his nine-year-old daughter from his estranged wife on grounds of adultery.

“Adultery is in any case a ground for divorce, however the same can't be a ground for not granting custody”, the court observed.

The court relied on a January 2024 judgement by the Delhi High Court, which granted custody to a wife despite allegations of her extramarital affair being proven.

Director General Of Shipping's 2022 Order For Certification Of Accommodation Barges Not Applicable To Ships Registered Under Coastal Vessels Act: Bombay HC

Case Title: Hind Offshore Pvt. Ltd. v. Union of India & Ors.

Citation: 2024 LiveLaw (Bom) 218

The Bombay High Court held that the 2022 order of the Director General of Shipping for certification of accommodation barges does not apply to vessels which are not Indian ships registered under the Merchant Shipping Act, of 1858.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla temporarily stayed orders of the Directorate General of Shipping to detain three of the petitioner's non-self-propelled accommodation barges registered under the Coastal Vessels Act, of 1838.

The impugned detention orders dated May 8, 2023, May 22, 2023, and June 3, 2023, were issued due to alleged non-compliance with a general order issued by the Director General of Shipping, Mumbai (DGS) on October 20, 2022. This order laid down norms for the certification of offshore vessels and accommodation barges operating in the Indian Exclusive Economic Zone, imposing additional conditions such as the installation of lifeboats.

“The measures as sought to be imposed on the petitioner as a consequence of the general direction as issued under the impugned order dated 20 October 2022 may be in the larger interest of the vessels and for benefit of the persons deployed thereon, however, when the impugned order is sought to be imposed on the petitioner, it can be imposed only if the law would permit the applicability of the said order to the category of vessels belonging to the petitioner and not otherwise”, the court observed.

Appointment Of Arbitrators From A Narrow Panel Of 4 Arbitrators Is Violative Of Section 12(5) Of The A&C Act: Bombay High Court

Case Title: NP Enterprises v. General Manager, Western Railway

Citation: 2024 LiveLaw (Bom) 219

The High Court of Bombay held that appointment of arbitrator from a narrow panel of 4 arbitrators is violative of Section 12(5) of the A&C Act. It held that such practice of preparing narrow panels restricts free choice and give rise to suspicion that favourites are chosen.

The bench of Justice Bharati Dangre held that independence and impartiality of arbitrators is a hallmark of arbitration and the rule against bias is one of the fundamental principles of natural justice, which is applicable with equal force in all quasi-judicial proceedings.

Bombay High Court Quashes Case Against Raj Thackeray For Abetting Violence And Public Property Damage In 2008

Case Title: Swararaj @ Raj Shrikant Thackeray v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 220

The Bombay High Court quashed a criminal case against Maharashtra Navnirman Sena (MNS) chief Raj Thackeray for alleged abetment of violence and public property damage arising out of a stone pelting incident in 2008.

Justice Nitin B Suryawanshi of the Aurangabad bench set aside lower court orders refusing to discharge Thackeray in a case involving MNS supporters allegedly attacking a state transport (ST) bus during a protest demanding his release from custody.

“In absence of any material on record to show instigation on the part of petitioner in the present crime, charge against petitioner is groundless and Trial Court as well as Sessions Court have failed to appreciate this vital aspect and have erred in rejecting prayer of petitioner for discharge. The impugned orders are therefore unsustainable in law and facts of the case”, the court held.

Thackeray was facing charges under sections 143, 341, 336, 337, 427, 109 of IPC, Section 3 and 4 of Prevention of Damage to the Public Property Act, section 135 of Bombay Police Act and section 7 of Criminal Law Amendment Act. These charges stemmed from an incident on October 21, 2008, where he allegedly incited violence resulting in damage to public property.

Power Of General Manager Of Employer To Confirm Nomination Of Arbitrator By The Contractor Runs Contrary To Principles Of Impartiality And Independence: Bombay High Court

Case Title: Telex Advertising Pvt Ltd v. Central Railway

Citation: 2024 LiveLaw (Bom) 221

The High Court of Bombay held that the power of General Manager of the employer to confirm nomination of arbitrator by the Contractor runs contrary to principles of impartiality and independence. It held that nomination by a party of its arbitrator cannot be subject to approval by the other party.

The bench of Justice Bharati Dangre held that for an appointment of arbitrator from a panel unilaterally prepared by a party, it must be broad and diverse to allow free choice to the other party and any deviation would be hit by Section 12(5) of the Act.

Arbitrator's Mandate Would Not Be Terminated When The Delays In Arbitral Proceedings Are Not Attributable To It: Bombay High Court

Case Title: Glencore India Pvt Ltd v. Amma Lines Limited

Citation: 2024 LiveLaw (Bom) 222

The High Court of Bombay held that an arbitrator's mandate would not terminate when the proceedings are not completed within timelines agreed by the parties, if the delays in the conduct of the proceedings are attributable to the party seeking termination of the mandate.

The bench of Justice Bharati Dangre held that generally, in an arbitration not governed by Section 29A, the arbitrator's mandate expires upon its failure to conclude the proceedings within the time period agreed by the parties, however, it would not hold true when the tribunal acted expeditiously and the delays in proceedings were on account of fault of the parties themselves.

Bombay High Court Strikes Down State's Circular Imposing Additional Conditions For Registration Of Govt Employee Vehicles Under “BH Series”

Case Title: Mahendra Bansilal Patil v. Commissioner of Transport & Ors.

Citation: 2024 LiveLaw (Bom) 223

The Bombay High Court quashed the State government's circular providing additional conditions for registration of vehicles belonging to government employees under the “BH series”.

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla allowed a writ petition filed by Civil Judge Mahendra Bansilal Patil challenging the Commissioner of Transport's refusal to register his newly purchased motor vehicle under the 'BH series'.

“in the absence of any power conferred on the Commissioner to super impose conditions on any applicant seeking registration of the vehicles, which are not conditions under Central Rules (Supra), the Commissioner could not have issued such circular”, the court observed.

Tata Steel Entitled To Treat Contribution Of Rs. 212.52 Crores To CAF As Revenue Expenditure: Bombay High Court

Case Title: PCIT v. Tata Steel

Citation: 2024 LiveLaw (Bom) 224

The Bombay High Court held that Tata Steel is entitled to treat the contribution of Rs. 212.52 crores to the Compensatory Afforestation Fund (CAF) as revenue expenditure.

The bench of Justice K. R. Shriram and Justice Neela Gokhale relied on the decision of the Bombay High Court (Goa Bench) in the case of The Commissioner of Income Tax v. Dr. Prafulla R. Hede, and another has accepted that a contribution to CAF will be revenue expenditure and not capital in nature.

Error On Part Of Auditor Should Be Accepted As Reasonable Cause Shown By Trust Management For Delay Condonation: Bombay High Court

Case Title: Sham v. Walve

Citation: 2024 LiveLaw (Bom) 225

The Bombay High Court held that the error on the part of the auditor cannot be rejected but should be accepted as a reasonable cause shown by the trust management.

The bench of Justice KR Shriram and Justice Neela Gokhale observed that an assessee, a public charitable trust with almost over thirty years, which otherwise satisfies the condition for availing exemption, should not be denied the same merely on the bar of limitation, especially when the legislature has conferred wide discretionary powers to condone such delay on the authorities concerned.

Judges Must Not Tarnish Image Of Judiciary: Bombay High Court Upholds Removal Of Civil Judge Who Arrived At Judicial Academy In Inebriated State

Case Title: Aniruddha Ganesh Pathak v. Registrar General, Bombay High Court and Anr.

Citation: 2024 LiveLaw (Bom) 226

The Bombay High Court upheld state government's order removing civil judge Aniruddha Ganesh Pathak from judicial service due to unilateral adjournment of cases, failure to follow court timings and arriving under the influence of alcohol.

A division bench of Justice AS Chandurkar & Justice Jitendra Jain observed –

“It is a universally accepted norm that Judges and Judicial Officers must act with dignity and must not indulge in a conduct or behaviour which is likely to affect the image of judiciary or which unbecoming of a Judicial Officer. If the Members of the judiciary indulge in a behaviour which is blameworthy or which is unbecoming of a Judicial Officer, the Writ Courts are not expected to intervene and grant relief to such a Judicial Officer.”

The court dismissed Pathak's writ petition challenging an order dated January 14, issued by the Secretary, Law and Judiciary Department, Mumbai, which directed Pathak's removal from service.

Undisputed Employer-Employee Relationship Must For Proceedings Under Contract Labour (Regulation & Abolition) Act, 1970: Bombay High Court Set Asides Industrial Court Order

Case Title: Indus Towers Limited v. Rajendra Patil (Yedravkar) and Anr.

Citation: 2024 LiveLaw (Bom) 227

The Bombay High Court single bench of Justice Amit Borkar held that for the proceedings under the provisions of Contract Labour (Regulation & Abolition) Act, 1970, the relationship between employer-employee should be undisputed. The court held that in absence of such a relationship, the labour court or the industrial court doesn't have any jurisdiction to deal with the matter falling under the provisions of Contract Labour (Regulation & Abolition) Act, 1970.

Lengthy Period Of Absence Without Leave Documentation Is Unjustified, Bombay High Court Reduces Back Wages Of MSRTC's Employee

Case Title: Maharashtra State Road Transport Corporation v. Dattatraya Ganpat Bankhele

Citation: 2024 LiveLaw (Bom) 228

The High Court of Bombay single bench of Justice Sandeep V. Marne held that lengthy periods of absence from duty without proper leave documentation are unjustified, regardless of the plausibility of the reason behind the absence.

The High Court acknowledged that the Labour Court's decision of reinstatement of the absent employee with 25% back wages could not be reversed as the employer failed to challenge it. However, the Industrial Court was unjustified to increase the back wages to 100%, in the absence of concrete reasons.

Abandonment Of Service Needs To Be Established By Conduction Of Enquiry: Bombay High Court

Case Title: Bhushan Industries v. Lohasingh Ramavadh Yadav

Citation: 2024 LiveLaw (Bom) 229

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a Writ Petition in the case of Bhushan Industries vs Lohasingh Ramavadh Yadav held that abandonment of service is a question of fact that needs to be established by conduction of an enquiry.

If the Petitioner actually believed that the Respondent has abandoned his services, at least a show cause notice ought to have been issued to the Respondent. Since correspondence was on going between the Petitioner and the Respondent, it was possible for the Petitioner to conduct an enquiry accusing the Respondent of absconding from his duties, the court observed.

Least Plausible For Syedna Mohammed Burhanuddin To Think Of Appointing Successor Immediately After Assuming Office In 1965: Bombay High Court

Case Title: Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin

Citation: 2024 LiveLaw (Bom) 230

The Bombay High Court observed that Taher Fakhruddin, challenger to his uncle Mufaddal Saiffuddin's position as the Dai al-Mutlaq of the Dawoodi Bohra community, accepted vague indications for his own nass, but dismissed concrete evidence for the nass conferred on Syedna Saifuddin.

The court found it “least plausible” that Syedna Mohammed Burhanuddin, the 52nd Dai, immediately thought of appointing his successor upon assuming office in 1965 at 51 years of age, as claimed by Fakhruddin.

The court held that Fakhruddin's suit failed on all counts of likelihood, probability, balance, preponderance, prudence.

The court emphasized that the suit is a civil claim, distinct from matters of faith, and it is deciding not who should more appropriately be the Dai, but merely who proved, according to civil law, his claim of having properly appointed the 53^rd Dai.

The court observed that it's not within its purview to conclusively determine religious doctrine, and refused to affirmatively or prescriptively elucidate the requirements of a valid nass. Instead, it assessed whether Fakhruddin substantiated his claim regarding the requirements of a Nass. The court held that Fakhruddin failed to prove his case on requirements of a valid “nass”.

Contractors Challenging Tender Conditions Via PIL Pollute Purity Of The Stream Of Public Interest Litigation: Bombay High Court

Case Title: Nilesh Chandrakant Kamble v. MMRDA Govt of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 231

The Bombay High Court observed that permitting contractors to file PILs challenging tender conditions is a sheer abuse of process of the court, and “pollutes purity of the stream of PIL”.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor dismissed a PIL by a contractor against a tender issued by Mumbai Metropolitan Region Development Authority (MMRDA), and imposed costs of Rs. 50,000 on the petitioner.

“However, permitting a contractor to file a PIL petition challenging the conditions of a tender, in our opinion, is nothing but a sheer abuse of process of Court and an effort to pollute the purity of the stream of public interest litigation. The petitioner has himself stated in the petition that he is engaged in the similar business as mentioned in the subject tender. Accordingly, this petition cannot be permitted to be entertained as a PIL petition.”

The court opined that the petition, purportedly filed in public interest, was actually filed with oblique motives. The petitioner, claiming to be a social worker engaged in a similar business as mentioned in the tender, claimed to be aggrieved by certain conditions of the subject tender.

'Sordid State Of Affairs': Bombay High Court Orders SP To Personally Look Into Rape Probe After Noting IO May Have Ulterior Intentions

Case Title: XYZ v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 232

The Bombay High Court ordered the Superintendent of Police, Jalgaon to personally look into an investigation into a rape case after noting that the investigating officer (IO) may have some ulterior intentions considering his unresponsiveness.

A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme noted that despite promptly reporting to the police, the offence under Section 376 was added later in the FIR for reasons best known to the IO.

The court noted a "sordid state of affairs," observing that despite a strong motive, medical evidence, and witness statements consistent with the allegations in the FIR, the prosecutor did not have instructions on how to proceed.

The court directed the Superintendent of Police, Jalgaon, to take appropriate steps including change in IO after thoroughly examining all aspects including the charge sheet. The court directed the appointment of a woman police officer of not less than the rank of Deputy Superintendent of Police to lead the inquiry.

"Strong-Arm Tactics": Bombay High Court Says Public Sector Banks Can't Request Look Out Circulars Against Defaulters, Quashes LOCs

Case Title: Viraj Chetan Shah v. Union of India and Ors.

Citation: 2024 LiveLaw (Bom) 233

The Bombay High Court observed that Look Out Circulars (LOCs) issued by Ministry of Home Affairs (MHA) against loan defaulters at the behest of public sector banks (PSBs) are strong-arm tactics to circumvent legal processes and violate Articles 14 and 21 of the Constitution.

“The LOCs boil down to nothing but a strong-arm tactic to bypass or leapfrog what PSBs clearly see as inconveniences and irritants — the courts of law”, the court said.

A division bench of Justice GS Patel and Justice Madhav J Jamdar struck down the LOCs as well as the provisions of governing Office Memoranda (OMs) that empowered PSBs to seek LOCs against loan defaulters.

The court held that the right to travel abroad, part of the fundamental right to life under Article 21 of the Constitution cannot be curtailed by an executive action without any governing statute or controlling statutory provision.

“For what is being suggested is that (a) there is no controlling statute; therefore (b) executive action must suffice, and consequently (c) mere executive action can infringe an Article 21 fundamental right. That is the inevitable consequence of this argument, and it simply cannot be accepted”, the court said, rejecting Union of India's argument.

The court rejected arguments of wider public interest justifying LOCs. “No amount of 'public interest' can substitute for a 'procedure established by law', i.e., by a statute, statutory rule or statutory regulation in the matter of deprivation of the right to life and personal liberty guaranteed under Article 21 of the Constitution of India”, the court held.

Ensure Effective Implementation Of Law Against Manual Scavenging: Bombay High Court To State

Case Title: Shramik Janata Sangh and Ors v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 234

The Bombay High Court called for information from the Municipal Corporations of Greater Mumbai, Thane, Kalyan-Dombivali, and Mira-Bhayander on steps taken for effective implementation of the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.

These Municipal Corporations have to furnish the information in the first phase of gathering information from the entire state.

The reply affidavit must state whether State Monitoring Committee, Vigilance Committees, State Level Survey Committee, District Level Survey Committee and Sub Divisional Committee at Divisional Level, have been constituted and their composition. If the committees are not constituted, the affidavit has to state what steps have been taken to form the committees. The affidavit also has to state the steps taken for identification and rehabilitation of manual scavengers, and any schemes implemented by the local authorities.

A division bench of Justice Nitin Jamdar and Justice MM Sathaye observed -

“The first step that needs to be taken to address the wider issue, is to ensure that the statutory authorities constituted under the Act of 2013 are established and are functional and have the requisite manpower and necessary administrative setup.”

The court was dealing with a writ petition filed Shramik Janata Sangh, an association working for manual scavengers and seeking compensation for the family of a person who died while manual scavenging.

Reassessment Can't Be Based On Reasons Borrowed From Other Dept. Or Justice M.B. Shah Commission Report: Bombay High Court

Case Title: Balaji Mines And Minerals Pvt. Ltd. v. Assistant Commissioner Of Income Tax

Citation: 2024 LiveLaw (Bom) 235

The Bombay High Court held that the reasons for reopening clearly show that the assessing officer, except borrowing the information from the third report of the Justice M.B. Shah Commission, failed to record independently to his own satisfaction any reason so as to direct the reopening of the assessment.

The bench of Justice Bharat P. Deshpande and Justice Valmiki Menezes did not see any reason for independently forming opinions by the Assessing Officer, apart from what was borrowed from the Justice M.B. Shah Commission report. Thus, reasons that do not have any application to the mind or any independent material or reason to believe cannot be construed as legal reasons for re-opening the assessment.

Words Fall Short To Describe Impact Of Ordeal On Victim: Bombay High Court Denies Bail To Neighbour Accused Of Sexually Abusing Child For Nine Yrs

Case Title: Mehraj @ Meraj Kaddan Khan v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 236

The Bombay High Court denied bail to a man accused of continuously sexually abusing a child over a period of nine years observing that his “horrible, appalling and obnoxious” crime caused so much trauma to the child that she has become a nymphomaniac.

In his order, Justice Prithviraj K Chavan reproduced verbatim 27 handwritten pages in the victim's notebook narrating repeated sexual abuse and threats by her neighbour from when she was an 8-year-old child studying in 4th standard till she attained the age of seventeen. The victim also described feeling shame, having attempted suicide, and getting addicted to sex and smoking to control lust as a result

The court observed that the victim had become habitual to sexual intercourse due to the trauma of the abuse by the accused.

“This is not at all a fit case to admit the applicant to bail. To do so would tantamount to further aggravate and fester the wounds of the victim which are still fresh in her mind, body and soul. Apart from these aspects, looking to the nature and propensity of the applicant, likelihood of repeating similar offence cannot be ruled out. It is quite possible that in case of his release, the applicant may threaten and coerce the victim and her parents”, the court held.

The court highlighted that children are easy targets as they are easily threatened and are less likely to speak out about the abuse.

In light of the heinous nature of the crimes and the potential threat posed by the applicant, the court deemed it inappropriate to grant bail. It directed the Trial Court to expedite the trial proceedings without unnecessary delays.

May

Words Fall Short To Describe Impact Of Ordeal On Victim: Bombay High Court Denies Bail To Neighbour Accused Of Sexually Abusing Child For Nine Yrs

Case Title: Balkrishna Barsha Sutar v. Income Tax Officer

Citation: 2024 LiveLaw (Bom) 237

The Bombay High Court held that the sanctioning authority has to be the Principal Chief Commissioner of Income Tax (PCCIT) for issuing a reopening notice after the expiry of three years.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that, as per the order and the notice, the authority that has accorded the sanction is the PCIT-27, Mumbai. The matter pertains to Assessment Year 2017-2018, and since the order as well as the notice were issued on July 20, 2022, both have been issued beyond a period of three years. Therefore, the sanctioning authority has to be the PCCIT, as provided under Section 151(ii) of the Income Tax Act. The proviso to Section 151 has been inserted only with effect from April 1, 2023, and, therefore, shall not be applicable to the matter at hand.

Section 151(ii) of the Income Tax Act states that no notice shall be issued under section-148 by an Assessing Officer, who is below the rank of Joint Commissioner, unless the Joint Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice.

Individuals Involved In Manual Work Are Considered Workmen Under ID Act, In Absence Of Direct Oversight Over Subordinates In Supervisory Role: Bombay High Court

Case Title: Godrej and Boyce Manufacturing Company Ltd v. Shivkranti Kamgar Sanghatana

Citation: 2024 LiveLaw (Bom) 238

The Bombay High Court single bench of Justice Amit Borkar held that employees predominantly engaged in manual, skilled, and unskilled work, in absence of sufficient evidence of direct oversight of subordinate employees, qualify as 'workmen' under Section 2(s) of the ID Act.

The High Court noted that there were significant amendments in the ID Act in 1956 and 1982 that broadened the definition of "workman" to encompass supervisory and technical roles. It emphasized that the determination of an individual's status as a 'workman' hinges upon the actual duties performed, irrespective of designation or salary. It held that if the nature of duties predominantly aligns with any of the categories specified in Section 2(s) of the ID Act, the individual qualifies as a 'workman'.

It held that the focus should be on the nature of the employee's duties and functions. It emphasized that while additional duties may exist, the primary purpose of the employee's role must be considered. The Tribunal, in determining the status of an employee, is tasked with scrutinizing the duties assigned and drawing a legal conclusion based on their alignment with the definition of 'workman' under the law.

Bombay HC Upholds Removal Of Judge Accused Of Bribery In POCSO Case, Says Punishment Must Uphold Court's Dignity & Instil Faith In Litigants

Case Title: Pradeep Hiraman Kale v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 239

The Bombay High Court upheld the removal of a Judicial Officer accused of taking a bribe to acquit an accused under the POCSO Act observing that writ courts need not grant relief to a Judicial Officer whose conduct is likely to affect the image of the judiciary.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain dismissed a writ petition filed by one Pradeep Hiraman Kale challenging his removal.

The court pointed out that judicial review in termination matters is limited to instances of violations of natural justice, flaws in decision-making procedure, or patent illegality, rather than challenging the decision itself. It highlighted that disciplinary proceedings, though quasi-judicial and quasi-criminal, do not adhere to the standard of proof beyond reasonable doubt but instead rely on the preponderance of probabilities.

“…the parameters required for conducting disciplinary enquiry cannot be compared with the parameters required in criminal trial. The purpose of disciplinary proceedings is to enquire into an allegation of misconduct against the delinquent employee and such charge is to be proved on the basis of principles of preponderance of probability and not on strict rules of evidence.”

Income Tax Authority Should Refrain From Over Analysis Which Leads To Paralysis Of Justice: Bombay High Court

Case Title: Bhatewara Associates v. Income Tax Appellate Tribunal, Pune & Ors.

Citation: 2024 LiveLaw (Bom) 240

The Bombay High Court, while setting aside the order of the Income Tax Appellate Tribunal (ITAT), held that the authority should refrain from overanalyzing, which leads to paralysis of justice.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the ITAT failed to appreciate the spirit in which the order dated August 23, 2022, was passed by the High Court condoning the delay by observing that the Income Tax Authority should consider the claim for deduction under Section 80IB(10) of the Income Tax Act for AY 2011–12 made by the petitioner in accordance with law, as if there was no delay in filing the return.

Ban On Liqour Sale In Raigad District To Operate On Specific Polling Dates For Its Two Lok Sabha Constituencies; No Ban On Entire District: Bombay High Court

Case Title: Navi Mumbai Hotel Owners Association and Anr. v. District Collector (State Excise) and Ors.

Citation: 2024 LiveLaw (Bom) 241

Reiterating that the sale of liquor can be prohibited during elections only in polling areas, the Bombay High Court reduced the prohibition imposed in the entire Raigad district due to Lok Sabha elections in its two constituencies.

The ban will operate in Raigad constituency from May 5 to May 7 and in Maval constituency from May 11 to May 13.

Raigad District has two Lok Sabha constituencies – Raigad and Maval. While polling is to be held on two different dates in the two constituencies, i.e., May 7, 2024 and May 13, 2024 respectively, the order banned liquor sale in both the constituencies on both polling dates.

Finding this beyond the scope of Section 135-C of the Representation of People Act of 1951, the court partially modified the order.

The court held that the prohibition imposed by the impugned order extended beyond the limits specified in Section 135-C of the Act of 1951. While Section 142 of the Prohibition Act empowers the Collector to close places where intoxicants are sold, the court emphasized that this power must be exercised in conjunction with Section 135-C of the RP Act, particularly when the ban is being imposed only due to elections.

Dismissal From Service Is Disproportionate For Misconduct Of Overwriting Reasons Of Absence On Gatepass: Bombay High Court

Case Title: Danfoss Systems Ltd v. Johnson Gomes

Citation: 2024 LiveLaw (Bom) 242

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a Writ Petition in the case of Danfoss Systems Ltd vs Johnson Gomes has held that dismissal of service of a workman was disproportionate for an offence of overwriting the reason of absence on the Gatepass.

The court observed that the misconduct committed by the Workman was not so grave so as to impose penalty of dismissal from service. Even if any malafide intention is imputed on the Workman, the only objective which could be achieved by overwriting the Gatepass was to save one day's leave. Thus, the Workman did not commit forgery with the objective of gaining any pecuniary advantage from the Employer.

The court further observed that the act of the workman in overwriting on the Gatepass by changing the reason for absence was definitely a misconduct and needs to be visited with a penalty but a harsh penalty of dismissal from service was not warranted.

Bombay High Court Grants Bail To Murder Accused Who Wasn't Produced Before Trial Court On 70 Previous Dates, Calls It Prosecution's Failure

Case Title: Gaurav Bandu Patil v. State Of Maharashtra And Another

Citation: 2024 LiveLaw (Bom) 243

The Bombay High Court granted bail to a murder accused after he was not produced before the trial court on 70 occasions, despite notices from the trial court.

Justice SG Mehare of the Aurangabad bench observed that although the charges are serious, the non-production of the accused before the trial court entitled him to bail.

“Though the prosecution is opposing the application on the ground that the offence is serious, it has no explanation for his non-production of the accused before the Court for 70 dates. It is a sheer failure of the prosecution to produce the accused before the Court for framing the charge and progress of the trial”, the court observed.

Highlighting the prosecution's failure to provide a satisfactory explanation for the repeated non-production of the accused, the court emphasized the principle that bail could be granted in cases where the trial is prolonged without fault on the part of the accused and where there is no effective progress.

High Court Stays Maharashtra Govt's Amendment Exempting Private Schools From 25% RTE Quota If Govt-Run School Exists Nearby

Case Title: Aswini Jitendra Kable v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 244

The Bombay High Court stayed till further orders the exemption to private unaided schools from providing 25% quota in Class I or Pre-school for children of disadvantaged sections if there is a government-run or aided school within 1 km radius of that private school.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor prima facie found that the 2024 amendment to the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 is ultra vires the RTE Act, 2009.

“By the impugned provisos, the right of children to get free elementary education is being hampered which is otherwise guaranteed under Article 21A. Thus, having regard to the overwhelming public interest, we provide that till further orders the amendment incorporated in the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 shall remain stayed”, the court added.

The court issued notice on a PIL filed by one Aswini Kable challenging the amendment. By the amendment, provisos were inserted to Rule 4 and Rule 8 of the aforementioned rules, excluding private unaided schools from the obligation to provide RTE quota if a government school is in the neighbourhood.

Bail Cannot Be Denied Merely Because Accused Has Received Treatment In Judicial Custody: Bombay High Court Grants Two-Month Interim Bail To Jet Airways Founder Naresh Goyal In Money Laundering Case

Case Title: Naresh Goyal v. ED

Citation: 2024 LiveLaw (Bom) 245

The Bombay High Court granted interim bail for two months to Jet Airways founder Naresh Goyal in a money laundering case arising out of an alleged loan default of Rs. 538 Crores given to Jet Airways by Canara Bank.

Justice NJ Jamadar pronounced the judgement.

"The broad submission that since the applicant has got best of the treatment, he does not deserve to be released on bail, looses sight of the precious value of personal liberty. To accept such a broad proposition that once a person gets the requisite treatment, he does not deserve bail, howsoever critical his health condition may be, would defeat the legislative intent of enacting the proviso and render the proviso otiose", the court observed.

Proviso to Section 45(1) empowers the Court to release a person accused of an offence under the PMLA on bail, if such person is sick or infirm or a woman or under 16 years of age.

"the age of the applicant, the disease he is suffering from, the treatment recommended for the said disease, other ailments the applicant is suffering from and the situation in life brought about by the life-threatening disease the wife of the applicant is suffering from, cumulatively justify exercise of discretion vested in the Court under the proviso to section 45(1) of PMLA", the court observed.

Lender Bank Registered With CERSAI Has 1st Priority Over DCST Against Proceeds Of Enforcement Under SARFAESI Act: Bombay High Court

Case Title: Purushottam Prabhakar Chavan v. Deputy Commissioner of Sales Tax (GST)

Citation: 2024 LiveLaw (Bom) 246

The Bombay High Court held that lender bank registration with the Central Registry of Securitisation and Security Interest of India (CERSAI) has first priority over Deputy Commissioner of Sales Tax (GST) (DCST) against proceeds of enforcement under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

The bench of Justice BP Colabawalla and Justice Somasekhar Sundaresan observed that the Lender Bank had first priority in enforcement against the Walkeshwar Flat with effect from January 24, 2020, having been the first to register with CERSAI, which was done on January 2, 2020. The bench noted that Encore ARC, which conducted the auction on February 28, 2023, acquired the entitlement to priority from the lender bank along with the assignment of the loans to the borrowers with attendant security interests on March 21, 2020.

Court Cannot Interpret Conditions Of Advertisement Contrary To Plain Language Of The Same: Bombay High Court

Case Title: Ashok Mallinath Halsangi v. The State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 247

A Division bench of the Bombay High Court comprising of Justice A.S. Chandurkar and Justice Jitendra Jain while deciding a Writ Petition in the case of Ashok Mallinath Halsangi & Ors vs State of Maharashtra & Ors held that the court in the garb of judicial review cannot sit in the chair of appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.

Bombay High Court Upholds Renaming of Aurangabad and Osmanabad to Chhatrapati Sambhajinagar and Dharashiv

Case Title: Mohammed Mushtaq Ahmed v. Union of India and Ors. with Shaikh Masud Ismail Shaikh and Ors v. Union of India and Ors. with connected matters

Citation: 2024 LiveLaw (Bom) 248

The Bombay High Court upheld the Maharashtra government's notifications officially renaming Aurangabad city and revenue areas to Chhatrapati Sambhajinagar and Osmanabad city and revenue areas to Dharashiv respectively.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor while pronouncing the judgment dismissing a batch of pleas challenging the state government's notifications of the changed names stated -

"In view of the discussion made and reasons given, we have no hesitation to conclude that the impugned notifications issued by the state government renaming Aurangabad and Osmanabad cities as Chhatrapati Sambhajinagar and Dharashiv cities and the revenue areas of Aurangabad and Osmanabad as revenue areas of Chhatrapati Sambhajinagar and Dharashiv do not suffer from any illegality or any other legal vice and thus no interference in the impugned notifications is warranted. The petitions being bereft of any merit are hereby dismissed. No costs."

The court held that the power to name a revenue area in terms of Section 4(1)(vi) of the MLRC will include the power to alter or vary the same as well.

The court opined that the power to alter the name of any object, such as revenue areas, is inherently linked to the authority's power to name it initially. If an authority has the statutory power to name a revenue area, it logically also possesses the power to change that name. The court further stated that the issue of renaming a revenue area, city, or town is not justiciable because the courts do not have the necessary tools to adjudicate such matters due to the lack of judicially manageable standards. The court can only review the proposed name if it is atrocious, it said.

Bombay High Court Rejects Petition Against Rules for In-Person Litigants

Case Title: Naresh Govind Vaze v. High Court of Bombay

Citation: 2024 LiveLaw (Bom) 249

The Bombay High Court upheld its Rules which require litigants desiring to appear in-person before the court to be certified as competent to assist the court without engaging an advocate by a Scrutiny Committee nominated by the Chief Justice.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain dismissed a writ petition challenging a Notification dated September 9, 2015 which notified the "Rules for Presentation and Conduct of Proceedings in Person by Parties."

“There is no blanket prohibition or bar for a party to appear in person before the Court. The Rules merely regulate the manner in which a party who desires to appear in person is required to take steps to facilitate the same. The modalities prescribed are merely regulatory in nature with an object that the time of the Court while hearing a party-in-person is not spent on unnecessary details and that the party-in-person is found broadly in a position to render necessary assistance to the Court for deciding his/her matter”, the court held.

Bombay High Court Initiates Suo Moto PIL Over Alleged Illegalities In Tender Process For Ambulance Fleet

Case Title: In Re: Contract for Emergency Medical Services

Citation: 2024 LiveLaw (Bom) 250

The Bombay High Court initiated a suo moto PIL regarding alleged illegalities in the state government tender process for supply and operation of emergency medical services and ambulances. The tender to 'build, finance, operate and transfer' is connected to the 'Dial 108' ambulance project under Maharashtra Emergency Medical Services (MEMS).

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor converted a PIL filed by an NCP (Sharad Pawar) worker challenging the tender to a suo moto PIL and decided to proceed without the petitioner's involvement.

“Having regard to the overall facts and circumstances of the case, we are of the opinion that cognizance of the issues raised in the PIL petition should be taken but not at the instance of the petitioner”, the court stated.

Municipality Can't Shirk Constitutional Duty To Provide Water: Bombay High Court Directs 1 Lakh Litres Daily Supply To Gorai Villagers

Case Title: Gorai Villagers Welfare Association v. Hydraulic Engineer, Municipal Commission of Greater Mumbai

Citation: 2024 LiveLaw (Bom) 251

The Bombay High Court directed the Brihanmumbai Municipal Corporation (BMC) to employ 10 tankers of 10,000 litres on a daily basis to ensure the continuous supply of 1,00,000 litres of potable water to residents of Gorai village, consisting of around 2000 families.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor was hearing a PIL shedding light on the acute shortage of drinking water faced by residents of Gorai village, Borivali (West). At least 2005 families in the area are deprived of access to clean drinking water, the court noted.

“Thus, a distinct duty constitutionally as well as statutory has been cast on the Municipal Corporation to ensure that the residents within its limits are provided with adequate and proper access to potable water to be used for domestic purposes. No municipality in view of the aforesaid provisions can shirk off its shoulders, the certain responsibility and duty cast on it”, the court observed.

Bombay High Court Grants Bail To Alleged Drug Supplier Booked In Cordelia Cruise Drug Raid Case

Case Title: Abdul Kadar Shaikh v. Union of India

Citation: 2024 LiveLaw (Bom) 252

The Bombay High Court granted bail to one Abdul Kadar Shaikh, an alleged drug supplier and one of the accused in the 2021 Cordelia cruise ship drug case.

Justice NJ Jamadar observed that there were doubts regarding the substance seized from the accused, and he had undergone prolonged incarceration with little likelihood of the trial concluding within a reasonable period.

“As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out”, the court observed.

The court also observed that while the weight attached to panch witness' testimony would be determined during trial, the extensive use of the same witness by a premier agency could potentially affect the search and seizure process.

Bombay High Court Orders Maharashtra to Enhance Infrastructure for E-Mulakaat System in Prisons

Case Title: Peoples' Union for Civil Liberties & Anr. v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 253

The Bombay High Court directed the state government to ensure the availability of essential infrastructure to support the implementation of the e-mulakaat system in prisons to enable lawyers and family members to communicate with inmates virtually using video conferencing.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor disposed of a PIL filed by the Peoples' Union for Civil Liberties after the state government's issuance of a government resolution (GR) providing for e-mulakaats and smart card calling facilities for prisoners statewide.

“The State Government shall implement the provisions contained in the Government Resolution dated 22nd March 2024 in all the prisons throughout the State of Maharashtra and shall also provide adequate infrastructure, wherever required, so that the Government Resolution dated 22nd March 2024 is implemented in its letter and spirit and all the inmates in the prisons are given access to phone calls and e-mulakaat facilities”, the court directed.

The GR dated March 22, 2024 contains provisions for phone calls and e-mulakaat (electronic meeting) facilities for prisoners, excluding Pakistani prisoners.

The PIL sought directions to enforce the provisions of telephonic and electronic modes of communication as outlined in clause 8.38 of the Model Prison Manual, 2016, across all prisons in Maharashtra and to challenge the decision to discontinue such communication methods.

Capital Gain Tax Not Payable On Transfer Of Shares By Way Of Gift: Bombay High Court

Case Title: M/s. Jai Trust v. Union of India

Citation: 2024 LiveLaw (Bom) 254

The Bombay High Court held that capital gain tax is not payable on the transfer of shares by way of gift.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that Section 45 of the Income Tax Act provides that any profits or gains arising from the transfer of a capital asset have to be considered by the assessee. Only when there is consideration received can the profit or gain be measured. A gift is commonly known as a voluntary transfer of property by one person to another without any consideration. A gift does not require consideration, and if there is consideration for the transaction, it is not a gift.

Compassionate Appointment Can Only Be Claimed in Accordance with the Existing Policy And Not As A Matter Of Right: Bombay HC

Case Title: Sau. Asha wd/o Haridas Katwale & Ors. v. Manager (Mines), M/s Western Coalfields Ltd. Bhadrawati & Ors.

Citation: 2024 LiveLaw (Bom) 255

A division bench of the Bombay High Court comprising of Justice Avinash G. Gharote and Justice. M.S. Jawalkar while deciding a writ petition held that compassionate appointment can only be claimed in accordance with the existing policy and not as a matter of right

Bombay High Court Orders Repatriation Of 7-Year-Old Girl To Father's Custody In USA, Says Mother Abducted Her For Own Interest

Case Title: ABC v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 256

The Bombay High Court ordered the repatriation of a seven-year-old child to the United States of America (USA) in custody of her father who had been granted sole custody by a court in USA.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak criticized the mother's act of unilaterally relocating the daughter to India despite pending legal proceedings in USA, opining that she abducted the child.

“story weaved and the scheme designed by wife to return to India by abducting Miss 'R', unmindful of the ill-consequences of the said act, is not acceptable it being devoid of merits. The said action of the wife was intended to serve her own interest, not the child's”, the court observed.

The court referred to the observations in case of Philip David Dexter that when the mother is the abducting parent, it is common for her to claim that the matrimonial bond has broken down, often citing ill-treatment and domestic abuse by the male spouse, posing a risk to the child's mental or physical health. The abducting parent may justify their actions by resorting to covert operations, deceiving the spouse and the courts, and seeking refuge in their home country where familial support is available.

The court held that these observations are directly applicable to the present case.

Employers Must Realise Difficulties Women Face During Childbirth: Bombay High Court Directs AAI To Grant Maternity Benefit To Employee For Third Childbirth

Case Title: Airports Authority of India Workers Union and Anr. v. Under Secretary, Ministry of Labour, Govt. of India and Anr.

Citation: 2024 LiveLaw (Bom) 257

The Bombay High Court observed that employers must acknowledge the physical challenges working women face during pregnancy and while caring for their children and provide all benefits to which they are entitled to facilitate the childbirth.

“Whatever be the nature of their duties, their avocation and the place where they work, they must be provided with all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth”, the court observed.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain directed Airports Authority of India to grant maternity benefit within eight weeks to an employee for her third childbirth as her first child was born before she joined AAI and she didn't avail the benefits for the second childbirth.

Prima Facie Harmful To Secular Structure Of Country: Bombay High Court Orders Removal Of Allegedly Defamatory Posts Calling For Boycott Against Malabar Gold

Case Title: Malabar Gold Limited v. Kajal Shingala & Ors.

Citation: 2024 LiveLaw (Bom) 258

The Bombay High Court granted interim relief to Malabar Gold Limited and directed removal of prima facie defamatory social media posts making derogatory comments about the company's CSR initiatives calling for a boycott.

Justice Bharati Dangre criticized the defendant for selectively choosing one photograph that captures scholarships program extended to girls from the Muslim community while ignoring the broader initiative of empowering girls through education.

The court remarked that the quote by Martin Luther King Jr. is squarely applicable to the present case – “Darkness cannot drive out darkness...only light can do that. Hate cannot drive out hate and only love can do that…”

This selective posting is damaging the reputation and goodwill of the plaintiff, with the potential to create divisions in society, the court observed.

“The Defendant No.1 may carry her own opinion on an issue, but by uploading only one particular photograph out of the entire stack of photographs clicked, when the scholarships were conferred upon the girl child across wide spectrum, without verifying the veracity of post, definitely would cause harm to the secular societal structure of the country and in particular when the post prima facie is baseless”, the court said.

Moreover, the dissemination of misleading information on various social media platforms is as an intentional effort to harm the plaintiff's reputation, the court opined.

Merely Brandishing Newspaper Cuttings Doesn't Prove Sharing Commercial Expertise: Bombay High Court

Case Title: Hindustan Export & Import Corporation Private Limited Versus The Deputy Commissioner of Income-tax

Citation: 2024 LiveLaw (Bom) 259

The Bombay High Court held that merely brandishing newspaper cuttings does not amount to proof of sharing commercial expertise with its French counterpart as mandated by Section 80-O of the Income Tax Act.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that Section 80-O was inserted in place of Section 85C, which was deleted by the Finance (No. 2) Act, 1967. While moving the bill relevant to the Finance Act No. 2 of 1967, the then Finance Minister highlighted the fact that fiscal encouragement needs to be given to Indian industries to encourage them to provide technical know-how and technical services to newly developing countries.

Bombay High Court: MBBS Admission Retained Despite False OBC Certificate | Cites National Interest

Case Title: Lubna Shoukat Mujawar v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 260

The Bombay High Court refused to revoke the MBBS admission of a doctor though it was obtained under the OBC-Non-Creamy Layer Certificate based on false information. The Court observed that cancelling her admission would cause loss to the nation when the petitioner has qualified as a doctor.

“the Petitioner has completed the course of MBBS and therefore, it would not be proper at this stage to withdraw the qualification obtained by the Petitioner moreso when the Petitioner has qualified as a Doctor. In our country, where the ratio of the Doctors to the population is very low, any action to withdraw the qualification obtained by the Petitioner would be a national loss since the citizens of this country would be deprived of one Doctor”, the court observed.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain, however, cancelled the Non-Creamy Layer Certificate and reclassified her admission to the Open Category, directing her to pay the difference in fees as well as a penalty of Rs. 50,000 for false representation.

“We are conscious of high competition in admission to medical course and we are also conscious about high expenses to be incurred to enrol for the said course under the Open Category. However, that would not justify that the student should obtain the unfair means nor would it justify the action of the parents to be a part of the unfair means for getting the admission under the OBC Category”, the court said.

The court was dealing with a writ petition challenging the cancellation of petitioner's admission to a MBBS course on grounds of an invalid NCL certificate.

Bombay High Court Refuses To Quash Case Against Former Andhra Pradesh CM Chandrababu Naidu For Allegedly Assaulting Prison Personnel

Case Title: Nara Chandrababu Naidu v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 261

The Aurangabad bench of the Bombay High Court declined to quash a criminal case against former Andhra Pradesh Chief Minister N Chandrababu Naidu and Telugu Desam Party (TDP) leader Nakka Ananda Babu.

The case dates back to 2010 when the two were accused of assaulting prison personnel during their transfer to the Aurangabad Central Jail following their arrest in another case.

A division bench of Justice Mangesh Patil and Justice Shailesh P Brahme observed that there is sufficient evidence indicating the complicity of both Naidu and Babu in the alleged crime.

“we have no manner of doubt that there is enough material to reveal complicity of both the applicants in commission of the crime. The F.I.R. expressly alleges about the applicant-accused no. 1 having instigated the fellow prisoners and even threatened of there being war between the two states and the incident having taken place in the manner which has been alleged. There are statements of the witnesses also expressly attributing role to these applicants. There are injury certificates of 12 police personnel”, the court observed.

The court rejected the applications filed by them seeking the quashing of the FIR lodged against them with the Dharmabad police in Maharashtra's Nanded district.

University Must Collect Funds From Alternative Sources To Discharge Pensionary Benefits Under Previous Revised Pay Commission: Bombay High Court

Case Title: Prachi P. Kulkarni v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 262

The Bombay High Court bench of Justice Nitin Jamdar and Justice M.M. Sathaye held that upon the implementation of the 7th pay commission, the Shreemati Nathibai Damodar Thackersey Women's University was duty-bound to initiate measures to secure funds and establish a corpus.

It held that notwithstanding the absence of grants, the institution bears the responsibility to explore innovative avenues for fundraising to meet its obligations concerning payment under the revised pay commission.

Dismissal From Service For Being Absent From Place Of Work For Just Few Hours Is Disproportionate: Bombay High Court

Case Title: Bombay Dyeing & Manufacturing Co. Ltd. v. Yogesh Vinayak Tipre

Citation: 2024 LiveLaw (Bom) 263

The Bombay High Court single bench of Justice Sandeep V. Marne held that the penalty of dismissal from service is disproportionate for being absent from the place of work for just a few hours.

The Petitioner, engaged in manufacturing DMT, a raw material for synthetic yarn, operates a DMT manufacturing plot. The Workman, employed as an Accounts Assistant (Weighbridge) in the Petitioner's DMT factory, was issued a show cause notice on 30 June 1999, alleging misconduct for absence during a heavy workload period without permission.

Considering factors such as the Workman's age, now 54 years, and the protracted litigation spanning approximately 25 years, reinstatement with the Petitioner was held to be impractical and not in the Workman's best interest.

Despite the Workman's proven misconduct and the delay in raising the industrial dispute, the High Court held that he was not completely exonerated. His last drawn wages, along with the wages paid during the pendency of the case, served as the basis for calculating the compensation. After considering these factors, the High Court decreed a lump sum compensation of Rs. 25,00,000 to be paid by the Petitioner to the Workman.

The Workman was permitted to withdraw the awarded compensation from the maturity value of the backwages deposited in Court. The balance amount from the invested backwages shall be refunded to the Workman.

Burden Of Proving Completion Of 240 Days of Service In Any Calendar year rests On Petitioner: Bombay High Court

Case Title: Prakash S. Hande v. Hindustan Lever Limited

Citation: 2024 LiveLaw (Bom) 264

A single bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a writ petition in the case of Prakash S. Hande v. Hindustan Lever Limited reiterated that the burden of proving completion of 240 days of service in any calendar year rests on the Petitioner.

The court observed that the Petitioner admitted to deliberate breaks in his service with the Respondent from June 1, 1987 to March 21, 1998, indicating that his service during those years was not continuous. Although the Petitioner claimed to have completed 240 days of continuous service from December 9, 1994 to November 7, 1995, the burden of proving this rested on him.

Bombay HC Sets Aside Penalty On Tata Chemicals For Substandard Iodized Salt, Directs FSSAI To Ensure Procedural Compliance Of Sample Analysis

Case Title: TATA Chemicals Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 265

The Nagpur Bench of Bombay High set aside a penalty of Rs. 2 Lakhs imposed on Tata Chemicals and other companies for manufacturing and selling substandard iodized salt.

Justice Anil L Pansare observed that the authorities did not follow the mandatory time limit for lab analysis of samples.

“In the present case, the RFL has apparently not followed the time limit stipulated in the Rules of 2011. The Report, thus, suffers from non-compliance of mandatory provisions. The penalty cannot be imposed on the basis of such report. The Adjudicating Officer as also the Tribunal have rendered unsustainable finding”, the court said.

The court directed the Food Safety and Standards Authority of India to issue advisories or circulars ensuring adherence to procedural standards in laboratory analyses.

“The Food Safety and Standards Authority of India shall issue advisory or office order or circular in terms of what has been noted in the body of the order.”

No Change In Opening And Closing Stock Of NCDs; Bombay High Court Quashes Reassessment Notice

Case Title: Upesi Ventures Ltd. v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 266

The Bombay High Court quashed the reassessment notices as there was no change in the opening and closing stock of the non-convertible debts (NCDs).

The Bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the reopening of assessment by the notice was merely on the basis of a change of opinion of the AO. The change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment.

Bombay High Court Quashes Reassessment Notices Issued Merely On Basis Of Information Received From Directorate General Of GST

Case Title: KEC International Ltd. v. UOI

Citation: 2024 LiveLaw (Bom) 267

The Bombay High Court quashed the reassessment notices issued merely on the basis of information received from the Directorate General of GST.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the AO is only referring to the information received from the Directorate General of GST. There is absolutely nothing to indicate that he independently applied his mind to the material received or that he has analysed the response from Petitioner with the material received, which reflects total non-application of mind.

Bombay High Court Grants Bail To Bangladeshi National Accused Of Illegal Entry Into India, Possession Of Commercial Quantity Of Drugs

Case Title: Mohd. Murad Oliar Shaikh v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 268

The Bombay High Court granted bail to a Bangladeshi national accused of obtaining entry to India without a passport and visa, forging an AADHAAR card and PAN card, and possessing a commercial quantity of contraband drugs.

Justice RN Laddha observed –

“In the present case, there is no disagreement regarding the applicant's detention since 13 May 2022. It is undisputed that the applicant is not a citizen of India. It is acknowledged that the applicant was not in possession of the contraband material. There is no material linking the applicant to accused No.1, who allegedly had a commercial quantity of contraband material. The alleged forged Pan Card and Aadhar Card were already seized. Furthermore, the applicant's arrest occurred approximately three months after accused No.1's arrest. Given these circumstances and the pending trial, there appears to be no valid reason to continue detaining the applicant.”

[NDPS Rules] Even If Exporter Has License To Sell Drugs For Medical Purpose, Separate Authorisation To Export Is Mandatory: Bombay High Court

Case Title: Gudipati Subramaniam v. Union of India and Anr.

Citation: 2024 LiveLaw (Bom) 269

The Bombay High Court denied bail to an exporter and an Iraqi national who were arrested by Mumbai Customs' Central Intelligence Unit for alleged attempt to illegally export 4,224 kg of psychotropic substance in February 2023.

Justice NJ Jamadar held that obtaining authorization under Rule 58 of the NDPS Rules, 1985 for export of psychotropic substances is mandatory even if the exporter has a licence to possess and sell the drugs for medicinal purposes.

“The use of the terms 'licence', 'permit' or 'authorization;, disjunctively, indicates that these terms have not been used interchangeably…If the submissions sought to be canvassed on behalf of accused Nos.1 and 4 that a 'licence' subsumes in its fold the “authorization” envisaged by Rule 58 of the NDPS Rules, 1985, the Parliament would not have used the terms licence and authorization disjunctively. On a plain construction of Section 8(c) of the NDPS Act, 1985 export of a psychotropic substance sans licence, permit or authorization under the governing rules or orders is expressly prohibited”, the court stated.

The court however, granted bail to co-accused freight manager Ravi Kavthankar, noting that it was "debatable" whether he was aware of the alleged offences.

Leave Encashment Akin To Salary, Employee Cannot Be Deprived Without Valid Statutory Provision: Bombay High Court

Case Title: Dattaram Atmaram Sawant v. Vidharbha Konkan Gramin Bank

Citation: 2024 LiveLaw (Bom) 270

Leave encashment is not a bounty but right earned by employee, the Bombay High Court observed while affirming the entitlement of two former employees of Vidharbha Konkan Gramin Bank to encash their accrued privilege leave, despite their resignations from the bank.

A division bench of Justice Nitin Jamdar and Justice MM Sathaye allowed the employees' writ petitions and directed the bank to pay the amount for leaves accumulated by two employees who resigned from the bank.

“Leave encashment is akin to a salary, which is property. Depriving a person of his property without any valid statutory provision would violate Article 300 A of the Constitution of India. Leave encashment paid on account of unutilised leave is not a bounty. If an employee has earned it and the employee has chosen to accumulate his earned leave to his credit, then encashment becomes his right”, the court observed.

Search U/s 132 Is Invalid If Material Considered For Authorizing Search Is Irrelevant And Unrelated: Bombay High Court

Case Title: Echjay Industries Pvt Ltd v. Union of India

Citation: 2024 LiveLaw (Bom) 271

The Bombay High Court quashed the search proceedings authorized by CBDT u/s 132(1) along with consequential notices and further actions on the ground that the material considered for authorizing the search is irrelevant and unrelated, and that “the reasons recorded, only indicates a mere pretence”.

Finding that the reasons forming part of the satisfaction note must satisfy the judicial conscience, the Division Bench comprising Justice K. R. Shriram and Justice Dr. Neela Gokhale observed that “the note also does not contain anything altogether regarding any reason to believe, on account of which, there is total non-compliance with the requirements as contemplated by Section 132(1) of the said Act which vitiates the search and seizure. It does not fulfil the jurisdictional pre-conditions specified in Section 132 of the Act”.

Refusal To Condone Delay In filing Revised ITR by CBDT , Filed Post-NCLT Order Is Unreasonable: Bombay High Court

Case Title: CG Power And Industrial Solutions Ltd v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 272

The Bombay High Court quashed the CBDT's order rejecting the application filed by CG Power and Industrial Solutions Ltd seeking condonation of delay in filing returns of income based on recast of accounts pursuant to NCLT's order.

The High Court clarified that any assessment order passed under Sections 143(3) or 144C as well as the consequent notices or orders for AYs for which re-casted accounts have been filed, will not survive.

The Division Bench comprising Justice K.R. Shriram and Justice Dr. Neela Gokhale observed that when the accounts were recast based on NCLT's order and such accounts were accepted by NCLT and also filed with the RoC under MCA “how could the Income Tax Department raise such frivolous objections that the delay in filing the returns of Income based on the re-casted accounts should not be even condoned”.

Bombay High Court Permits Liquor Sale In Mumbai On June 4 After Declaration Of Lok Sabha Election Results

Case Title: M/s. Indian Hotel and Restaurant Association (AHAR) v. Collector of Mumbai (City) State Excise Department & Anr

Citation: 2024 LiveLaw (Bom) 273

The Bombay High Court directed that the restriction on the sale of alcohol in Mumbai on June 4, the day of counting votes for the Lok Sabha elections, will remain only until the results are declared.

A vacation bench of Justice Nitin Borkar and Justice Somasekhar Sundaresan modified the existing orders of the Mumbai City and Mumbai Suburban District Collectors that had declared the entire day as a "dry day."

Bombay High Court Grants One-Week Temporary Bail To Life Convict For Law Entrance Exam

Case Title: Sohail Salim Ansari v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 274

The Bombay High Court granted temporary bail to Sohail Salim Ansari, a convict serving a life sentence, to enable him to appear for the Maharashtra Common Entrance Test (MH-CET) scheduled on May 30, 2024 for admission to the five-year law course.

A vacation bench of Justice NR Borkar and Justice Somasekhar Sundaresan observed, “It appears that the Applicant is in jail for about nine years. It further appears that during trial he was on bail for some period and he did not misuse the liberty granted to him. Considering the said facts, we are inclined to release the Applicant on temporary bail for a period of one week.”

UGC Regulations | Chairman Of College Governing Body Cannot Delegate Duty To Appoint Principal: Bombay High Court

Case Title: Dr. Naveed-Us-Sahar v. Dr. Babasaheb Ambedkar Marathwada University

Citation: 2024 LiveLaw (Bom) 275

The Aurangabad bench of the Bombay High Court held that the Chairman of the governing body of a college cannot nominate a representative to his seat on the Selection Committee for appointment of the principal of the college.

A division bench of Justice Vibha Kankanwadi and Justice SG Chapalgaonkar dismissed a writ petition filed by one Dr. Naveed-Us-Sahar challenging the rejection of her appointment to the post of Principal at the Marathwada College of Education, Aurangabad. The Marathwada University had rejected the appointment as the Chairman nominated a proxy in the Selection Committee.

“When composition of the Selection Committee is specifically prescribed under the UGC regulations, presence of Chairperson, who is also Chairman of the governing body is mandated, then it would be difficult to accept petitioner's contention that Chairperson's nominee can replace him. Pertinently, there is no provision enabling Chairman to delegate his power to preside over Selection Committee constituted under UGC regulations”, the court held.

Trade Marks Registrar Must Pass Speaking Order With Reasons While Adjudicating On Application For Registration Of Trade Mark Assignment: Bombay High Court

Case Title: Electronica India Ltd. v. Electronica Hitech Machines Pvt. Ltd. & Anr.

Citation: 2024 LiveLaw (Bom) 276

The Bombay High Court held that the Trade Marks Registrar cannot record the name of an assignee in the Register without passing a speaking order on the application for registration of assignment of trademark after considering objections and recording reasons.

Justice RI Chagla ruled in favour of Electronica India Ltd., setting aside the decision of the Trade Marks Registry to allow the registration of assignment of “Electronica” trademarks in favour of Electronica Hitech Machines Pvt. Ltd. without any speaking order.

The court found that there was no formal order passed by the Trade Marks Registry on the Electronica Hitech's application for trademark registration.

“The impugned orders/communications of the Respondent No. 2-Registrar of the Trade Marks, Mumbai allowing the requests of Respondent No. 1 in Form TM-24 are set aside. The Respondent No. 2 (Registry) shall consider the applications in Form TM-24 de novo after granting the Petitioner an opportunity of being heard and thereafter, passing a speaking order on the requests of the 1st Respondent in Form TM-24 which shall be in conformity with Section 45 of the Trade Marks Act, 1999”, the court directed.

'Transit Rent' Can't Be Considered As 'Revenue Receipt', Not Liable To Be Taxed: Bombay High Court

Case Title: Sarfaraz S. Furniturewalla v. Afshan Sharfali Ashok Kumar & Ors.

Citation: 2024 LiveLaw (Bom) 277

The Bombay High Court held that 'Transit Rent' is not to be considered a revenue receipt and is not liable to be taxed. As a result, there will be no question of the deduction of TDS from the amount payable by the developer to the tenant.

The bench of Justice Rajesh S. Patil observed that the ordinary meaning of rent would be an amount that the tenant or licensee pays to the landlord or licensee. In the present proceedings, the term used is “transit rent," which is commonly referred to as a hardship allowance, rehabilitation allowance, or displacement allowance, which is paid by the developer or landlord to the tenant who suffers hardship due to dispossession.

June

Birth Of First Child Before Joining Service not a bar for availing Maternity Leave After Joining Service Under AAI Regulations: Bombay High Court

Case Title: Airports Authority of India Workers Union & Anr v. Under Secretary, Ministry of Labour & Anr.

Citation: 2024 LiveLaw (Bom) 278

A Division bench of the Bombay High Court comprising of Justice A. S. Chandurkar and Justice Jitendra Jain in the case of Airports Authority of India Workers Union & Anr Vs The Under Secretary, Ministry of Labour & Anr held that birth of a first child before joining the service is not relevant for considering of maternity leave after joining the service. The object of Maternity Benefit Regulation under AAI Regulations is not to curb the population but to give such benefit only on two occasions during the service period.

The court further held that

“The object of the Maternity Benefit Regulation which is posed for our consideration is not to curb the population but to give such benefit only on two occasions during the service period and, therefore, it is in that context that the condition of two surviving children is imposed”

Thus the court held that the birth of the first child from the first marriage before joining the service would not be relevant for considering the claim of maternity leave post her joining the Respondent for the purposes of the 2003 Regulation.

With the aforesaid observations, the court allowed the writ petition.

No Irreversible Actions In Winding Up, Company Court Can Transfer Proceedings To NCLT: Bombay High Court

Case Title: Omkara Assets Reconstruction In the matter of ICICI Bank Ltd. v. Classic Diamonds (India) Ltd.

Citation: 2024 LiveLaw (Bom) 279

The Bombay High Court bench of Justice Abhay Ahuja held that as long as no irreversible actions, such as actual sales of immovable or movable properties, have occurred, the Company Court retains the discretion to transfer proceedings to the NCLT.

The bench held that it is only where the winding up proceedings have reached the stage where it would be irreversible, making it impossible to set the clock back, that the Company Court must proceed with the winding up instead of transferring the proceedings to NCLT.

Bombay High Court Restrains Release Of Film “Hamare Baarah” Allegedly Derogatory To Islamic Faith Till June 14

Case Title: Azhar Basha Tamboli Ltd & Ors v. Ravi S Gupta & Ors.

Citation: 2024 LiveLaw (Bom) 280

The Bombay High Court restrained the release of film “Hamare Baarah” on any public platform until June 14, 2024.

A division bench of Justices NR Borkar and Kamal Khata was dealing with a writ petition against the Central Board of Film Certification (CBFC) seeking to revoke the certification granted to the film and thereby injunct it from being released.

“Respondent Nos. 1 to 6 are restrained from in any manner exhibiting, circulating or making available for viewership to the general public the film in question, namely “Hamare Baarah” on any public forum/platform including the platforms of the Respondent Nos. 10 to 12, till 14^th June 2024”, the court directed.

Bombay High Court Allows Release Of Film 'Hamare Baarah' After Makers Agree To Delete Certain Controversial Dialogues

Case Title: Azhar Basha Tamboli v. Ravi S Gupta & Ors

Citation: 2024 LiveLaw (Bom) 281

The Bombay High Court allowed the release of the film Hamare Baarah after the makers agreed to delete certain controversial dialogues.

A vacation bench of Justice Kamal Khata and Justice Rajesh S Patil was dealing with a writ petition against the Central Board of Film Certification (CBFC) seeking to revoke the certification granted to the film and thereby injunct it from being released.

“We are of the view that if an individual such as in this Petition is permitted to stall the release of movies which have been duly certified by the CBFC it would encourage holding film producers to ransom,” the court said.

Withholding Of Salary Or Emoluments Does Not Fall Within The Ambit Of Offence Of Cheating: Bombay High Court

Case Title: Rajiv Bansal & Ors vs State of Maharashtra and Ors

Citation: 2024 LiveLaw (Bom) 282

A single judge bench of the Bombay High Court comprising of Justice N. J. Jamadar in the case of Rajiv Bansal & Ors vs State of Maharashtra and Ors held that withholding of salary or emoluments does not fall within the ambit of offence of cheating.

The court held that for the offence of cheating, there needs to be deceit coupled with injury. Cheating involves deception, fraudulent and dishonest inducement and thereby making the person deliver any property or to consent that any person shall retain any property. The court further held that

“The withholding of a portion of the salary/emoluments by no stretch of imagination can fall within the dragnet of the offence of cheating as the employer cannot be said to have either deceived the employee or fraudulently, or dishonestly induced the employee to deliver the property or give consent to any person to retain the property or intentionally induced the employee to do or omit to do anything, which the employee would not do or omit, if he was not so deceived.”

The court further held that to constitute the offence of cheating, the intention of the accused should be dishonest from the inception of the transaction. However, the act of AIL to deduct the salary/emoluments was in exercise of its authority as an employer. Terming such deduction as illegal is different than terming such deduction to be cheating.

Long-Term Continuance Of Employment Does Not Create Inherent Right To Regularization: Bombay High Court

Case Title: The Chief Officer, Pen Municipal Council & Ors. v. Shekhar B. Abhang & Ors.

Citation: 2024 LiveLaw (Bom) 283

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a writ petition in the case of The Chief Officer, Pen Municipal Council & Ors. v. Shekhar B. Abhang & Ors. held that regularization of services cannot be claimed merely based on long-term continuance of employment as this does not create any inherent right to regularization.

The court relied on the landmark Supreme Court Judgment of Secretary, State of Karnataka & Ors. v. Umadevi & Ors. which established that public employment must adhere to the principles of equality enshrined in Articles 14 and 16 of the Constitution of India, and regularization can only be considered in cases of irregular (not illegal) appointments against duly sanctioned posts where the employees have worked for ten years or more without court orders.

"Right To Decent Last Rites": High Court Directs Municipal Commissioner To Personally Address Issue Of Inadequate Burial Grounds In Mumbai

Case Title: Shamsher Ahmed Shaikh & Ors. v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2024 LiveLaw (Bom) 284

The Bombay High Court directed the Commissioner of Municipal Corporation of Greater Mumbai (MCGM) to personally look into the issue of inadequate burial grounds in Mumbai and take necessary steps to identify and acquire new burial plots.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar expressed disapproval over the Municipal Corporation's lack of action, emphasizing the importance of the right to a decent burial.

“Such callousness on the part of the authorities cannot be appreciated. Right of dead to be given a decent and respectful last rites is as important as any other right available when he is alive. Moreover, it is the statutory duty and obligation cast on The Municipal Corporation to provide adequate place for burial of the dead. The authorities of the Municipal Corporation, thus, cannot shirk their shoulders away from such statutory responsibility”, the court stated.

The court was dealing with a PIL regarding paucity of space for adequate burial grounds in the city.

Record Indicates They Conspired To Transform India Into Islamic Country: Bombay High Court Denies Bail To Alleged PFI Members

Case Title: Razi Ahmed Khan v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 285

The Bombay High Court denied bail to three alleged members of the banned organization Popular Front of India (PFI) booked for allegedly conspiring to “overawe the Government by use of criminal force” and “transform India into an Islamic country by 2047”.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak rejected the appeals filed by three accused against the orders of the Special Judge, Nashik, which had previously rejected their bail applications.

“Record of investigation indicates that, the Appellants in connivance with other Accused persons conspired to overawe the Government by use of criminal force. The first information report is self-eloquent. There is more than sufficient material available on record in the form of statements of witnesses and the documents seized from the electronic devices of the Accused persons that, they indulged into activity of inciting like minded people to join them to overawe the Government by use of criminal force. They also conspired to transform India into an Islamic country by 2047. They are not only propagators but actively intending to implement the Vision-2047 document of their organization”, the court observed.

Abortion Can Be Allowed Where Continuing Pregnancy Would Cause Grave Mental Injury: Bombay High Court

Case Title: XYZ v. The Dean of BJ, Government Medical College and Others

Citation: 2024 LiveLaw (Bom) 286

The Bombay High Court held that abortion can be allowed in cases where continuing pregnancy would cause grave mental injury to the pregnant woman.

The division bench of Justice N.R. Borkar and Justice Somasekhar Sudaresan held that such allowance cannot be limited to pregnancy emanating from sexual assault.

The 19 years old petitioner had approached the High Court seeking permission to terminate her 25-weeks pregnancy which had resulted from a consensual relationship.

Prima Facie Unauthorised Use Of Karan Johar's Name: Bombay High Court Restrains Release Of Film "Shaadi Ke Director Karan Aur Johar"

Case Title: Karan Johar v. IndiaPride Advisory Pvt. Ltd. And Ors.

Citation: 2024 LiveLaw (Bom) 287

The Bombay High Court restrained the release of the upcoming film “Shaadi Ke Director Karan Aur Johar”, and any promotional material finding a strong prima facie case that the makers have made unauthorised use of filmmaker Karan Johar's name and personality.

The court also restrained the makers from using Johar's name or any other attributes or reference to the name “Karan Johar” in any manner, in the title of the film or in the promotion directly or indirectly including but not limited to all promotional materials etc. which is intended to be sold, promoted or otherwise distributed in relation to the film.

Justice RI Chagla said in his order, “In my view a strong prima facie case has been made out by the plaintiff to protect his personality rights which are vested in him considering that he has the status of celebrity as apparent from several blockbuster films which he has directed and produced. There is no manner of doubt that the plaintiff has played a role in transforming the Bollywood film industry and launched careers of several successful actors. I have to doubt that prima facie the subject film is a direct reference to the plaintiff and makes unauthorised use of plaintiff's name.”

The court observed that the use of Karan Johar's name makes it evident that the makers are using the personality of Karan Johar.

“The defendants are creating confusion in the minds of the public at large that it is associated with him as the general public will immediately identify and associate the use of the name “Karan” and “Johar” together in the title of the said film solely with the Plaintiff upon becoming aware of the title of the said film”, the court stated.

Bombay High Court Refuses To Stay BMCs Permissions For Animal Sacrifice At Shops And Markets On Bakrid

Case Title: Jiv Maitri Trust v. Union of India & Ors

Citation: 2024 LiveLaw (Bom) 288

The Bombay High Court declined to stay the implementation of a circular issued by the Brihanmumbai Municipal Corporation (BMC) permitting animal sacrifices at 67 private meat shops and 47 municipal markets during Bakrid on June 17, 2024.

A division bench of Justice MS Sonak and Justice Kamal Khata, while dealing with petitions seeking urgent stay on the BMC circular, noted that the petitioners mentioned the matter and sought urgent hearing through a praecipe (a written request for an urgent hearing).

The court noted that the praecipe does not seek any interim relief and simply seeks circulation of matter for urgent hearing. The court did not find this method appropriate for seeking relief. Oral application for interim relief cannot be entertained, the court said.

Blatant Contravention Of Provisions For Maintaining Case Diary: Bombay High Court Seizes Case Diary From Police, Directs DGP To Take Remedial Action

Case Title: Gopal C. Mehta & Ors. v. State Of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 289

Taking serious note of “blatant contraventions of the Circulars issued by the DGPMS as well as other statutory requirements” for maintenance of case diaries by the police, the Bombay High Court seized the improperly maintained case diary of a criminal investigation from the police and sent it to the DGP for remedial action.

A division bench of Justice AS Gadkari and Justice Neela Gokhale said that the investigating officer in the case had failed to comply with Section 172(1-B) of the CrPC and the circular issued by the Director General of Police, Maharashtra State (DGPMS) on February 12, 2024. The circular mandates police officers to maintain case diaries in the form of bound and numbered pages as per legal provisions.

“We direct the D.G.P.M.S. to take appropriate remedial action in this regard and to ensure strict compliance at least of its own Circulars by all the Police Officers in the State”, the court directed.

Substituting Legal Representative Of Deceased Employee By Another For Compassionate Appointment Is legal: Bombay High Court

Case Title: Kalpana and Ors. v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 290

A full bench of the Bombay High Court comprising of Anil S. Kilor, Anil L. Pansare and M.W.Chandwani, JJ., while answering the questions of law in the case of Kalpana and Ors. vs. State of Maharashtra, held that the prohibition on substituting name of one legal representative of deceased employee for compassionate appointment, by another legal representative is arbitrary & irrational.

The court observed that if the application submitted by one of the family members has already resulted in an order of appointment in favour of such an applicant, at that stage, substitution may not be permitted. However, where the application seeking appointment on compassionate basis is still pending consideration and if any application for substitution of name in place of the former one is rejected, it would amount to denial of appointment on compassionate ground contrary to the policy.

Bombay High Court Orders Bank of Baroda To Refund Rs 76 Lakh, Says Account Holder Not Liable For Unauthorized Transactions Due To Third Party Breach

Case Title: Jaiprakash Kulkarni v. The Banking Ombudsman and Ors.

Citation: 2024 LiveLaw (Bom) 291

The Bombay High Court directed the Bank of Baroda to refund Rs. 76,90,017 to a company and its director who lost the amount in a cyber fraud incident involving unauthorized electronic banking transactions for which no OTP was sent.

A division bench of Justice GS Kulkarni and Justice Firdosh P. Pooniwalla allowed a writ petition seeking refund of the amount observing –

“both as per the RBI Circular and the said Policy of Respondent No.2 (bank), the liability of the Petitioners in respect of the said unauthorized transactions would be zero as the unauthorized transactions have taken place due to a third party breach where the deficiency lies neither with Respondent No.2 nor with the Petitioners...In these circumstances, as per the RBI Circular and as per the Policy of Respondent No.2, the Petitioner is entitled to refund of the said amount from Respondent No.2.”

Bombay High Court Allows Slaughtering Of Animals For Bakri Eid In Protected Area Around Vishalgad Fort

Case Title: Hajrat Peer Malik Rehan Mira Saheb Dargah, Vishalgad v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 292

The Bombay High Court permitted the slaughtering of animals for the festival of Bakri Eid on June 17, 2024, in the protected area around the Vishalgad Fort in Kolhapur District.

A division bench of Justice BP Colabawalla and Justice Firdosh P. Pooniwalla granted interim relief to petitioners in petitions challenging the ban on animal slaughter in the area issued by various authorities, including the Director of Archaeology and Museums, Bombay, the Superintendent of Police, Kolhapur, and the Chief Executive Officer, Zilla Parishad, Kolhapur.

“We are of the opinion that at least for the festival of Bakri Eid which is on 17th June 2024, and Urus which is till 21st June 2024, the slaughtering of animals by the Petitioners can be permitted. However, we make it clear that the actual killing or sacrifices of animals or birds shall only take place in the closed premises at Gat No. 19 which is a private land owned by Shri Mubarak Usman Mujawar. The killing of animals and birds certainly should not be done in an open place or in a public place”, the court held.

The court said that interpreting the entire 333-acre area as a protected monument, which would prevent the residents within this area from cooking and consuming food, is absurd.

“It is not in dispute that in the protected area, namely, 333 acres 19 gunthas, there are about 575 people and about 107 families residing in Vishalgad…If we were to hold that the entire area of 333 acres and 19 gunthas was the “protected monument”, then under Rule 8(c), these 107 families, admittedly residing within the area of 333 acres 19 gunthas, would not be allowed either to cook or consume food. This would effectively mean that these 107 families would either have to starve or go outside their homes (beyond 333 acres 19 gunthas) and cook and consume their food. This interpretation would be absurd to say the least”, the court said.

Similar Trademark For Drug Treating The Same Ailment But Having Different Composition From Already Registered Trademark Is Deceptive: Bombay High Court

Case Title: Glenmark Pharmaceuticals Ltd. v. Gleck Pharma (OPC) Pvt Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 293

A single judge bench of the Bombay High Court comprising of Justice Firdosh P. Pooniwalla, held that structurally & phonetically similar trademark can't be registered for drug treating similar ailment but having different composition from already registered mark, as it may create confusion for consumers leading to potential side effects.

Bombay High Court Grants Temporary Injunction In Favor Of Pidilite In Infringement Suit For Cement Container Design

Case Title: Pidilite Industries Limited v. Astral Limited

Citation: 2024 LiveLaw (Bom) 294

The Bombay High Court granted ad interim injunction in favour of Pidilite Industries Limited (Pidilite) restraining Astral Limited (Astral) from infringing Pidilite's registered design of Coex plastic containers of its M-SEAL PV SEAL products.

Justice Firdosh Pooniwalla held, “the Plaintiff has made out a prima facie case for grant of ad-interim reliefs in terms of prayer (a) of the Interim Application. If the injunction as sought in prayer (a) is not granted, then grave loss, harm and prejudice would be caused to the Plaintiff as the Defendant would then continue to use the impugned container with the design of the Plaintiff.”

The court rejected the Defendant's argument that the Plaintiff's container design is a mere trade variant of a known design and cannot be protected under Section 19(1)(c) of the Designs Act. The court found this argument to be incorrect as the Defendant failed to show any prior design similar to the Plaintiff's design.

The court outlined three factors to determine if an article's design is a trade variant: the nature and size of the article, its utilitarian nature, and whether only minor changes are possible, which may still be substantial enough to render the design novel.

The court found that the Plaintiff's container design was not significantly similar to any known designs or combinations thereof. The features of the Plaintiff's design were substantially different and not minor or inconsequential, the court said. Additionally, the Defendant, being in the same trade, had not produced a container with a similar design until recently, supporting the originality of the Plaintiff's design, the court held. “The Defendant has failed to demonstrate that there is any prior design or one very similar to it that precedes the Plaintiff's design or that the Plaintiff has merely created a trade variant”, the court observed.

Bombay High Court Calls For Robust Mechanism To Impose Costs For Misuse Of Judicial Process In Rape Cases Stemming From Failed Relationships

Case Title: Saket Abhiraj Jha v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 295

Highlighting that rape cases stemming from failed relationships between adults waste the valuable time of both the police and the courts, the Bombay High Court called for a robust mechanism to impose heavy costs on individuals who misuse the judicial process.

Justice Pitale highlighted the recurring nature of such cases in urban areas like Mumbai, which leads to wastage of valuable time which can be otherwise utilized in investigating serious offences.

“With passage of time, the alleged victim and the accused come together, having resolved their differences and then the victim gives consent for grant of bail and even for quashing of such proceedings...This Court is of the opinion that in such cases a robust mechanism ought to be developed for imposing heavy costs on such individuals who end up wasting the time of the Investigating Authority as well as the Court. In an appropriate case, this Court shall proceed to pass such an order”, the court stated.

The court granted bail to one Saket Abhiraj Jha, who was arrested for various alleged offences, including rape, extortion, and defamation under the IPC and the Information Technology Act, 2000 (IT Act).

Indian Succession Act | Bombay High Court Larger Bench To Decide Whether Probate Of Will Can Be Revoked In Cases Not Covered In Section 263

Case Title: Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka

Citation: 2024 LiveLaw (Bom) 296

The Bombay High Court referred to a larger bench the question of whether explanations to Section 263 of the Indian Succession Act, 1925, which deals with the grounds on which probate of a will can be revoked or annulled for “just cause”, are exhaustive or merely illustrative.

Justice Manish Pitale referred the following questions to the larger bench –

“(I) Whether explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925, are exhaustive or illustrative, in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration?

(II) Whether circumstances not covered under explanations (a) to (e) to Section 263 of the Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration?

(III) Whether the judgements of learned Single Judges of this Court in the cases of George Anthony Harris vs. Millicent Spencer [AIR 1933 Bom 370] and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane [AIR 1997 Bom 275], lay down the correct position of law?”

[Commercial Courts Act] Plaint Can't Be Rejected For Bypassing Pre-Institution Mediation If It Genuinely Seeks Urgent Reliefs: Bombay High Court

Case Title: Chemco Plast Applicant/Defendant In the matter between: Chemco Plastic Industries Pvt. Ltd. v. Chemco Plast

Citation: 2024 LiveLaw (Bom) 297

The Bombay High Court dismissed an application filed under Order VII Rule 11 of the CPC, by defendant Chemco Plast seeking rejection of a trademark infringement suit filed against it by plaintiff Chemco Plastic Industries Pvt. Ltd.

The court observed that the suit is not barred under section 12A of the Commercial Courts Act (mandatory mediation) as it contemplates urgent interim reliefs.

“this Court finds that on the basis of the pleadings in the plaint, the documents filed therewith, as also on the basis of the pleadings in the application for interim reliefs, the plaintiff has indeed made out enough grounds to demonstrate that it does contemplate urgent interim reliefs, thereby showing that the plaint in the present case cannot be rejected as being barred by section 12-A of the aforesaid Act”, the court observed.

Bombay High Court Orders Inquiry Into Functioning Of Juvenile Court After Clerk Allegedly Disobeys HC Orders8

Case Title: XYZ v. State of Maharashtra & Anr.

Citation: 2024 LiveLaw (Bom) 298

The Bombay High Court directed the Principal District Judge, Thane to conduct an inquiry into the functioning of Juvenile court in Bhiwandi, Mumbai after a clerk allegedly refused to accept charge sheet in a case despite HC orders.

A division bench of Justice AS Gadkari and Justice Neela Gokhale was dealing with an application filed by a juvenile accused seeking quashing of the FIR.

“Prima facie, it appears to us that the clerk Mr. Sudhir Pawar attached to Juvenile Court at Bhiwandi has blatantly flouted the Orders passed by this Court. He has displayed total disregard for our Orders. It is unfortunate to note that even the Presiding Officer of that Court namely Smt. Seema Ghute is either oblivious to the orders passed by this Court or has feigned deliberate ignorance thereto. We strongly condemn this conduct of Mr. Pawar and find the conduct of the Registry of the said Court disgraceful. It clearly amounts to interference in the smooth administration of criminal justice. It also appears to us that the Presiding Judicial Officer has no control over her Court and, therefore her role also needs to be examined by the Principal District Judge”, the court observed.

Bombay High Court Allows Release Of Film 'Hamare Baarah' After Makers Agree To Delete Certain Portions & Add Disclaimer

Case Title: Azhar Basha Tamboli v. Ravi S Gupta & Ors.

Citation: 2024 LiveLaw (Bom) 299

The Bombay High Court allowed the release of film "Hamare Baarah", on June 21, 2024 after the makers agreed to make certain changes in the movie.

A division bench of Justice BP Colabawalla and Justice Firdosh Pooniwalla passed the order in a writ petition seeking a ban on the film on the ground that it is derogatory to Islam and married Muslim women in India.

The petitioner agreed to not raise any objection to the release of film after the agreed-upon changes are made to the movie.

The makers agreed to mute certain dialogues and a Quranic verse and put two disclaimers of 12 seconds each in the film.

Bombay HC Confirms Conviction of Teacher for Sexually Assaulting 3 Students

Case Title: Ramesh Ratan Jadhav v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 300

The Bombay High Court upheld the conviction of one Ramesh Ratan Jadhav, a primary school teacher, for sexually assaulting three minor girls in the classroom.

Justice Kishore C Sant observed, “The evidence of the victim girls is found to be reliable. The presence of the accused is not denied. Though the defence is taken of animosity as a motive for false implication, the same does not appear to have been taken from the cross-examination & statement under Section 313.”

The prosecution alleged that Jadhav, while teaching in a primary school, sexually assaulted three girls, who were in the second standard. The incidents occurred in the classroom, where Jadhav allegedly touched the girls' vaginas and chests after making them lie down on the table and floor. An FIR was registered on December 24, 2021, at Ratnagiri Rural Police Station, leading to Jadhav's arrest, charge sheet, and trial.

The court noted that the minor victims' evidence was consistent and corroborated by other witnesses, including the male students who were sent outside the classroom. The defence's argument of a false implication due to school management disputes was not supported by the cross-examination or Jadhav's statement under Section 313 of the CrPC, the court noted.

The court found no reason to interfere with the Trial Court's judgment and dismissed the appeal.

Dress Code Violation: Bombay High Court Orders Bar Council Action Against Lawyer For Attending Without Robes

Case Title: KN Surendran Pillai v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 301

The Bombay High Court directed the Bar Council of Maharashtra and Goa (BCMG) to take action against Advocate Jagdish M. Ahuja for appearing in court without the prescribed attire of bands and Advocate's Gown.

Justice Prithviraj K Chavan noted in his order –

“He is not in proper attire, in the sense, he is without bands and Advocate's Gown as prescribed by the Rules. The Bar Council of Maharashtra and Goa shall initiate appropriate action against him.”

Bombay High Court Upholds Entertainment Duty Demand Of Rs. 71 Lakhs On Film & Television Producers Guild Of India For 2006 APSARA Awards

Case Title: Film & Television Producers Guild of India (FPGI) ) v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 302

The Bombay High Court upheld the state government's demand for entertainment duty of Rs. 71,87,500 on the Film & Television Producers Guild of India (FPGI) for organizing the APSARA Awards Function in 2006.

A division bench of Justice KR Shriram and Justice Jitendra Jain, however, struck down the penalty of the same amount imposed of FPGI.

The petitioner contended that the APSARA award function did not fall within the ambit of "entertainment" as defined under Section 2(a) of the Act, especially considering the amendments introduced in 2010 which specifically included "award function" within the scope of entertainment subject to concessional rates. The petitioner argued that since the function was held prior to 2010, it should not be subjected to entertainment duty.

The court noted that while the definition of "award function" was formally inserted into the Act in 2010, the scope of "entertainment" had always encompassed performances and exhibitions, irrespective of the amendment year.

The court rejected the petitioner's contention that subsequent insertion is to be construed to mean that award function would not fall within the definition of “entertainment” prior to 2010 as “misconceived”.

Bombay High Court Upholds ITAT's Order Directing Vodafone India To Deposit Rs.230 Crores For Staying Income Tax Demand

Case Title: Vodafone India Services Pvt. Ltd. v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 303

The Bombay High Court upheld the order passed by the Income Tax Appellate Tribunal (ITAT) directing Vodafone India to deposit Rs. 230 crores for staying income tax demand.

The bench of Justice GS Kulkarni and Justice Somasekhar Sundaresan directed the petitioner, Vodafone India, to deposit an amount of Rs. 230 crore, being the lowest or minimum amount of 20% of the disputed tax demand, which, in our opinion, is clearly in consonance with the provisions of Section 254(2A) of the Income Tax Act.

The first proviso to Section 254 (2A) of the Income Tax Act provides that the ITAT may grant stay under the first proviso, subject to the condition that the assessee deposits not less than 20% of the amount of tax, interest, fee, penalty, or any other sum payable.

Pending Criminal Proceedings Won't Change Nature Of Commercial Dispute: Bombay High Court Declines SBI's Plea To Reject Rs 36 Crore Recovery Suit

Case Title: Bombay Iron And Steel Labour Board v. State Bank of India

Citation: 2024 LiveLaw (Bom) 304

The Bombay High Court dismissed an interim application filed by the State Bank of India (SBI) seeking rejection of a Commercial Summary Suit filed by the Bombay Iron and Steel Labour Board for recovery of deposits worth Rs. 36 crores with interest.

Justice Abhay Ahuja held that the dispute between the parties qualifies as a commercial dispute and is eligible to be tried under the Commercial Courts Act, 2015, as it is a banking transaction.

“the Defendant – bank which is a banking company / banker, has in the ordinary course of its business, accepted the deposits of money from the Plaintiff – Board which is repayable on demand or maturity and issued fixed deposit receipts which are mercantile documents and the suit has been filed for enforcement of the fixed deposit receipts, as the Defendant – bank had failed to repay the amounts payable to the Plaintiff – Board, despite demand / legal notice for recovery, therefore, in my view, the dispute is a commercial dispute, squarely falling within the definition of commercial dispute as defined under Section 2(1)(c)(i) of the Commercial Courts Act.”

The court held that the allegation of fraud, in the plaint would not change the cause of action of the suit, which is a failure of SBI to pay the amount with interest accrued as per the fixed deposit receipts, despite legal notice as well as the pre-institution mediation. The plaintiff claimed that mediation failed as SBI refused to participate.

Non-Communication Of SCN To Call Book Is Fatal; Bombay High Court Quashes SCNs Against ICICI Home Finance

Case Title: ICICI Home Finance Company Ltd. v. UOI

Citation: 2024 LiveLaw (Bom) 305

The Bombay High Court, while quashing show cause notices against ICICI Home Finance Company Ltd., held that non-communication of show cause notices transferred to the call book is fatal.

The bench of Justice K.R. Shriram and Justice Jitendra Jain observed that the reason why the show cause notices were transferred to the call book was because of the SLP pending in the Apex Court in Malabar Management Services Pvt. Ltd. The legality of the issues raised in Malabar Management Services Pvt. Ltd. has attained finality, and in Union of India & Anr. vs. . Intercontinental Consultants & Technocrats Private Limited, the issue is decided in favor of the assessee. Therefore, petitioner's case was kept in abeyance in view of the pending SLP in the Apex Court, and it is accepted that the issue covered the issue in petitioner's case as well. It would, therefore, serve no purpose in adjudicating the show cause notice.

The bench did not accept the suggestion made by the department that they should be permitted to proceed with the adjudication of show cause notices and remarked that it could be nothing but an exercise in futility.

Slump Sale Doesn't Amount To Sale Of Goods Within MVAT Act: Bombay High Court

Case Title: Piramal Enterprises Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 306

The Bombay High Court held that slump sale under the Business Transfer Agreement (BTA) would not amount to sale of goods within the purview of the Maharashtra Value Added Tax (MVAT) Act.

The bench of Justice G. S. Kulkarni and Justice Jitendra Jain observed that it was completely a flawed approach on the part of the reviewing authority to tax part of the BTA considering it to be petitioner's sales/turnover of sales, for the financial year 2010-11 in respect of the amounts of the intangible assets as set out in schedule 3.3 of the BTA. Thus, in the context of the BTA, the reviewing authority could not have regarded the intangible items to be in any manner “sale of goods”, so as to fall within the petitioner's turnover of sales.

The issue raised was whether the department could tax sale of the petitioner's 'Base Domestic Formulation Business' as a “going concern” (slump sale) under the provisions of the Maharashtra Value Added Tax Act, 2002.

Bombay High Court Criticizes Judge For Using “Handicapped” To Express Frustration Over Heavy Caseload

Case Title: Godrej Projects Development and Anr. v. Zakir Ramzan Qureshi and Ors.

Citation: 2024 LiveLaw (Bom) 307

The Bombay High Court criticized an Additional Sessions Judge for using the word “handicapped” to express frustration over heavy case load.

Justice Prithviraj K Chavan observed, “The tone and tenor of the language is unwarranted and unacceptable, in the sense, the Judicial Officer should not have expressed his frustration and inability by using the words “handicapped” as well as non inclination to grant stay.”.

Employee's Conduct Of Filing Petitions Does Not Show Abandonment Of Claim For Reinstatement: Bombay High Court

Case Title: Patil Samgonda Namgonda v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 308

A single judge bench of the Bombay High Court comprising of Gauri Godse, J., while deciding Writ Petition in the case of Shri. Patil Samgonda Namgonda v. State of Maharashtra, held that employee's conduct of filing petitions does not show the abandonment of claim for reinstatement in service.

Employees Once Accepting Promotion On Particular Basis Without Protest, Are Estopped From Challenging The Same: Bombay High Court

Case Title: Shripad Dwarkanath Gupte and Ors v. Union Of India

Citation: 2024 LiveLaw (Bom) 309

A division bench of the Bombay High Court comprising of Devendra Kumar Upadhyaya, CJ. & Arif S. Doctor, J., while deciding Writ Petition in the case of Shri Shripad Dwarkanath Gupte And Ors vs Union Of India, held that employees once accepting the promotions on grade wise basis without protest, are estopped from challenging the same.

Even If Case Doesn't Fall Under Section 36(3) Second Proviso, Court Can Consider Whether To Grant Unconditional Stay: Bombay High Court

Case Title: CFM Asset Reconstruction Pvt. Ltd. and Anr. v. M/s. SAR Parivahan Pvt. Ltd. and Ors.

Citation: 2024 LiveLaw (Bom) 310

The Bombay High Court bench of Justice Firdosh P. Pooniwalla held that even in a case which does not fall under the second proviso of the Section 36(3), by relying on the first proviso, the Court can consider whether to grant unconditional stay of the award or not.

Section 36 of the Arbitration and Conciliation Act, 1996 deals with the enforcement of arbitral awards. It outlines the procedure for enforcing an arbitral award once the time for challenging the award under Section 34 has expired.

Recording Unnatural Offence With Minor Boys | Bombay HC Grants Bail to POCSO Accused Without Prima Facie Sexual Intent

Case Title: Kapil Suresh Taak v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 311

The Bombay High Court granted bail to a man booked for allegedly stripping three teenagers, inserting fingers in the anus, abusing them and assaulting them with a leather belt.

Justice Anil S Kilor allowed the bail application of one Kapil Suresh Taak observing,

“After going through the FIR and the allegations made in the FIR against the Applicant coupled with the material collected during investigation, prima facie nothing is brought on record to show that there was any sexual intent. The case is of physical and mental torture meted out to the minor victims in the background that Applicant and other co-accused have considered them as thieves.”

Jurisdiction of High Courts Under Section 37 Of Arbitration Act Is Limited To Arbitrary, Capricious And Perverse Orders: Bombay High Court

Case Title: M/s Halliburton India Operations Private Limited v. Vision Projects Technologies Pvt. Ltd.

Citation: 2024 LiveLaw (Bom) 312

The Bombay High Court division bench of Justice A.S. Chandurkar and Justice Rajesh S. Patil held that the appellate jurisdiction under Section 37 of the Arbitration Act is limited to cases where the lower court's order was arbitrary, capricious, perverse, or ignored settled legal principles on interlocutory injunctions.

Section 37 of the Arbitration Act allows appeals against specific orders related to arbitration, including refusals to refer to arbitration, measures under Section 9, and decisions on arbitral awards under Section 34.

Bombay High Court Summons Patanjali Director In Trademark Infringement Case

Case Title: Mangalam Organics Ltd. v. Patanjali Ayurved Ltd. & Ors.

Citation: 2024 LiveLaw (Bom) 313

The Bombay High Court directed Patanjali Ayurveda director Rajnish Mishra to appear before it in connection with trademark infringement case filed by Mangalam Organics alleging that Patanjali infringed on packaging and trade dress of its camphor product.

Justice RI Chagla was dealing with a contempt application by Mangalam Organics Ltd. against Patanjali Ayurved Ltd. and others for alleged breach of an ad-interim order dated August 30, 2023.

Pune Porsche Accident | 'All Sympathies For Victims But Court Is Bound To Implement Law': Bombay HC While Releasing Minor Accused

Case Title: XYZ v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 314

The Bombay High Court, while ordering the release of the minor accused in the Pune Porsche car accident case, criticised the “haphazard manner” in which the prosecution and law enforcement agencies handled the situation, influenced by public outcry. The Court said:

“We can only express our dismay and perturbation by describing the whole approach as an unfortunate incident and hope and trust that the future course of action to be chartered, shall be in accordance with existing provisions of law, avoiding any haste. However, at this stage, while pronouncing upon the reliefs sought before us, in the Writ Petition we deem it necessary to discharge our solemn obligation, by adherence to the Rule of Law and we feel bound by it, though the respondents, the law enforcing agencies have succumbed to the public pressure, but we are of the firm opinion that the Rule of law must prevail in every situation, howsoever catastrophic or calamitous the situation may be.”

Calling the accident a “ghastly” incident, a division bench of Justice Bharati Dangre and Justice Manjusha Deshpande emphasized the importance of adhering to the rule of law, quoting Martin Luther King: "Injustice anywhere is a threat to justice everywhere."

The court added, “It is our bounden duty to prioritize justice above everything else, and definitely, we are not swayed away by the uproar created upon occurrence of the ghastly mishap, for which allegedly the CCL is personally responsible and which has resulted in loss of two innocent lives. We have all sympathies for the victim and their families but as a Court of Law, we are bound to implement the law as it stands. Law is an objective thing and there it stands, irrespective of whether it entails any hardship.”

The court said that the minor has to be treated like any other child in conflict with the law. It added:

“The outcry, as a knee jerk reaction to the accident, resulting into a clarion call of “see the accused's action and not his age”, will have to be overlooked upon assimilating that the CCL is a child under the Juvenile Justice Act, being under 18 years and regardless of his crime, he must receive the same treatment, which every other child in conflict with law is entitled to receive, as the purpose of the Act of 2015 is to ensure that children who come in conflict with law are dealt with separately and not like adults.”

Banning Hijab On College Campus Is In Larger Academic Interest, To Avoid Disclosure Of Religion: Bombay High Court While Dismissing Students' Plea

Case Title: Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.

Citation: 2024 LiveLaw (Bom) 315

The Bombay High Court observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole, cap etc. on the campus of a Mumbai college is in students' larger academic interest.

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil while dismissing a writ petition against the dress code by nine female students NG Acharya and D. K. Marathe College of Art, Science and Commerce observed –

“The object behind prescribing the dress code is evident from the Instructions since they state that the intention is that a student's religion ought not to be revealed. It is in larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved. This is for the reason that students are expected to attend the educational institution to receive appropriate instructions for advancement of their academic careers. The insistence for following the dress code is within the college premises and the petitioners' freedom of choice and expression is not otherwise affected.”

The court referred to the Full Bench decision of the Karnataka High Court in Resham v. State of Karnataka, which upheld a government order prescribing a dress code excluding hijabs. In that case, the Karnataka High Court had held that such a dress code aimed at treating students as a homogeneous class to serve constitutional secularism and was not violative of any fundamental rights.

Discrepancies Between Dates Of Creation And Signing Assessment Order; Bombay High Court Quashes MVAT Order Passed Beyond 4 Years

Case Title: Karvy Innotech Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 316

The Bombay High Court, while noting the discrepancies between the dates of creation and signing of the assessment order, quashed the Maharashtra Value Added Tax Act (MVAT) Order, which was passed beyond the limitation period of 4 years.

The bench of Justice K.R. Shriram and Justice Jitendra Jain observed that the return related to 1st April 2015 to 31st March 2016 and, therefore, a four-year period would expire on 31st March 2020, and the digital signature on the order served on the petitioner has been put on 23rd June 2020. In the order filed with the reply, the date typed is March 19, 2020.

Intimate Relationship Between Adults Does Not Justify Sexual Assault On Partner: Bombay High Court While Refusing To Quash Rape Case

Case Title: Amol Bhagwan Nehul v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 317

“A relationship between two adult individuals does not justify sexual assault by one on his partner”, the Bombay High Court observed while refusing to quash a rape case filed by a woman against her boyfriend.

A division bench of Justice AS Gadkari and Justice Dr. Neela Gokhale dismissed a petition seeking the quashing of an FIR and the subsequent charge sheet filed against the petitioner observing –

“The Complainant has clearly alleged that, the Petitioner had established sexual intercourse forcibly with her and without her consent, despite a relationship…it is trite that a relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to indulge in a sexual relationship, the character of the relationship as 'consensual' ceases to exist. The allegations in the present F.I.R. do not demonstrate a continuous consent on the part of the complainant.”

The petitioner is booked for offences under Sections 376, 376(2)(n), 377, 504, and 506 of the IPC, registered at Karad Taluka Police Station, Satara.

Transportation Of Machinery From JNPT To Factory Doesn't Constitute Supply, GST Not Payable: Bombay High Court

Case Title: Fabricship Pvt. Ltd. v. UoI

Citation: 2024 LiveLaw (Bom) 318

The Bombay High Court held that transportation of machinery from Jawaharlal Nehru Port Authority (JNPT) to the factory of the assessee does not constitute supply, and hence GST is not payable.

The bench of Justice KR Shriram and Justice Jitendra Jain observed that the first limb of Section 129(1)(a), which provides for a penalty equal to one hundred percent of the tax payable, cannot be invoked in the present case. The State GST Authority in the impugned order has erroneously applied the rate of GST without first satisfying itself whether the transportation to one's own factory can at all fall within the charging section. The applicability of the rate of tax would get triggered only if a transaction falls within the meaning of the term “supply” as per Section 7 of the Maharashtra Goods and Service Tax Act (MGST Act).

GST Regime At Nascent Stage; Bombay High Court Quashes Order Rejecting IGST Refund

Case Title: Sanjeev Suresh Desai v. UoI

Citation: 2024 LiveLaw (Bom) 319

The Bombay High Court quashed the order rejecting Integrated Goods and Service Tax (IGST) on the grounds that the order was passed without any reason and without application of mind.

The bench of Justice KR Shriram and Justice Jitendra Jain have observed that the CGST Commissioner does not have the power to condone the delay, but the writ court does.

The bench further observed, “Our judicial conscience does not permit us to reject this cause shown as bogus, particularly in view of the fact that the petitioner was an individual and the GST regime was at a nascent stage. Moreover, in both orders impugned in the petitions, there is no whisper about the merits of the application.”