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Bombay High Court Monthly Digest:...

Bombay High Court Monthly Digest: April 2024 [Citations 176 - 236]

Amisha Shrivastava

25 May 2024 12:15 PM IST

Reports/Judgments

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.